Exhibit 10.4
SECOND AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AND CONSENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT AND CONSENT (this "Second Amendment") is made and entered into as
of the 14th day of February, 2000, by and among XXXXXXX WASTE SYSTEMS, INC., a
Delaware corporation (the "Parent"), its Subsidiaries (other than Excluded
Subsidiaries) listed on SCHEDULE 1 to the Credit Agreement defined below
(together with the Parent, collectively the "Borrowers"), BANKBOSTON, N.A.
("BKB"), KEYBANK NATIONAL ASSOCIATION ("Keybank"), BANK OF AMERICA, N.A.
("BOA"), COMERICA BANK, LASALLE BANK NATIONAL ASSOCIATION, CREDIT LYONNAIS,
FIRST VERMONT BANK AND TRUST COMPANY, CIBC, INC. and CANADIAN IMPERIAL BANK OF
COMMERCE ("CIBC Canada"), a Canadian chartered bank (acting in its individual
capacity), and such banks or other financial institutions which may become a
party thereto (the "Banks"), BkB as Administrative Agent for the Banks (the
"Administrative Agent"), Keybank as Documentation Agent, BOA as Syndication
Agent and CIBC Canada as the Canadian Agent (the "Canadian Agent", and together
with the Administrative Agent, the "Bank Agents").
WHEREAS, the Borrowers, the Banks and the Bank Agents are parties to an
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
December 14, 1999, (as amended by a First Amendment to Revolving Credit and Term
Loan Agreement dated as of February 2, 2000, and as the same may be further
amended and in effect from time to time, the "Credit Agreement"), pursuant to
which the Banks have extended credit to the Borrowers on the terms set forth
therein;
WHEREAS, under Section 8.1(j) of the Credit Agreement the Banks
permitted the Indebtedness of MERC with respect to the ING L/C for a period not
to exceed sixty (60) days from the Effective Date, unless the Required Banks
consented in writing to a longer term;
WHEREAS, under Section 8.2(i) of the Credit Agreement the Banks
permitted ING's mortgage on the MERC facility located in Saco, Maine for a
period not to exceed sixty (60) days from the Effective Date, unless the
Required Banks consented in writing to a longer term;
WHEREAS, the Borrowers have requested, and the Required Banks have
consented to, an extension of the period during which the Indebtedness of MERC
with respect to the ING L/C and ING's mortgage on the MERC facility will be
permitted;
WHEREAS, the Borrowers have also requested that the Banks and the Agent
make certain amendments to the Credit Agreement, and the Banks and
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the Agent are willing to amend the Credit Agreement on the terms set forth
herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT. As of the Second
Amendment Effective Date (as hereinafter defined), Section 1.1 of the Credit
Agreement is hereby amended by deleting the following definitions in their
entirety and restating them as follows:
"BORROWERS. Collectively, (a) the Domestic Borrowers, jointly
and severally, with respect to Domestic Loans and Domestic Letters of
Credit, and (b) each of the Canadian Borrowers, jointly and severally,
to the fullest extent permitted by law, with respect to Canadian
Loans, Canadian Letters of Credit and Bankers' Acceptances.
PRICING RATIO. At the end of any fiscal quarter of the
Borrowers, the ratio of (a) Consolidated Funded Indebtedness to (b)
EBITDA, as calculated on the Compliance Certificate delivered by the
Borrowers pursuant to Section 7.4(c). For the purposes of the Pricing
Ratio, EBITDA (a) for the fiscal quarter ending January 31, 2000,
shall be actual combined EBITDA of the Parent and its Subsidiaries
(other than the Insurance Subsidiary and its De Minimus Subsidiaries)
and KTI and its Subsidiaries (other than PERC, Timber, AAR and its De
Minimis Subsidiaries) (as approved by the Administrative Agent) (the
"Combined First Quarter Amount") for such quarter multiplied by four
(4), (b) for the fiscal quarter ending April 30, 2000, shall be the
Combined First Quarter Amount PLUS EBITDA for the fiscal quarter
ending on such date multiplied by two (2), (c) for the fiscal quarter
ending July 31, 2000, shall be the Combined First Quarter Amount PLUS
EBITDA for the period of two consecutive fiscal quarters ending on
such date multiplied by 1.33, (d) for the fiscal quarter ending
October 31, 2000, shall be the Combined First Quarter Amount PLUS
EBITDA for the period of three fiscal quarters ending on such date,
and (e) for the fiscal quarter ending January 31, 2001 and all fiscal
quarters ending thereafter, shall be the EBITDA for the period of four
(4) consecutive fiscal quarters ending on such date."
