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Exhibit 10.22
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of March 6, 2000 (this "Amendment") amends
the Amended and Restated Credit Agreement (the "Credit Agreement") dated as of
January 27, 2000 among SYNAGRO TECHNOLOGIES, INC. (the "Company"), various
financial institutions, CANADIAN IMPERIAL BANK OF COMMERCE, as Syndication Agent
(the "Syndication Agent"), and BANK OF AMERICA, N.A. ("Bank of America"), as
Administrative Agent (in such capacity, the "Administrative Agent"). Unless
otherwise defined herein, capitalized terms used herein have the respective
meanings set forth in the Credit Agreement.
WHEREAS, the Company, Bank of America, CIBC, Inc. ("CIBC"), the
Syndication Agent and the Administrative Agent have entered into the Credit
Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement to (a)
add the parties listed on the signatures hereof under the heading "New Banks"
(collectively the "New Banks") as "Banks" thereunder and (b) make certain other
changes as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
I. SECTION AMENDMENTS. Effective on (and subject to the occurrence of) the
First Amendment Effective Date (as defined below), the Credit Agreement shall be
amended as set forth below.
A. Definition of Revolving Commitment Amount. The definition of
"Revolving Commitment Amount" in Section 1.1 is amended by deleting the amount
"$10,000,000" and substituting "$20,000,000" therefor.
A. Definition of Revolving Termination Date. The definition of
"Revolving Termination Date" in Section 1.1 is amended by deleting the date
"July 27, 2006" and substituting "July 27, 2005" therefor.
A. Section 2.1.2. The proviso in Section 2.1.2 is amended by
deleting the amount "$5,000,000" appearing in clause (i) thereof and
substituting "$15,000,000" therefor.
A. Section 9.14. The first line of clause (b) of Section 9.14 is
amended by deleting the reference to "Schedule 9.15" and substituting "Schedule
9.14" therefor.
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A. Section 11.2.1. The parenthetical clause in the second line of
clause (a) of Section 11.2.1 is amended by deleting the reference to "Section
9.15" and substituting "Section 9.14" therefor.
A. Section 12.1.11. Section 12.1.11 is amended in its entirety to
read as follows:
12.1.11 Change in Control. (a) Any Person or group of Persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act
of 1934, but excluding the executive managers of the Company as of the
Effective Date) shall acquire beneficial ownership (within the meaning
of Rule 13d-3 promulgated under such Act) of more shares of outstanding
voting stock of the Company than the amount of such shares held by GTCR
and its Affiliates; (b) during any 12-month period, individuals who at
the beginning of such period constituted the Company's Board of
Directors (together with any directors designated by GTCR and its
Affiliates and new directors whose election by the Company's Board of
Directors or whose nomination for election by the Company's
shareholders was approved by a vote of at least a majority of the
directors who either were directors at the beginning of such period or
whose election or nomination was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Company; (c) GTCR and its Affiliates shall fail to own beneficially and
of record 16.5% or more of the outstanding shares of voting stock of
the Company; or (d) at least two partners or employees of GTCR, or
individuals otherwise affiliated with GTCR in a manner reasonably
acceptable to the Required Banks, shall fail to be members of the Board
of Directors of the Company (provided that, if any such individual dies
or terminates such individual's affiliation with GTCR, no Event of
Default or Unmatured Event of Default shall arise under this clause (d)
unless 30 days have elapsed after such death or termination without
such individual being replaced by another individual affiliated with
GTCR).
A. Section 14.1. Section 14.1 is amended by inserting the following
prior to the last three sentences thereof:
So long as no Event of Default exists or will result therefrom, this
Agreement may be amended with the written consent of the Required
Banks, the Administrative Agent and the Company (x) to add one or more
credit facilities to this Agreement or to increase the Term A
Commitment Amount, the Revolving Commitment Amount or the Acquisition
Commitment Amount and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in
respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents, (y) to include appropriately the Banks
holding such credit facilities in any determination of the Required
Banks and (z) to permit such additional extensions of credit to share
ratably with the Loans in the application of mandatory prepayments
pursuant to the applicable provisions of this Agreement.
