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EXHIBIT 10.35
AGREEMENT AND NINTH AMENDMENT TO CREDIT AGREEMENT
(January 10, 1997)
THIS AGREEMENT AND NINTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment") is made and entered into as of January 10, 1997, by and among
ALLWASTE, INC. (the "Company"), a Delaware corporation, EACH OF THE FINANCIAL
INSTITUTIONS SIGNATORY HERETO (individually, a "Bank" and collectively, the
"Banks"), TEXAS COMMERCE BANK NATIONAL ASSOCIATION ("TCB"), a national banking
association acting as agent for the Banks (in such capacity, together with its
successors in such capacity, the "Agent"), and NATIONSBANK OF TEXAS, N.A., a
national banking association, as co-agent under the Credit Agreement (as
defined hereinafter) (in such capacity, the "Co-Agent").
RECITALS:
A. The Company, the Agent and the Banks have entered into a
Credit Agreement dated as of November 30, 1993 (which such Credit Agreement, as
the same may have heretofore been amended, modified, supplemented and restated
from time to time, is hereinafter called the "Credit Agreement").
B. The Company, the Agent, the Co-Agent and the Banks now desire
to amend the Credit Agreement in certain respects as provided hereinbelow.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereto do hereby agree as follows:
1. Definition Added. Section 1.1 of the Credit Agreement is
hereby amended by adding thereto a new definition for "Safe Seal Guaranties",
which shall be and read as follows:
" Safe Seal Guaranties shall mean one or more guaranties
executed by the Company in favor of third-party creditors of The Safe
Seal Company, Inc., a _____________ corporation, guaranteeing
Indebtedness of The Safe Seal Company, Inc. in an aggregate amount up
to, but not exceeding, at any time (a) $10,000,000 plus (b) the
difference of (i) the maximum amount of Indebtedness of the Company
which is permitted under Section 6.1(o) hereof and which is not
otherwise permitted under any other provision of Section 6.1 hereof
(other than Section 6.1(q) hereof) minus (ii) the actual amount of
such Indebtedness determined as of such time."
2. Section 6.1 Amended. Section 6.1 of the Credit Agreement is
hereby amended in its entirety to be and read as follows:
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" 6.1 Indebtedness. Create, incur, suffer or permit to exist, or
assume or guarantee, directly or indirectly, or become or remain liable with
respect to any Indebtedness, whether direct, indirect, absolute, contingent or
otherwise, except the following:
" (a) Indebtedness to the Banks and the Agent pursuant hereto;
" (b) in addition to and cumulative of any other Indebtedness
permitted in this Section 6, in the case of the Company, only, Unsecured
Borrowed Debt (subject to the limitations set forth in Section 6.1 [l] below);
" (c) Indebtedness secured by Liens permitted by Section 6.2 hereof;
" (d) in addition to and cumulative of any other Indebtedness of the
Company's Subsidiaries permitted in this Section 6, Indebtedness of the
Company's Subsidiaries (including guaranties, endorsements, letters of credit
for the benefit of third parties and other contingent liabilities) not in
excess at any time of ten percent (10%) of the Net Worth of the Company and its
Subsidiaries on a consolidated basis as of such time;
" (e) current accounts payable and unsecured liabilities, not the
result of borrowings, to vendors, suppliers and persons providing services, for
expenditures on ordinary trade terms for goods and services normally required
by the Company or any of its Subsidiaries in the ordinary course of its
business;
" (f) agreements of intent to acquire a Person issued by the Company
or any of its Subsidiaries in anticipation of acquiring such Person if such
acquisition is permitted under the terms and conditions of this Amendment;
" (g) the Indebtedness of any Subsidiary of the Company to the
Company or any of the Company's other Subsidiaries or the Company to any of its
Subsidiaries, in each case, as permitted in Section 6.7(g) of this Amendment;
provided, that, upon the occurrence of a Default and so long as the same shall
be continuing, none of such Indebtedness owed by the Company or any other
Subsidiary which is also a Guarantor to a Non-Guaranteeing Subsidiary as of
such time may be repaid and no new extensions of credit shall be made by any
Guarantor to the Company or a Non-Guaranteeing Subsidiary as of such time,
unless such Indebtedness was incurred in the normal course of the borrowing
