EXHIBIT 10.1
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Third Amendment")
is made and entered into as of the 12th day of May, 1997, by and among
NORCAL WASTE SYSTEMS, INC., a California corporation (the "Borrower"), its
Subsidiaries (other than the Excluded Subsidiaries) (collectively, the
"Guarantors"), BANKBOSTON, N.A. (f/k/a The First National Bank of Boston),
a national banking association (in its individual capacity, "BKB"), and the
other financial institutions party hereto (collectively, the "Banks"), and
BKB as the agent for the Banks (in such capacity, the "Agent").
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent entered into
a Revolving Credit Agreement dated as of November 21, 1995 (as heretofore
amended, the "Credit Agreement"), pursuant to which the Banks extended credit
to the Borrower on the terms set forth therein;
WHEREAS, the parties desire to amend the Credit Agreement on the terms and
conditions 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 agree to amend the Credit Agreement as follows:
1. Definitions. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
2. Amendment to Section 1 of the Credit Agreement.
(a) Section 1 of the Credit Agreement is hereby amended by inserting therein
the following newly defined term in the appropriate alphabetical sequence:
Scheduled ESOP Amortization. With respect to each fiscal year, the Borrower's
ESOP expense generated by contributions from time to time to the ESOP Account
(referred to in the most recent financial statements of the Borrower delivered
pursuant to Section 6.4 hereof), which contributions shall be in a maximum
amount of $9,794,885 per fiscal year, commencing with the fiscal year ended
September 30, 1996 and ending with the fiscal year ending September 30, 2008,
for the purpose of enabling the ESOP to repay its loans from the Borrower.
3. Amendment to Section 8.3 of the Credit Agreement. Section 8.3 of the Credit
Agreement is hereby amended by deleting said section in its entirety and
replacing it with the following new section:
Section 8.3. Consolidated Net Worth.
The Borrower and the Guarantors will not permit Consolidated Net Worth at any
time to be less than the sum of (a) Consolidated Net Worth (including any net
gains attributable to the refinancing of the Borrower's existing Indebtedness)
reflected on the balance sheet delivered to the Agent on the Closing Date and
dated as of such date minus $5,000,000, plus (b) on a cumulative basis
determined quarterly at the end of each fiscal quarter commencing with the
fiscal quarter ending December 31, 1995, seventy-five percent (75%) of (i)
Consolidated Net Income, plus (ii) any decrease in the "Scheduled Contribution
to ESOP Account" as reflected on the most recent financial statements of the
Borrower delivered in accordance with Section 6.4 hereof other than any such
decreases resulting from the Scheduled ESOP Amortization (to the extent that
the sum of clauses (i) and (ii) yields a positive number) (or in the event
that the Senior Debt Rating at the end of such fiscal quarter is BB+ or
better, then only fifty percent (50%) of the sum of clauses (i) and (ii)
with respect to such quarter shall be added), plus (c) one hundred percent
(100%) of the amount by which Consolidated Net Worth is increased by equity
issuances (or in the event that the Senior Debt Rating is BB+ or better at
the time of such equity issuance, then only seventy-five percent (75%) of
such amount shall be added), plus (d) one hundred percent (100%) of any
decrease from the Closing Date in the "Pension Liability Adjustment Account"
as reflected on the most recent financial statements of the Borrower
delivered pursuant to Section 6.4 hereof, plus (e) the lesser of (i) the
aggregate Scheduled ESOP Amortization, and (ii) one hundred percent (100%)
of any decrease from the Closing Date in the "Scheduled Contribution to ESOP
Account" as reflected on the most recent financial statements of the
Borrower delivered pursuant to Section 6.4 hereof. Further, the amount of
required minimum Consolidated Net Worth required hereunder shall decrease
by one hundred percent (100%) of any increases from the Closing Date in the
"Pension Liability Adjustment Account" as reflected on the most recent
financial statements of the Borrower delivered in accordance with Section
6.4 hereof, provided that at the time of such calculation the "Pension
Liability Adjustment Account" is less than (i) $12,000,000 during the
period commencing on the Closing Date and ending on September 30, 1998
and (ii) $10,000,000 for any period occurring thereafter.
