SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
is made as of October 5, 1995, by and among LaSalle National
Bank, a national banking association with its principal offices
located in Chicago, Illinois, as agent for the Lenders hereunder
(the "Agent"), various financial institutions which are, or may
become, signatories or parties hereto (individually, a "Lender"
and collectively, the "Lenders"), and Continental Waste
Industries, Inc., a Delaware corporation ("CWI"), together with
its Subsidiaries, which currently consist of Xxxxxx Brothers,
Inc., a Tennessee corporation, Xxxxxx Brothers Waste, Inc., a
Tennessee corporation, Berrien County Landfill, Inc., a Michigan
corporation, Bluegrass Recycling & Transfer Company, a Kentucky
corporation, Commercial Waste Disposal, Inc., a Kentucky
corporation, Xxxxxxxxx Waste, Inc., a Tennessee corporation, CWI
of Illinois, Inc., an Illinois corporation, CWI of Missouri,
Inc., a Missouri corporation, CWI Venture, Inc., a New Jersey
corporation, FLL, Inc., a Michigan corporation, G.E.M.
Environmental Management, Inc., a Delaware corporation, Gila Bend
Regional Landfill, Inc., an Arizona corporation, Greenfield
Environmental Development Corp., a Delaware corporation, Jamax
Corporation, an Indiana corporation, Karat Corp., a New Jersey
corporation, Midwest Material Management, Inc., an Indiana
corporation, Northwest Tennessee Disposal Corporation, a
Tennessee corporation, Prichard Landfill Corporation, a West
Virginia corporation, Xxxxx Hollow Landfill Corp., a West
Virginia corporation, Sanifill, Inc., a Tennessee corporation,
Southern Illinois Regional Landfill, Inc., an Illinois
corporation, South Trans, Inc., a New Jersey corporation,
Springfield Environmental, Inc., a Delaware corporation,
Springfield Environmental, Inc., an Indiana corporation, Triple G
Landfills, Inc., an Indiana corporation, United Refuse Co., Inc.,
an Indiana corporation, Victory Environmental Services, Inc., a
Delaware corporation, Victory Waste Incorporated, a California
corporation, WPP Continental de Costa Rica S.A., a Costa Rican
corporation, WPP Services, Inc., an Ohio corporation, ASCO
Sanitation, Inc., a Mississippi corporation, Xxxxxxx Transfer,
Inc., a Missouri corporation, Xxxxxxxx Refuse Co., Inc., an
Indiana corporation, Terre Haute Recycling, Inc., an Indiana
corporation, and CWI Mexican Ventures, S.A. de C.V., a Mexican
corporation (individually, CWI and any of said other corporations
may be referred to herein as a "Borrower," and collectively are
sometimes referred to as the "Borrowers").
WITNESSETH:
WHEREAS, the Borrowers and the Lenders have previously
entered into that certain Credit Agreement dated as of March 28,
1995, as amended by a First Amendment to Credit Agreement dated
June 6, 1995 (as so amended, the "Credit Agreement," with terms
used but not otherwise defined herein being used with the same
meanings as therein defined), whereunder Lenders have made
certain Loans to Borrowers;
WHEREAS, CWI proposes to acquire 85% of the outstanding
common stock of NationsWaste, Inc. for an aggregate purchase
price of approximately $5,000,000 (the "Acquisition");
WHEREAS, the Borrowers have requested certain modifications
to the Credit Agreement and the Lenders are willing to agree to
such modifications upon the terms and conditions set forth
herein:
NOW, THEREFORE, for and in consideration of the foregoing
premises and of the mutual agreements, promises and covenants
contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Loan Documents. The Credit Agreement and all of the
Loan Documents are hereby amended such that all references
therein to the Credit Agreement or any other Loan Documents are
hereby deemed to include this Amendment and the amendments to the
Credit Agreement and the Loan Documents contained herein.
2. Section 8.B.3. Mergers and Acquisitions. Subsection (4)
of Section 8.B.3 of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
"(4) The consideration for all such acquisitions may not
exceed a total of $10,000,000 with respect to acquisitions made
during any one Fiscal Year (it being understood that any "unused"
amount of the amount permitted with respect to any one Fiscal
Year shall not carry over to any subsequent Fiscal Year), or
$20,000,000 in the aggregate; provided however, that in the event
the Acquisition is consummated on or prior to December 31, 1995,
(i) said $10,000,000 limit shall be increased to $15,000,000 for
the Fiscal Year ended December 31, 1995, and (ii) said
$20,000,000 limit shall be increased to $25,000,000. In the
event the Acquisition is not consummated on or prior to December
31, 1995, said limits shall remain at $10,000,000 and $20,000,000
respectively. For purposes of this Section, 'consideration'
means the total purchase price (including cash expended, Debt
incurred, and liabilities incurred or assumed) paid or to be
paid, but in any event does not include any portion of the
purchase price paid or payable in the form of common stock or
Subordinated Debt of CWI or out of the proceeds of any public
offering of the common stock of CWI, and 'Acquisition' means the
acquisition by CWI of 85% of the outstanding common stock of
NationsWaste, Inc.;"
3. Section 8.B.3. Mergers and Acquisitions. The following
subsection (6) hereby is added to Section 8.B.3 of the Credit
Agreement:
"(6) The acquisition must have received the prior written
approval of the board of directors or other equivalent governing
body of the Person to be acquired."