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A. Schedule 2.1. Schedule 2.1 is amended in its entirety by
substituting the Schedule 2.1 attached hereto therefor.
A. Schedule 14.3. Schedule 14.3 is amended in its entirety by
substituting the Schedule 14.3 attached hereto therefor.
I. SECTION REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Administrative Agent and the Banks that (a) the
representations and warranties made in Section 9 (excluding Section 9.8) of the
Credit Agreement are true and correct on and as of the First Amendment Effective
Date with the same effect as if made on and as of the First Amendment Effective
Date (except to the extent such representations and warranties expressly refer
to an earlier date, in which case they were true and correct as of such earlier
date); (b) no Event of Default or Unmatured Event of Default exists or will
result from the execution of this Amendment; (c) no event or circumstance has
occurred since the Closing Date that has resulted, or would reasonably be
expected to result, in a Material Adverse Effect; (d) the execution and delivery
by the Company of this Amendment, the execution and delivery by the Company of
the New Notes (as defined below), and the performance by the Company of its
obligations under the Credit Agreement as amended hereby (as so amended, the
"Amended Agreement") and under the New Notes (i) are within the corporate powers
of the Company, (ii) have been duly authorized by all necessary corporate action
on the part of the Company, (iii) have received all necessary governmental
approval and (iv) do not and will not contravene or conflict with any provision
of law or of the charter or by-laws of the Company or of any indenture, loan
agreement or other contract, or any order or decree, which is binding upon the
Company; and (e) each of the Amended Agreement and each New Note is the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
I. SECTION EFFECTIVENESS. The amendments set forth in Section 1
above shall become effective, as of the day and year first above written, on the
date (the "First Amendment Effective Date") on which the Administrative Agent
has received, (a) a counterpart of this Amendment executed by each of the
parties hereto (or, in the case of any party from which the Administrative Agent
has not received a counterpart hereof, facsimile confirmation of the execution
of a counterpart hereof by such party) and (b) each of the following documents,
each in form and substance satisfactory to the Administrative Agent:
A. Notes. New Notes, substantially in the form of Exhibit A to the
Credit Agreement, payable to the order of each of the New Banks (collectively,
the "New Notes").
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A. Resolutions. Certified copies of resolutions of the Board of
Directors of the Company authorizing the execution and delivery of this
Amendment and the New Notes.
A. Incumbency and Signature Certificate. A certificate of the
Secretary or an Assistant Secretary of the Company certifying the names of the
officer or officers of the Company authorized to sign this Amendment and the New
Notes, together with a sample of the true signature of each such officer (it
being understood that the Administrative Agent and each Bank may conclusively
rely on such certificate until formally advised by a like certificate of any
changes therein).
A. Confirmation. A Confirmation, substantially in the form of
Exhibit A, executed by the Company and each Subsidiary.
A. Opinions. The opinions of (a) Xxxxx, Xxxxxxx & Xxxx LLP, counsel
to the Company, and (b) Xxxxxxxx Xxxxxxx & Xxxxxx LLP, New York counsel to the
Company.
A. Other Documents. Such other documents as the Administrative Agent
or any Bank may reasonably request.