4. Amendment to Exhibit C of the Credit Agreement. The Credit Agreement is
hereby further amended by deleting Exhibit C thereto in its entirety and
replacing it with Exhibit C attached hereto.
5. Representations and Warranties. The Borrower and the Guarantors jointly
and severally represent and warrant as follows:
(a) The execution and delivery of this Third Amendment and the Credit
Agreement, as modified by this Third Amendment, and the performance of
the transactions contemplated hereby and thereby (i) are within the
corporate authority of the Borrower and each of the Guarantors, (ii)
have been duly authorized by all necessary corporate proceedings on the
part of the respective Borrower or Guarantor, (iii) do not conflict with
or result in any material breach or contravention of any provision of law,
statute, rule or regulation to which the Borrower or any Guarantor is
subject or any judgment, order, writ, injunction, license or permit
applicable to the Borrower or any Guarantor so as to materially adversely
affect the assets, business or any activity of the Borrower and the
Guarantors as a whole, and (iv) do not conflict with any provision of the
corporate charter or bylaws of the Borrower or any Guarantor or any
agreement or other instrument binding upon the Borrower or any Guarantor.
There have been no amendments to the charter documents or bylaws of the
Borrower or any Guarantor since November 21, 1995, except as otherwise
disclosed to the Banks.
(b) The execution and delivery of this Third Amendment and the Credit
Agreement, as modified by this Third Amendment, and the performance of
the transactions contemplated hereby and thereby will result in valid
and legally binding obligations of the Borrower and the Guarantors
party thereto enforceable against each in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting generally the enforcement of creditors
rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
(c) The execution and delivery by the Borrower and the Guarantors of this
Third Amendment and the Credit Agreement, as modified by this Third
Amendment, and the consummation by the Borrower and the Guarantors of the
transactions contemplated hereby and thereby do not require any approval
or consent of, or filing with, any governmental agency or authority other
than those already obtained.
(d) The representations and warranties contained in the Credit Agreement
or in any document or instrument delivered pursuant to or in connection
with the Credit Agreement or this Third Amendment were true as of the date
as of which they were made and are true at and as of the Effective Date
(as such term is defined in Section 11 hereof) with the same effect as if made
at and as of that time (except to the extent of changes resulting from
(i) transactions contemplated or permitted by the Credit Agreement,
(ii) changes disclosed to and approved by the Agent and the Banks, as
applicable, and (iii) changes occurring in the ordinary course of
business which singly or in the aggregate are not materially adverse,
and except to the extent that such representations and warranties relate
expressly and solely to an earlier date).
(e) The Borrower and the Guarantors have performed and complied, and have
caused the Borrower's Subsidiaries to perform and comply, with all terms
and conditions in the Credit Agreement and this Third Amendment, required
to be performed or complied with by them prior to or at the Effective Date,
and no Default or Event of Default or condition which would result in a
Default or Event of Default has occurred and is continuing.
6. 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. Each of the
Guarantors hereby confirms that the guaranty contained in Section 27 of the
Credit Agreement and its Guaranteed Obligations remain in full force
and effect. This Third Amendment and the Credit Agreement shall hereafter
be read and construed together as a single document, and all references
in the Credit Agreement, any other Loan Document or any agreement or
instrument related to the Credit Agreement shall hereafter refer to the
Credit Agreement as amended by this Third Amendment.
7. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT
REFERENCE TO CONFLICT OF LAWS) AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT
IN ACCORDANCE WITH SUCH LAWS.
8. Counterparts. This Third 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.
9. Headings. Headings or captions used in this Third Amendment are for
convenience of reference only and shall not define or limit the
provisions hereof.
10. Expenses. The Borrower and the Guarantors hereby jointly and
severally agree to pay to the Agent, on demand by the Agent, all
reasonable out-of-pocket costs and expenses incurred or sustained
by the Agent in connection with the preparation of this Third
Amendment (including reasonable legal fees).
