THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
January 31, 1996, 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, CWI Mexican Ventures, S.A. de C.V., a
Mexican corporation, NationsWaste, Inc., a Delaware corporation and Northeast
Sanitary Landfill, Inc., a South Carolina 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, and a Second Amendment to Credit Agreement
dated October 5, 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, 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 1.A. Definition of Termination Date. The definition of
"Termination Date" at Section 1.A. of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
"Termination Date" means January 31, 1999.
3. Section 1.A. Definitions of Applicable Margins. Effective as of January
1, 1996, the definitions of "Applicable L/C Margin," "Applicable LIBOR Margin,"
and "Applicable Margin" at Section 1.A. of the Credit Agreement are hereby
deleted in their entirety and replaced with the following:
"Applicable L/C Margin," for purposes of determining the Letter of Credit
fees due from the Borrowers under Section 4.D hereof, means initially 0.75% (the
"Normal L/C Margin"), provided however that the Normal L/C Margin shall be
subject to quarterly adjustment based on the following:
Leverage Ratio Applicable L/C Margin
Less than 2.0 to 1 0.75%
2.01 to 1 through 2.50 to 1 1.0%
2.51 to 1 through 3.0 to 1 1.5%
Greater than 3.0 to 1 2.0%
"Applicable LIBOR Margin," for purposes of determining the
interest rate on a LIBOR Loan, means initially 1.5% (the "Normal
LIBOR Margin"), provided however that the Normal LIBOR Margin
shall be subject to quarterly adjustment based on the following:
Leverage Ratio Applicable LIBOR Margin
Less than 2.0 to 1 1.5%
2.01 to 1 through 2.50 to 1 1.75%
2.51 to 1 through 3.0 to 1 2.0%
Greater than 3.0 to 1 2.5%
"Applicable Margin," for purposes of determining the interest rate on a
Prime Rate Loan, means initially 0.0% (the "Normal Margin"), provided however
that the Normal Margin shall be subject to quarterly adjustment based on the
following:
Leverage Ratio Applicable Margin
Less than 2.0 to 1 0%
2.01 to 1 through 2.50 to 1 0.5%
2.51 to 1 through 3.0 to 1 1.0%
Greater than 3.0 to 1 1.0%
4. Section 2.B(a) Letters of Credit. Section 2.B(a) of the Credit Agreement
is hereby deleted in its entirety and replaced by the following:
"(a) General Terms. Subject to all of the terms and conditions hereof,
the Commitment may be availed of in the form of Letters of Credit, provided
that the aggregate outstanding amount of Letter of Credit Utilization by
the Borrowers hereunder shall in no event exceed the lesser of (aa) the
unused amount of the Commitments or (bb) $10,000,000. The Letters of Credit
shall be issued by the Agent, but each Lender shall be obligated
toreimburse the Agent for a pro rata share of the amount of each draft
drawn thereunder and, accordingly, each Letter of Credit shall be deemed to
utilize the Commitments of all Lenders pro rata in accordance with the
respective amounts thereof. For all purposes of this Agreement, each
Existing Letter of Credit shall be deemed to be a Letter of Credit issued
hereunder."
5. Section 8.A.1 Financial Covenants.
(a) Sections 8.A.1(a) and 8.A.1(b) of the Credit Agreement are
hereby deleted in their entirety.
(b) Section 8.A.1.(c) of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
"(c) The Borrowers' Consolidated ratio of (a) EBITDA to (b)
Interest Expense, as determined as of the end of each quarter of CWI's
Fiscal Year for the period of the four fiscal quarters then ending,
shall at all times exceed 4.0 to 1.0."
(c) Section 8.A.1(e) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
"(e) The Borrowers' Consolidated ratio of (a) interest- bearing
Debt to (b) EBITDA (referred to herein as the "Leverage Ratio"), as
determined as of the end of each quarter of CWI's Fiscal Year for the
period of the four fiscal quarters then ending, shall not be greater
than the following ratios at any time during the following periods:
Ratio Period Ending
3.00 to 1.0 December 31, 1995 to, and including,
December 31, 1996;
2.75 to 1.0 March 31, 1997 to, and including,
December 31, 1997;
2.50 to 1.0 March 31, 1998, and at all times
thereafter."