SECTION 4 ADDITION OF BANKS. On the First Amendment Effective Date,
each New Bank shall become a "Bank" under and for all purposes of the Amended
Agreement, shall be bound by the Amended Agreement, and shall be entitled to the
benefits of the Amended Agreement and each other Loan Document, and each Bank
(including Bank of America and CIBC) shall have a Revolving Commitment, an
Acquisition Commitment, a Term A Loan Commitment and a Term B Loan in the amount
set forth on Schedule 2.1. To facilitate the foregoing, each New Bank agrees
that on the First Amendment Effective Date, it will remit to the Administrative
Agent funds in an amount equal the sum of its Revolving Percentage of all
outstanding Revolving Loans, its Acquisition Percentage of all outstanding
Acquisition Loans, its Term A Percentage of all outstanding Term A Loans and the
principal amount of its Term B Loan, and the Administrative Agent agrees to
immediately (i) remit a portion of such funds to Bank of America and CIBC, in
such amounts as are necessary to reduce the Loans of Bank of America and CIBC to
the appropriate amounts after giving effect hereto and (ii) remit the balance of
such funds (if any) to the Company. Each New Bank agrees that all interest and
fees accrued under the Credit Agreement prior to the First Amendment Effective
Date are the property of Bank of America and CIBC. By their signatures below
each of Bank of America and CIBC confirms that it has not sold or otherwise
encumbered its rights under the Credit Agreement or its interest in any Loans
prior to the syndication thereof pursuant to this Amendment.
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SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the First Amendment Effective Date, all
references in the Credit Agreement and each other Loan Document to the "Credit
Agreement" or similar terms shall refer to the Amended Agreement.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 Expenses. The Company agrees to pay the reasonable costs and
expenses of the Administrative Agent (including reasonable attorney fees and
charges) in connection with the preparation, execution and delivery of this
Amendment.
5.4 Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of New York.
5.5 Successors and Assigns. This Amendment shall be binding upon the
Company, the Banks and the Administrative Agent and their respective successors
and assigns, and shall inure to the benefit of the Company, the Banks and the
Administrative Agent and the successors and assigns of the Banks and the
Administrative Agent.
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Delivered at New York, New York, as of the day and year first above
written.
SYNAGRO TECHNOLOGIES, INC.
By
-----------------------------------
Title
------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent
By
-----------------------------------
Title
------------------------------
BANK OF AMERICA, N.A., as Issuing
Bank, Swing Line Bank and a Bank
By
-----------------------------------
Title
------------------------------
CANADIAN IMPERIAL BANK OF
COMMERCE, as Syndication Agent
By
-----------------------------------
Title
------------------------------
CIBC, INC., as a Bank
By
-----------------------------------
Title
------------------------------
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"NEW BANKS":
-----------
SUNTRUST BANK
By
-----------------------------------
Title
------------------------------
FLEET CAPITAL CORPORATION
By
-----------------------------------
Title
------------------------------
IBJ WHITEHALL BANK AND TRUST COMPANY
By
-----------------------------------
Title
------------------------------
U.S. BANK NATIONAL ASSOCIATION
By
-----------------------------------
Title
------------------------------
THE BANK OF NOVA SCOTIA
By
------------------------------------
Title
--------------------------------
KEY CORPORATE CAPITAL INC.
By
-----------------------------------
Title
------------------------------
COBANK, ACB
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By
----------------------------------
Title
-------------------------------
XXXXXX FINANCIAL INC.
By
------------------------------------
Title
--------------------------------
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SCHEDULE 2.1
BANKS AND COMMITMENTS
Revolving Acquisition Term Loan A Term Loan B
Banks Commitment Commitment Commitment Amount Total
------------------------------ -------------- -------------- -------------- -------------- ------------
Bank of America, N.A $ 2,244,444.45 $ 3,366,666.67 $ 5,888,888.88 $ 4,500,000.00 $ 16,000,000
------------------------------ -------------- -------------- -------------- -------------- ------------
CIBC, Inc. $ 2,244,444.45 $ 3,366,666.67 $ 5,888,888.88 $ 4,500,000.00 $ 16,000,000
------------------------------ -------------- -------------- -------------- -------------- ------------
Suntrust Bank $ 2,250,000.00 $ 3,375,000.00 $ 4,500,000.00 $ 3,375,000.00 $ 13,500,000
------------------------------ -------------- -------------- -------------- -------------- ------------
Fleet Capital $ 2,083,333.33 $ 3,125,000.00 $ 4,166,666.67 $ 3,125,000.00 $ 12,500,000
Corporation
------------------------------ -------------- -------------- -------------- -------------- ------------
IBJ Whitehall Bank $ 1,833,333.33 $ 2,750,000.00 $ 3,666,666.67 $ 2,750,000.00 $ 11,000,000
and Trust Company
------------------------------ -------------- -------------- -------------- -------------- ------------
U.S. Bank National $ 2,444,444.45 $ 3,666,666.66 $ 4,888,888.89 $ 0.00 $ 11,000,000
Association
------------------------------ -------------- -------------- -------------- -------------- ------------
The Bank of Nova
Scotia $ 1,833,333.33 $ 2,750,000.00 $ 3,666,666.67 $ 2,750,000.00 $ 11,000,000
------------------------------ -------------- -------------- -------------- -------------- ------------
Key Corporate $ 1,833,333.33 $ 2,750,000.00 $ 3,666,666.67 $ 2,750,000.00 $ 11,000,000
Capital, Inc.
