Exhibit 10.06
LAND OPTION AGREEMENT
AMENDMENT XX. 0
Xxxxxxxxx Xx. 0 ("Xxxxxxxxx Xx. 0") dated as of November 15, 1995 to the Land
Option Agreement dated as of August 12, 1988 between Resco Holdings Inc.
(successor by merger to Wheelabrator Holdings Inc.), a Delaware corporation (the
"Grantee"), and Waste Management, Inc. (formerly known as Waste Management of
North America, Inc.), an Illinois corporation (the "Grantor"), as previously
amended by Amendment No. 1 thereto dated as of June 12, 1992 between Grantor and
Grantee (collectively, the "Land Option Agreement"). All capitalized terms used
herein and not otherwise defined shall have the meanings specified therefor in
the Land Option Agreement.
WHEREAS, pursuant to the Land Option Agreement, Grantor granted Grantee an
exclusive option to purchase, lease or sublease portions of Landfills to use as
sites for constructing, financing and operating Facilities; and
WHEREAS, due to changes in market conditions affecting waste-to-energy plants
which have occurred since 1988, the parties' intent in entering into the Land
Option Agreement has not been fully realized; and
WHEREAS, Grantor and Grantee have determined that it is in their respective
best interests to amend the Land Option Agreement as set forth below to afford
Grantee greater opportunities to make use of Landfills to use as sites for
Facilities; and
WHEREAS, WMX Technologies, Inc., a Delaware corporation and Grantor's parent,
wishes to join in this Amendment No. 2 for the limited purpose of guaranteeing,
to the extent provided for herein, Grantee's ability to realize a benefit from
the Option;
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth below, the parties hereto agree as follows:
1. Amendment of Recital B to Land Option Agreement. The last sentence of
Recital B to the Land Option Agreement is hereby amended and, as so amended, is
hereby restated to read as follows:
"As used in this Agreement, the terms "Current Landfills," "Future Landfills"
and "Landfills" shall include any real estate or interest therein owned, leased
or otherwise held by Chemical Waste Management, Inc., a Delaware corporation
("CWM") and a wholly-owned subsidiary of WMX Technologies, Inc., a Delaware
corporation ("WMX"), or any wholly-owned subsidiary of CWM."
2. Amendment of Section 1.3 (Term of Option). The first sentence of Section
1.3 of the Land Option Agreement is hereby amended and, as so amended, is hereby
restated to read as follows:
"1.3 Term of Option. The Option as to all the Landfills shall expire at 5:00
p.m., Central Standard Time, or Central Daylight Savings Time, as the case may
be ("CST"), on December 31, 1995, unless on or before such date and time Grantee
pays to Grantor an additional payment (the "Extension Payment") in the amount of
$15,000,000, in which event the Option shall expire at 5:00 p.m. CST on December
31, 2020 (said expiration time and date as the same may be extended are
collectively referred to herein as the "Expiration Date")."
3. Amendment of Section 1.4 (Purchase Price or Rental). Section 1.4 of the
Land Option Agreement is hereby amended as follows:
(a) Section 1.4(b) is hereby amended and, as so amended, is hereby restated in
its entirety to read as follows:
"The base price of an Option Parcel (the "Base Price") shall be the book value
per acre for such Option Parcel (including the book value of any improvements
situated on the Option Parcel) as reflected in the latest available financial
statements of WMX prior to the 30th day prior to the date of the Closing."
(b) Section 1.4 is hereby further amended by deleting subsection (C) thereof in
its entirety.
4. Addition of Section 2.8 (Schedule of Allocation). The Land Option
Agreement is hereby amended by adding the following Section 2.8:
"Section 2.8 Schedule of Allocation. Upon exercise of a Facility Option in
accordance with Section 2.7 hereof, Grantee hereby agrees to allocate at least
the portion of the Option specified on Exhibit A attached hereto to the acquired
or leased parcel."