11. Effectiveness. This Third Amendment shall become effective upon
the execution and delivery by the Borrower, the Guarantors, the Agent
and the Majority Banks of this Third Amendment (the "Effective Date").
IN WITNESS WHEREOF, the parties have executed this Third Amendment
under seal as of the date first above written.
THE BORROWER:
NORCAL WASTE SYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
President
THE GUARANTORS:
ALTA ENVIRONMENTAL SERVICES, INC.
ALTA EQUIPMENT LEASING CO., INC.
AUBURN PLACER DISPOSAL SERVICE
B & J DROP BOX
BUONATERRA, INC.
BUTTE DISPOSAL & RECYCLING, INC.
CITY GARBAGE COMPANY OF EUREKA
CONSOLIDATED ENVIRONMENTAL INDUSTRIES, INC.
DEL NORTE DISPOSAL, INC.
DEL NORTE RECOVERY, INC.
XXXXX SANITARY SERVICE
ENVIROCAL, INC.
EXCEL ENVIRONMENTAL, INC.
FOOTHILL DISPOSAL CO., INC.
GOLDEN GATE DISPOSAL & RECYCLING COMPANY
INTEGRATED ENVIRONMENTAL SYSTEMS, INC.
LOS ALTOS GARBAGE COMPANY
MACOR, INC.
XXXXX LAND RECLAMATION COMPANY, INC.
NORCAL/SAN BERNARDINO, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
President
NORCAL/SAN DIEGO, INC.
NORCAL SERVICE CENTER, INC.
NORCAL WASTE SERVICES OF SACRAMENTO, INC.
NORCAL WASTE SOLUTIONS, INC.
NORCAL WASTE SYSTEMS OF SOUTHERN CALIFORNIA, INC.
OROVILLE SOLID WASTE DISPOSAL, INC.
SAN BRUNO GARBAGE CO., INC.
SANITARY FILL COMPANY
SOUTH VALLEY REFUSE DISPOSAL, INC.
SOUTHERN HUMBOLDT DISPOSAL SERVICE, INC.
SUNSET PROPERTIES, INC.
SUNSET SCAVENGER COMPANY
VACAVILLE SANITARY SERVICE
VALLEJO GARBAGE SERVICE, INC.
WEST COAST RECYCLING CO.
WESTERN PLACER RECOVERY COMPANY
YUBA XXXXXX DISPOSAL, INC.
ZANKER ROAD RESOURCE MANAGEMENT CO.
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
President
TRI-COUNTY DEVELOPMENT CO., a general partnership
By: NORCAL WASTE SYSTEMS, INC., General Partner
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
President
By: ENVIROCAL, INC., General Partner
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
President
VACAVILLE FILL, a general partnership
By: ALTA ENVIRONMENTAL SERVICES, INC., General Partner
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
President
By: B & J DROP BOX, General Partner
By: /s/ XXXXXXX X. XXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxx
President
THE BANKS AND AGENT:
BANKBOSTON, N.A. (f/k/a The First National Bank of Boston), individually
and as Agent
By: /s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Vice President
THE BANK OF NOVA SCOTIA
By: /s/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
Relationship Manager
BANQUE PARIBAS
By: /s/ XXXXX XXXXX
Xxxxx X. Xxxxx
Assistant Vice President
By: /s/ XXXXX X. XXXXXXX
Xxxxx Xxxxxxx
Vice President
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ XXX XXXXXXXXXXX
Xxx Xxxxxxxxxxx
Assistant Vice President
By: /s/ XXXXXXX XXXXXX
Xxxxxxx Xxxxxx
Assistant Treasurer
FUJI BANK
By:
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ T. XXXXXX XXXXXXX XX
T. Xxxxxx Xxxxxxx XX
Deputy General Manager
By: /s/ XXXXX XXXX
Xxxxx Xxxx
Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXXX XXXXXXXXXX
Xxxxx X. Xxxxxxxxxx
Vice President
XXXXX FARGO BANK, N.A.
By:
Xxxxx X. Xxxxx
Vice President