------------------------------ -------------- -------------- -------------- -------------- ------------
CoBank, ACB $ 1,833,333.33 $ 2,750,000.00 $ 3,666,666.67 $ 2,750,000.00 $ 11,000,000
------------------------------ -------------- -------------- -------------- -------------- ------------
Xxxxxx Financial
Institution $ 1,400,000.00 $ 2,100,000.00 $ 0.00 $ 3,500,000.00 $ 7,000,000
------------------------------ -------------- -------------- -------------- -------------- ------------
TOTAL $20,000,000.00 $30,000,000.00 $40,000,000.00 $30,000,000.00 $120,000,000
------------------------------ -------------- -------------- -------------- -------------- ------------
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SCHEDULE 14.3
ADDRESSES FOR NOTICES
SYNAGRO TECHNOLOGIES, INC.
0000 Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: J. Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A., as Administrative Agent
Agency Management Services
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CANADIAN IMPERIAL BANK OF COMMERCE, as Syndication Agent
2 Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A., as Issuing Bank, as Swing Line Bank, and as a Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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CIBC INC., as a Bank
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: R. Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SUNTRUST BANK, as a Bank
00 Xxxx Xxxxx
Mail Code 000, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
FLEET CAPITAL CORPORATION, as a Bank
Xxx Xxxxx Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
IBJ WHITEHALL BANK AND TRUST COMPANY, as a Bank
Xxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
U.S. BANK NATIONAL ASSOCIATION, as a Bank
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
00
XXX XXXX XX XXXX XXXXXX, as a Bank
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Houston Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
KEY CORPORATE CAPITAL INC., as a Bank
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
COBANK, ACB as a Bank
0000 Xxxxx Xxxxxx Xxxxxx
Communications, Energy & Infrastructure Group
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
XXXXXX FINANCIAL, INC., as a Bank
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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EXHIBIT A
CONFIRMATION
Dated as of March 6, 2000
To: Bank of America, N.A., individually and as administrative agent (in
such capacity, the "Administrative Agent"), Canadian Imperial Bank of
Commerce, individually and as syndication agent (in such capacity, the
"Syndication Agent"), and the other financial institutions party to the
Restated Credit Agreement referred to below
Please refer to the following:
(a) the Amended and Restated Credit Agreement dated as of January
27, 2000 (the "Restated Credit Agreement") among Synagro Technologies, Inc. (the
"Company"), various financial institutions, the Syndication Agent and the
Administrative Agent;
(b) the First Amendment dated as of March 6, 2000 to the Restated
Credit Agreement (the "First Amendment");
(c) the Guaranty dated as of October 7, 1998 by each of the
undersigned (other than the Company) in favor of Bank of America, N.A. (then
known as Bank of America National Trust and Savings Association), in its
capacity as agent, and the Banks (as defined therein);
(d) the Company Pledge Agreement dated as of October 7, 1998
between the Company and Bank of America, N.A., in its capacity as agent;
(e) the Subsidiary Pledge Agreements dated as of October 7, 1998
between each of Synagro Midwest, Inc., Synagro Southwest, Inc., Synagro
Southeast, Inc., Synagro West, Inc. and Synagro Northeast, Inc. and Bank of
America, N.A., in its capacity as agent;
(f) the Collateral Assignments of Partnership Interests dated as
of January 27, 2000 between each of the Company, Residual Technologies, L.P.,
Fairhaven Residual Systems, Inc., Residual Technologies Systems, Inc.,
Netco-Waterbury Systems, Inc., New Haven Residuals Systems, Inc.,
Netco-Residuals Management, L.P. and Netco-Residuals Management Systems, Inc.