Person's business;
" (h) guarantees by the Company or any of its Subsidiaries of the
Indebtedness of any of their respective Subsidiaries permitted to be incurred,
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created or existing pursuant to this Section 6.1, provided, that such
guarantees are not directly secured by any Liens;
" (i) the Subordinated Indebtedness;
" (j) current and deferred taxes;
" (k) contingent liabilities under surety bonds;
" (l) Alternative Facilities Advances, provided, that the
Alternative Facilities Advances do not exceed at any time the Aggregate Unused
Commitment as of such time;
" (m) in addition to and cumulative of Indebtedness described
elsewhere in this Section 6.1, accrued liabilities related to insurance plans
of the Company or any of its Subsidiaries not the result of borrowings;
" (n) in addition to and cumulative of Indebtedness described
elsewhere in this Section 6.1, Rate Hedging Obligations arising under Rate
Hedging Agreements which have been approved in advance in writing by the
Majority Banks in their sole and absolute discretion, provided that the Rate
Hedging Agreements which give rise to such Rate Hedging Obligations are entered
into solely for the hedging of the Company's ongoing business operations;
" (o) in addition to and cumulative of Indebtedness described
elsewhere in this Section 6.1, other Indebtedness (including guaranties,
endorsements, the Resource Recovery Letter of Credit, other letters of credit
for the benefit of third parties and other contingent liabilities) of the
Company not to exceed at any time ten percent (10%) of the Net Worth of the
Company and its Subsidiaries determined on a consolidated basis as of such
time;
" (p) in addition to and cumulative of Indebtedness described
elsewhere in this Section 6.1, Indebtedness of the Company arising in
connection with the ARI Guaranty, and
" (q) in addition to and cumulative of Indebtedness described
elsewhere in this Section 6.1, Indebtedness of the Company arising in
connection with the Safe Seal Guaranties.
"The Company, the Agent, the Co-Agent, the Banks and each Guarantor (by its
execution of a Guaranty or a Joinder Agreement) agree that, notwithstanding
anything contained in this Section 6.1, in Section 6.7(g) or in any other
provision contained in this Amendment which may appear to be to the contrary,
any and
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all Indebtedness of (i) the Company or any of its Subsidiaries from
time to time owed to any other Subsidiary of the Company or of (ii)
any Subsidiary of the Company from time to time owed to the Company
(together with any and all Liens from time to time securing the same
as permitted by Section 6.7[g] hereof) is hereby made and at all times
hereafter shall be inferior and subordinate in all respects to the
Indebtedness from time to time owing to the Agent, the Co-Agent or any
Bank pursuant hereto and to any Lien from time to time hereafter
securing any of such Indebtedness pursuant to the terms hereof."
3. Release of Guaranty of AllScaff, Inc. The Agent and the Banks
hereby acknowledge and consent to the sale by the Company of the Stock of
AllScaff, Inc. ("AllScaff"), a Tennessee corporation, on January 10, 1997 for
the consideration of $675,000 to Southern Scaffold, Inc. and, further, the Agent
and the Banks do hereby agree that AllScaff is released from its liabilities
under the Guaranties effective as of the date of such sale.
4. Amendment Fee Provisions Amended. Section 2.16 of the Credit
Agreement is hereby amended by adding deleting the amount "$1,000" wherever it
appears therein and substituting therefor the amount "$3,000." Notwithstanding
Section 2.16 of the Credit Agreement, as amended by this Section, with respect
to this Amendment, only, in addition to the amendment fee to be paid by the
Company pursuant to Section 2.16 of the Credit Agreement (as amended hereby),
the Company shall pay to each Bank simultaneously with the execution and
delivery of this Amendment, a facility fee equal to 0.05% times such Bank's
Commitment as of the date hereof.
5. Delivery of Certificates of Existence, Good Standing, Etc.
With respect to each Guarantor, the Company hereby agrees to deliver to the
Agent, within thirty (30) days after the date hereof, certificates from the
appropriate public officials of each of the states where such Guarantor is
incorporated and conducts its business as to the continued existence, good
standing and authority to do business in those states.