3. AMENDMENTS TO SECTION 5.7 OF THE CREDIT AGREEMENT. As of the Second
Amendment Effective Date (as hereinafter defined), Section 5.7 of the Credit
Agreement is hereby amended by deleting Section 5.7 in its entirety and
restating it as follows:
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"Section 5.7. INTEREST ON OVERDUE AMOUNTS. Overdue principal
and (to the extent permitted by applicable law) interest on the Loans
and all other overdue amounts payable hereunder or under any of the
other Loan Documents shall bear interest compounded monthly and
payable on demand at a rate per annum equal to two percentage points
(2.00%) PLUS (a) in the case of the Revolving Credit Loans, the
Applicable Rate for Base Rate Loans, or (b) in the case of the Term
Loan, the Base Rate plus the Term Loan Base Rate Margin, until such
amount shall be paid in full (after as well as before judgment)."
4. CONSENT TO ING L/C EXTENSION. Pursuant to the provisions of
subsection (j) of Section 8.1 and subsection (i) of Section 8.2 of the Credit
Agreement, each of the Banks hereby consents to change each reference to the
period "sixty (60) days from the Effective Date" in subsection (j) of Section
8.1 and subsection (i) of Section 8.2 of the Credit Agreement to read
"ninety-two (92) days from the Effective Date"; PROVIDED that no later than
March 15, 2000, either (a) the ING L/C shall be replaced by a Letter of Credit
under the Credit Agreement, or (b) the ING L/C shall be cancelled and the
Indebtedness of MERC with respect to the ING L/C shall be paid in full.
5. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Second Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Second Amendment.
6. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7. COUNTERPARTS. This Second Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. EFFECTIVENESS. This Second Amendment shall become effective (the
"Second Amendment Effective Date") upon its execution and delivery by the
Required Banks and the Borrowers.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this
Second Amendment as of the date first set forth above.
BANKBOSTON, N.A.,
individually and as Administrative Agent
By:
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Name:
-----------------------------------
Title:
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KEYBANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By:
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Name:
-----------------------------------
Title:
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BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By:
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Name:
-----------------------------------
Title:
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COMERICA BANK
By:
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Name:
-----------------------------------
Title:
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CIBC INC.
By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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LASALLE BANK NATIONAL
ASSOCIATION
By:
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Name:
-----------------------------------
Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
-----------------------------------
Title:
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FIRST VERMONT BANK AND TRUST
COMPANY
By:
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Name:
-----------------------------------
Title:
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CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as
Canadian Agent
By:
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Name:
-----------------------------------
Title:
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SANKATY HIGH YIELD PARTNERS II, L.P.
By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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GREAT POINT CLO 1999-1 LTD.
By:
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Name:
-----------------------------------
Title:
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NORTH AMERICAN SENIOR FLOATING RATE
By:
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Name:
-----------------------------------
Title:
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XXXXXX FLOATING RATE FUND
By:
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Name:
-----------------------------------
Title:
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SEABOARD CAPITAL PARTNERS, L.P.
By:
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Name:
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Title:
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SEABOARD FUND LIMITED
By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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CARLYLE HIGH YIELD PARTNERS II, LTD.
By:
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Name:
-----------------------------------
Title:
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CYPRESSTREE INVESTMENT
PARTNERS I, LTD
By:
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Name:
-----------------------------------
Title:
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XXXXXXXXXXX SENIOR FLOATING
RATE FUND
By:
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Name:
-----------------------------------
Title:
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CREDIT SUISSE FIRST BOSTON
By:
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Name:
-----------------------------------
Title:
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By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital Luxembourg, as
Collateral Manager
By:
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Name:
-----------------------------------
Title:
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FRANKLIN FLOATING RATE TRUST
By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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DOMESTIC BORROWERS:
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ALL CYCLE WASTE, INC.