4. Section 8.B.2. Capital Expenditures. Section 8.B.2(b)
of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
"(b) The Borrowers shall not make Capital Expenditures in
excess of Sixteen Million Dollars ($16,000,000) in the aggregate
during any one Fiscal Year, it being understood that the amount
of any Capital Expenditures permitted to be made during any one
Fiscal Year, but not so made, shall not carry over to any
subsequent Fiscal Year; provided however, that this Section
8.B.2(b) shall not prohibit the Borrowers from acquiring assets
in accordance with all of the terms and provisions of Section
8.B.3 of the Credit Agreement; and provided further that
notwithstanding the foregoing, Borrowers shall not make any
Capital Expenditures in excess of Two Million Five Hundred
Thousand Dollars ($2,500,000) in the aggregate during any one
Fiscal Year with respect to greenfield landfill projects
(unpermitted sites)."
5. Conditions.
5.A. Delivery of Documents as Conditions Precedent. The
delivery of each of the following documents, each of which shall
be satisfactory to the Agent in substance and form, by on or
behalf of the Borrowers to the Agent shall constitute separate
and distinct conditions precedent to the effectiveness of this
Amendment:
5.A.1. A copy of this Amendment duly executed by Borrowers.
5.A.2. In form and substance satisfactory to the Agent, any
other documents which the Agent may reasonably request from or to
be delivered by the Borrowers from time to time to effect the
intent of this Amendment and the Loan Documents.
5.B. Delivery of Acquisition Documents. Within 30 days
of the closing of the Acquisition, Borrowers shall deliver to
Lenders any and all information regarding the Acquisition as the
Lenders reasonably may request, including but not limited to a
business description, historical financial statements with
footnotes, interim financial statements, tipping fee and tonnage
information, financial projections and assumptions.
6. Representations; Warranties; Covenants. To induce
the Agent and the Lenders to execute this Amendment, the
Borrowers jointly and severally represent and warrant that, as of
the date hereof:
(i) the representations and warranties set forth in
the Credit Agreement, including, without
limitation, those set forth in Section 7
thereof, and in the Loan Documents to which any
Borrower is a party, are true and correct;
(ii) the covenants and agreements set forth in the
Credit Agreement, including, without limitation,
those set forth in Section 8 thereof as amended
hereby, and in the other Loan Documents to which
any Borrower is a party, are not currently being
breached and are inviolate;
(iii) no Default or Event of Default currently exists
under the Credit Agreement or any Loan Documents
and is continuing; and
(iv) the Borrowers have taken all corporate action
necessary to enter into and authorize the
execution and delivery of this Amendment and the
other Loan Documents to be executed and
delivered hereunder.
7. Reimbursement for Costs. As further inducement for the
Agent and the Lenders to execute this Agreement, the Borrowers
agree to reimburse the Agent for any costs of expenses any such
party may incur in connection with the negotiation and drafting
of this Amendment, including all attorneys' fees.
8. Governing Law; Successors and Assigns. This Amendment
has been executed, deliverd and accepted in and shall be deemed
to have been made under and shall be governed by and construed in
accordance with the internal laws of the State of Illinois
without regard to its conflict of law rules. This Amendment
shall be binding upon Borrowers and their respective successors
and assigns and shall inure to the benefit of Agent, the Lenders
and their respective successors and assigns; provided, however,
that Borrowers shall not have the right to assign their rights or
interests hereunder or under the Credit Agreement without the
prior written consent of Agent.
9. Release. Borrowers, for and on behalf of their
successors and assigns, hereby release, forever discharge and
agree to hold harmless Agent and each Lender, and their
respective succesors and assigns, from any and all claims,
actions or causes of action heretofore arising in any manner
under, purusant to or with respect to the Credit Agreement or the
Loan Documents or Agent's or any Lender's administration or
actions under, pursuant to or with respect to the Credit
Agreement or the Loan Documents and from any suit or proceeding
relating to the foregoing at any time against Agent or any
Lender.
10. Amendment; Ratification; No Waiver. The Credit
Agreement and the other Loan Documents to which any Borrower is a
party are hereby amended in all other respects to give effect to
the foregoing amendments and agreements and, as so amended, shall
remain in full force and effect and shall continue to constitute
the valid and binding obligations of the Borrowers enforceable in
accordance with their respective terms. This Amendment shall not
be deemed to consitute or shall not be construed as a waiver of
any rights, remedies, collateral or other security of or granted
to the Bank under the foregoing or of any Event of Default or
other default or breach which has occurred and is continuing
thereunder as of the date hereof.
11. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original
hereof and all of which together shall constitute one and the
same document.
IN WITNESS WHEREOF, the Borrowers, the Agent and the Lenders
have caused their respective officers, thereunto duly authorized,
to execute this Amendment as of the date first above written.
BORROWERS:
CONTINENTAL WASTE INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Senior Vice President
XXXXXX BROTHERS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Vice President