6. Section 8.B.2. Debt and Capital Expenditures. Section 8.B.2 of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"(a) The Borrowers shall not, directly or indirectly, create, assume,
incur, suffer to exist, guarantee, become or be liable for or with respect
to any manner of obligations, liabilities, indebtedness or other Debt
whatsoever to any Person, except with respect to: (i) the Obligations
hereunder; (ii) Subordinated Debt up to $6,000,000 on terms acceptable to
Lenders in their sole discretion; (iii) existing Debt indicated on Schedule
8.B.2 hereto (to the extent such existing Debt is repaid, additional Debt
may not be incurred); (iv) current liabilities and accounts payable arising
or accruing in the ordinary course of business (other than a guaranty or
indebtedness for borrowed money, an extension of credit or deferred
purchase price of property not otherwise permitted hereunder); (v)
contingent Debt for any draws at any time made on outstanding instruments
as Financial Assurance; (vi) contingent Debt with respect to any Interest
Rate Contracts with the Agent or Lenders; (vii) Debt assumed or incurred in
or in connection with any merger or acquisition permitted under Section
8.B.3; (viii) purchase money Debt incurred in connection with Capital
Expenditures permitted under the following paragraph; (ix) Debt up to
$10,000,000 outstanding at any one time incurred in connection with the
financing of certain existing and future leasing obligations (provided
however, that notwithstanding the foregoing, all obligations for capital
leases shall remain subject to subsection (b) below); and (x) other Debt up
to $5,000,000 outstanding at any one time, including reimbursement
obligations incurred by any Borrower in connection with the issuance of
Industrial Revenue Bonds.
(b) The Borrowers shall not make Capital Expenditures in excess of
2.75 times Borrowers' depreciation and amortization charges for the period
of the four fiscal quarters then ending; provided however that this Section
8.B.2(b) shall not apply to assets acquired by the Borrowers 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)."
7. Section 8.B.3. Mergers and Acquisitions. Section 8.B.3 of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
"8.B.3. Fiscal Year, Name Changes, Mergers and Acquisitions. No
Borrower shall (i) change its Fiscal Year or its corporate name or without
prior written notice to Agent and only after all necessary or desirable
Financing Statements have been duly and properly filed and recorded
maintaining Agent's first priority perfected liens and security interests
on and in the Collateral, adopt an assumed corporate name, (ii) consolidate
or merge with any Person, (iii) acquire any stock in, or acquire all or
substantially all of the assets or properties of, any Person, or (iv)
create any Subsidiaries; provided, however, that notwithstanding the
foregoing, and subject to the conditions set forth below, the following are
permitted: (a) any Borrower may merge with any other Borrower, so long as
CWI is the surviving corporation in any merger involving it and any other
Borrower, and provided also that in any merger involving any Borrower the
stock of which has been pledged to the Agent, the Agent shall have or
obtain a first priority security interest in the stock of the surviving
Borrower in such merger; (b) a Borrower may merge with any Person other
than another Borrower, so long as the Borrower is the surviving corporation
in any such merger and no Default or Event of Default would result
therefrom immediately after giving effect thereto; (c) any Borrower may
acquire stock in a New Subsidiary, or acquire all or substantially all of
the assets or properties of, any Person, or create a New Subsidiary,
provided that no Default or Event of Default would result therefrom
immediately after giving effect thereto and that the provisions of Section
8.A.13, if applicable, are complied with; provided, further, that any
transaction described in (b) and (c) above that involves an acquisition
must also meet each of the following requirements or conditions:
(1) The Borrowers' Historical Pro Forma Interest Coverage Ratio,
considering the acquisition involved and as demonstrated to the
reasonable satisfaction of the Agent, is at least 3.00 to 1.00;
(2) The acquisition must be of a Person engaged primarily in the
nonhazardous solid waste industry;
(3) If the acquisition involves a Landfill or disposal and
treatment facility, it shall be subject to the Borrowers' standard due
diligence review, the results of which are acceptable to the Agent and
the Lenders in their sole discretion;
(4) Any acquisition for which the total consideration exceeds
$7,500,000 must receive the written approval of all of the Lenders (to
be granted or not granted by the Lenders in their sole and complete
discretion). 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 (permitted under Section
8.B.2(a)) of CWI or out of the proceeds of any public offering of the
common stock of CWI;
(5) If the acquisition involves consideration in excess of
$3,000,000 and involves assets or a business primarily located outside
of the United States of America, the prior written approval of all of
the Lenders (to be granted or not granted by the Lenders in their sole
and complete discretion) thereto must be obtained.