6. Conditions. No part of this Amendment shall become effective
until the Company shall have delivered (or shall have caused to be delivered)
to the Agent each of the following, in Proper Form:
(a) a certificate from the Secretary of State or other appropriate
public official of the State of Delaware as to the continued
existence and good standing of the Company in the State of
Delaware;
(b) a certificate from the Secretary of State or other appropriate
public official of the State of Texas as to the qualification
of the Company to do business in the State of Texas;
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(c) a certificate from the Office of the Comptroller of the State
of Texas as to the good standing of the Company in the State
of Texas;
(d) a legal opinion from the general counsel for the Company and
the Current Guarantors acceptable to the Agent in its sole and
absolute discretion;
(e) certificates dated as of the date hereof of the Secretary or
any Assistant Secretary of the Company and each of the
Guarantors as of the date hereof, and such other documents and
information as the Banks may request;
(f) a Consent, in Proper Form, executed by of all of the
Guarantors to the execution and delivery of this Amendment and
such other related matters as the Banks may reasonably
require;
(g) a Notice of Entire Agreement and Release of Claims executed by
the Company and each of the Guarantors as of the date hereof,
and
(h) the amendment fee payable to each Bank as provided in Section
2.16 of the Credit Agreement.
7. Representations True; No Default. The Company represents and
warrants that the representations and warranties contained in Section 4 of the
Credit Agreement and in the other Loan Documents are true and correct in all
material respects on and as of the date hereof as though made on and as of such
date. The Company hereby certifies that no Default or Event of Default under
the Credit Agreement or any of the other Loan Documents has occurred and is
continuing as of the date hereof.
8. Ratification. Except as expressly amended hereby, the Credit
Agreement and the other Loan Documents shall remain in full force and effect.
In the event of any conflict between this Amendment and the Credit Agreement or
any of the other Loan Documents (or any earlier modification of any of them),
this Amendment shall control. The Credit Agreement, as hereby amended, and all
rights and powers created thereby or thereunder and under the other Loan
Documents are in all respects ratified and confirmed and remain in full force
and effect.
9. Definitions and References. Terms used herein which are
defined in the Credit Agreement or in the other Loan Documents shall have the
meanings therein ascribed to them. The term "Credit Agreement" as used in the
Credit Agreement, the other Loan Documents or any other instrument, document or
writing furnished to the Agent, the Co- Agent or any of the Banks by the
Company shall mean the Credit Agreement as hereby amended.
10. Miscellaneous. This Amendment (a) shall be binding upon and
inure to the benefit of the Company, the Banks, the Agent, the Co-Agent and
their respective successors, assigns, receivers and trustees (provided,
however, that the Company shall not assign its rights
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hereunder without the prior written consent of the Agent); (b) may be modified
or amended only by a writing signed by each party; (c) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED
STATES OF AMERICA; (d) may be executed in several counterparts, and by the
parties hereto on separate counterparts, and each counterpart, when so executed
and delivered, shall constitute an original agreement, and all such separate
counterparts shall constitute but one and the same agreement; and (e) together
with the other Loan Documents, embodies the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes
all prior agreements, consents and understandings relating to such subject
matter. The headings herein shall be accorded no significance in interpreting
this Amendment.
IN WITNESS WHEREOF, the Company, the Banks, the Agent and the Co-Agent
have caused this Amendment to be signed by their respective duly authorized
officers, effective as of the date which first appears hereinabove.
ALLWASTE, INC.,
a Delaware corporation
By: /s/ T. XXXXX XXXX
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T. Xxxxx Xxxx, Senior Vice President
ATTEST:
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Secretary
Attachments:
Schedule I - Non-guaranteeing Subsidiaries
and Dormant Subsidiaries
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TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national
banking association,
as a Bank and as Agent
By:
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Xxxxxxx X. Xxxxxx
Senior Vice President
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NATIONSBANK OF TEXAS, N.A.,
a national banking association,
as a Bank and as Co-Agent
By:
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Name:
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Title:
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XXXX XX XXXXXXX XXXXX, X.X.,
a national banking association
By:
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Xxxxxx X. Xxxxxx, Vice President
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XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION (successor in
interest by merger to First Interstate
Bank of Texas, N.A.), a national
banking association
By:
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Name:
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Title:
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XXX XXXX XX XXXX XXXXXX
By:
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Name:
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Title:
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COMERICA BANK - TEXAS,
a Texas banking association
By:
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Name:
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Title:
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LTCB TRUST COMPANY, a New York
Trust Company
By:
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Name:
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Title:
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ABN AMRO BANK N.V., HOUSTON
AGENCY
By:
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Name:
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Title:
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By:
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Name:
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Title:
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