5. Addition of Section 9.10 (Change in Control). The Land Option Agreement
is hereby amended by adding the following Section 9.10:
"Section 9.10 Change in Control. Notwithstanding any other provision of this
Agreement to the contrary, the Option shall immediately cease to be exercisable
by Grantee as to all the Landfills for the remainder of its term upon the
occurrence of a Change in Control. "Change in Control" shall mean the
occurrence of any of the following events:
(i) the Grantee or its parent is merged or consolidated or reorganized into or
with another corporation or other legal person other than, in the case of the
Grantee, its parent or an affiliate of its parent (an "Acquiror") and as a
result of such merger, consolidation or reorganization less than 75% of the
outstanding voting securities or other capital interests of the surviving,
resulting, or acquiring corporation or other legal person are owned in the
aggregate by the stockholders of the Grantee or its parent, as the case may be,
directly or indirectly, immediately prior to such merger, consolidation or
reorganization, other than the Acquiror or any corporation or other legal person
controlling, controlled by or under common control with the Acquiror;
(ii) the Grantee sells all or substantially all of its business and/or assets
to an Acquiror, of which less than 75% of the outstanding voting securities or
other capital interests are owned in the aggregate by the stockholders of the
Grantee or its parent, directly or indirectly, immediately prior to such sale,
other than any corporation or other legal person controlling, controlled by or
under common control with the Acquiror;
(iii) during any period of two consecutive years, individuals who at the
beginning of any such period constitute the directors of the Grantee or its
parent cease for any reason to constitute at least a majority thereof unless the
election, or the nomination for election by the Grantee's or its parent's
stockholders, as the case may be, of each new director of the Grantee or its
parent, as the case may be, was approved by a vote of at least two-thirds of
such directors of the Grantee or its parent, as the case may be, then still in
office who were directors of the Grantee or its parent, as the case may be, at
the beginning of any such period.
Notwithstanding the above, any transaction which would otherwise constitute a
Change in Control which is approved by a majority of the Board of Directors of
the Grantee's parent prior to such transaction will not constitute a Change in
Control under this Agreement."
6. Addition of Section 9.11 (WMX Guarantee). The Land Option Agreement is
hereby amended by adding Section 9.11 as follows:
"Section 9.11 WMX Guarantee. Notwithstanding any Change in Control, WMX
hereby guarantees the payment to Grantee of the book value (less related
deferred taxes), as reflected in an audited balance sheet of Grantee as of the
Expiration Date, of any portion of the Option which, as of the Expiration Date,
shall properly remain unallocated to parcels acquired or leased in accordance
with the terms of Section 2.8 hereof and Exhibit A attached hereto. Such
payment shall be made in cash by WMX to Grantee within 10 days following
Grantee's delivery to WMX of the balance sheet hereinabove referred to
accompanied by an auditor's report in form and substance reasonably satisfactory
to WMX."
7. Addition of Exhibit A (Schedule of Allocation). The following Schedule of
Allocation shall be added to the Land Option Agreement as Exhibit A thereto:
"Schedule of Allocation
Minimum Amount of Option Type of Facility For Which
To Be Allocated to Option Parcel Option Parcel Is Acquired Or Leased
-------------------------------- -----------------------------------
$30,000,000/1/ 1,500 tons per day solid waste energy
conversion facility/1/
$ 500,000 Any biosolids management or organic
waste composting or pelletizing facility
/1/ A proportionate amount of the Option shall be allocated at a minimum
to solid waste energy conversion facilities with greater or lesser
capacities than 1,500 tons per day.
The minimum portion of the Option which shall be allocated to Facilities
not specified above shall be agreed upon by the parties not later than the
Closing of the sale or lease of the Option Parcel involved."
8. Ratification of Agreement. Except as amended hereby, all of the terms
and conditions of the Land Option Agreement shall remain in effect, and the Land
Option Agreement, as amended by this Amendment No. 2, is hereby in all respects
ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be executed as of the date first above written.
RESCO HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxx
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Vice President
WASTE MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxxxx
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Vice President
WMX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx
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Vice President