(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.
8. Conditions.
8.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:
8.A.1. A copy of this Amendment duly executed by Borrowers.
8.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.
8.B. Amendment Fee. The Borrowers shall pay to the Agent for the
ratable account of the Lenders an amendment fee equal to one-tenth of one
percent of the Commitment ($45,000).
9. 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.
10. Reimbursement for Costs. As further inducement for the Agent and the
Lenders to execute this Amendment, the Borrowers agree to reimburse the Agent
for any costs or expenses any such party may incur in connection with the
negotiation and drafting of this Amendment, including all attorneys' fees.
11. Governing Law; Successors and Assigns. This Amendment has been
executed, delivered 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.
12. 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 successors and assigns, from any and all claims,
actions or causes of action heretofore arising in any manner under, pursuant 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.
13. 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 constitute 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.
14. 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:______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX BROTHERS, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX BROTHERS WASTE, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BERRIEN COUNTY LANDFILL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BLUEGRASS RECYCLING & TRANSFER
COMPANY
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COMMERCIAL WASTE DISPOSAL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX WASTE, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CWI OF ILLINOIS, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CWI OF MISSOURI, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CWI VENTURE, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FLL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
G.E.M. ENVIRONMENTAL MANAGEMENT, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GILA BEND REGIONAL LANDFILL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GREENFIELD ENVIRONMENTAL DEVELOPMENT CORP.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
JAMAX CORPORATION
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KARAT CORP.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MIDWEST MATERIAL MANAGEMENT, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
NORTHWEST TENNESSEE DISPOSAL CORPORATION
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXX LANDFILL CORPORATION
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX HOLLOW LANDFILL CORP.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SANIFILL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SOUTHERN ILLINOIS REGIONAL LANDFILL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SOUTH TRANS, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SPRINGFIELD ENVIRONMENTAL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SPRINGFIELD ENVIRONMENTAL, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TRIPLE G LANDFILLS, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
UNITED REFUSE CO., INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
VICTORY ENVIRONMENTAL SERVICES, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
VICTORY WASTE INCORPORATED
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WPP CONTINENTAL DE COSTA RICA S.A.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WPP SERVICES, INC.
By:
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ASCO SANITATION, INC.
By:______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX TRANSFER, INC.
By:_______________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXXXXX REFUSE CO INC
By:________________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
TERRE HAUTE RECYCLING, INC.
By:_________________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
CWI MEXICAN VENTURES, S.A. de C.V.
By:_________________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
NATIONSWASTE, INC.
By:_________________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
NORTHEAST SANITARY LANDFILL, INC.
By:_________________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
AGENT:
LASALLE NATIONAL BANK, as Agent
By:
Name: Xxxx Xxxxxx
Title: Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
LENDERS:
LASALLE NATIONAL BANK
000 Xxxxx XxXxxxx Xxxxxx By:
Xxxxxxx, Xxxxxxxx 00000 Name: Xxxx Xxxxxx
Title: Senior Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Amount of Commitment: $15,000,000
THE FIRST XXXXXXXX XXXX XX XXXXXX
000 Xxxxxxx Xxxxxx By:
Xxxxxx, XX 00000 Name:
Title:
Telephone: 000-000-0000
Telecopy: 000-000-0000
Amount of Commitment: $15,000,000
BANK OF AMERICA ILLINOIS
000 Xxxxx XxXxxxx Xxxxxx By:
Xxxxxxx, Xxxxxxxx 00000 Name:
Title:
Telephone: 000-000-0000
Telecopy: 000-000-0000
Amount of Commitment: $15,000,000