and Bank of America, N.A., in its capacity as agent; and
(g) the Restated Security Agreement dated as of January 27, 2000
among the undersigned and the Administrative Agent.
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Each document referred to in items (b) through (g) above is called a
"Credit Document". Capitalized terms used but not defined herein shall have the
meanings set forth in the Restated Credit Agreement.
Each of the undersigned hereby confirms to the Banks and the
Administrative Agent that each Credit Document to which such undersigned is a
party continues in full force and effect on the date hereof after giving effect
to the First Amendment and is the legal, valid and binding obligation of such
undersigned, enforceable against such undersigned in accordance with its terms.
IN WITNESS WHEREOF, the undersigned have executed this Confirmation as
the date first above written.
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SYNAGRO TECHNOLOGIES, INC.
SYNAGRO WEST, INC.
SYNAGRO OF CALIFORNIA, INC. (formerly known
as Pima Gro Systems, Inc.)
SYNAGRO COMPOSTING COMPANY OF
CALIFORNIA, INC. (formerly known as
Recyc, Inc.)
SYNAGRO MIDWEST, INC.
SYNAGRO OF MICHIGAN, INC. (formerly known as
National Resource Recovery, Inc.)
SYNAGRO OF WISCONSIN, INC. (formerly known as
A&J Cartage, Inc.)
SYNAGRO SOUTHWEST, INC.
SYNAGRO OF TEXAS - VITAL-CYCLE, INC.
SYNAGRO OF TEXAS - CDR, INC. (formerly known
as Synagro of Texas, Inc. and CDR
Environmental, Inc.)
SYNAGRO SOUTHEAST, INC.
SYNAGRO OF NORTH CAROLINA - AMSCO, INC.
SYNAGRO OF FLORIDA - ANTI-POLLUTION, INC.
SYNAGRO OF NORTH CAROLINA - EWR, INC.
(formerly known as Synagro of
North Carolina, Inc. and Environmental
Waste Recycling, Inc.)
SYNAGRO OF FLORIDA - A&J, INC. (formerly
known as A&J Cartage Southwest, Inc.)
SYNAGRO NORTHEAST, INC.
SYNAGRO MID-ATLANTIC, INC. (formerly known as
CDR Mid-Atlantic, a division
of CDR Environmental, Inc.)
MICHIGAN ORGANIC RESOURCES, INC.
ORGANI-GRO, INC.
ST INTERCO, INC.
COMPOSTING CORPORATION OF AMERICA
NEW HAVEN RESIDUALS SYSTEMS, INC.
RESIDUAL TECHNOLOGIES SYSTEMS, INC.
FAIRHAVEN RESIDUAL SYSTEMS, INC.
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NEW ENGLAND TREATMENT COMPANY, INC.
NETCO-CONNECTICUT, INC.
NETCO-WATERBURY SYSTEMS, INC.
NETCO-RESIDUALS MANAGEMENT SYSTEMS, INC.
XXXXX WATER ANALYSIS, INC.
ECOSYSTEMATICS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
NETCO-RESIDUALS MANAGEMENT, LIMITED
PARTNERSHIP
By: Netco-Residuals Management Systems, Inc.,
its General Partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
RESIDUAL TECHNOLOGIES, LIMITED PARTNERSHIP
By: Residual Technologies Systems, Inc.,
its General Partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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FAIRHAVEN RESIDUALS, LIMITED PARTNERSHIP
By: Fairhaven Residual Systems, Inc.,
its General Partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PROVIDENCE SOILS, LLC
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