BRISTOL WASTE MANAGEMENT, INC.
CASELLA T.I.R.E.S., INC.
CASELLA TRANSPORTATION, INC.
XXXXXXX WASTE MANAGEMENT, INC.
XXXXXXX WASTE MANAGEMENT OF N.Y., INC.
XXXXXXX WASTE MANAGEMENT OF PENNSYLVANIA, INC.
XXXXXXX WASTE SYSTEMS, INC.
GRASSLANDS INC.
XXXXX C & D DISPOSAL, INC.
XXXXX HOLLOW REGENERATION CORP.
NATURAL ENVIRONMENTAL, INC.
NEWBURY WASTE MANAGEMENT, INC.
NEW ENGLAND WASTE SERVICES, INC.
NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC.
NEW ENGLAND WASTE SERVICES OF N.Y., INC.
NEW ENGLAND WASTE SERVICES OF VERMONT, INC.
NORTH COUNTRY ENVIRONMENTAL SERVICES, INC.
NORTHERN SANITATION, INC.
PINE TREE WASTE, INC.
RESOURCE RECOVERY OF CAPE COD, INC.
RESOURCE TRANSFER SERVICES, INC.
RESOURCE WASTE SYSTEMS, INC.
XXXXXX ENVIRONMENTAL RECOVERY FACILITIES, INC.
XXXXXX ENVIRONMENTAL SERVICES
XXXXXXX LANDFILL, INC.
SUNDERLAND WASTE MANAGEMENT, INC.
WASTE-STREAM INC.
WESTFIELD DISPOSAL SERVICE, INC.
XXXXXXX BROTHERS, INC.
By:
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Name: Xxxxx X. Xxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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ADVANCED ENTERPRISES RECYCLING INC.
THE AFA GROUP, INC.
AFA PALLET, INC.
AGRO PRODUCTS, INC.
ALLIED EQUIPT. & SALES CORP., INC.
AMERICAN SUPPLIES SALES GROUP, INC.
ARTIC INC.
ATLANTIC TRANSPORTATION TECHNOLOGIES INC.
DATA DESTRUCTION SERVICES, INC.
FAIRFIELD COUNTY RECYCLING, INC.
FCR CAMDEN, INC.
FCR FLORIDA, INC.
FCR GEORGIA, INC.
FCR GREENSBORO, INC.
FCR GREENVILLE, INC.
FCR XXXXXX, INC.
FCR PLASTICS, INC.
FCR REDEMPTION, INC.
FCR TENNESSEE, INC.
FCR VIRGINIA, INC.
FCR, INC.
KTI BIO FUELS, INC.
KTI ENERGY OF MARTINSVILLE, INC.
KTI ENERGY OF VIRGINIA, INC.
KTI ENVIRONMENTAL GROUP, INC.
KTI NEW JERSEY FIBERS, INC.
KTI OPERATIONS, INC.
KTI RECYCLING OF ILLINOIS, INC.
KTI RECYCLING OF NEW ENGLAND, INC.
KTI RECYCLING OF NEW JERSEY, INC.
KTI RECYCLING, INC.
KTI SPECIALTY WASTE SERVICES, INC.
KTI TRANSPORTATION SERVICES, INC.
KTI, INC.
MANNER RESINS, INC.
MECKLENBURG COUNTY RECYCLING, INC.
POWER SHIP TRANSPORT, INC.
TOTAL WASTE MANAGEMENT CORP.
U.S. FIBER, INC.
By:
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Name: Xxxxx X. Xxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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PENOBSCOT ENERGY RECOVERY COMPANY, LIMITED PARTNERSHIP
By: PERC Management Company Limited Partnership,
general partner
By: PERC, Inc., general partner
By:
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Name: Xxxxx X. Xxxxx
Title: Treasurer
PERC MANAGEMENT COMPANY, LIMITED PARTNERSHIP
By: PERC, Inc., general partner
By:
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Name: Xxxxx X. Xxxxx
Title: Treasurer
CANADIAN BORROWERS:
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KTI RECYCLING OF CANADA, INC.
1316991 ONTARIO, INC.
By:
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Name: Xxxxx X. Xxxxx
Title: Treasurer
