EXHIBIT 10.54
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FIFTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AND CONSENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT AND CONSENT (this "Fifth Amendment") is made and entered into as of
the 22nd day of February, 2001, by and among XXXXXXX WASTE SYSTEMS, INC., a
Delaware corporation (the "Parent"), its Subsidiaries (other than Excluded
Subsidiaries) listed on Schedule 1 to the Credit Agreement defined below
(together with the Parent, collectively the "Borrowers"), FLEET NATIONAL BANK
(f/k/a BankBoston, N.A., "Fleet") and such banks or other financial institutions
which may become a party thereto (the "Banks"), Fleet as Administrative Agent
for the Banks (the "Administrative Agent"), KEYBANK NATIONAL ASSOCIATION as
Documentation Agent, BANK OF AMERICA, N.A. as Syndication Agent and CANADIAN
IMPERIAL BANK OF COMMERCE as the Canadian Agent (the "Canadian Agent", and
together with the Administrative Agent, the "Bank Agents").
WHEREAS, the Borrowers, the Banks and the Bank Agents are parties to an
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
December 14, 1999, (as amended by a First Amendment to Revolving Credit and Term
Loan Agreement dated as of February 2, 2000, a Second Amendment to Revolving
Credit and Term Loan Agreement dated as of February 14, 2000, a Third Amendment
to Revolving Credit and Term Loan Agreement dated as of April 14, 2000, a Fourth
Amendment to Revolving Credit and Term Loan Agreement dated as of August 4,
2000, and as the same may be further amended and in effect from time to time,
the "Credit Agreement"), pursuant to which the Banks have extended credit to the
Borrowers on the terms set forth therein;
WHEREAS, the Parent has informed the Banks that it plans to exchange its
stock in The AFA Group, Inc. and Advanced Enterprises Recycling Inc. for the
assets of Waste Disposal Services LLC plus a cash payment of approximately
$1,500,000 (such stock acquisition and disposition being hereinafter referred to
as the "AFA Swap");
WHEREAS, the Parent has informed the Banks that it plans to convert a
$16,300,000 note receivable, plus accrued interest, from Oakhurst into equity in
New Heights Recovery LLC, an Illinois limited liability corporation (such
transaction being hereinafter referred to as the "New Heights Equity
Investment");
WHEREAS, the ING L/C will be replaced by a Letter of Credit under this
Credit Agreement (the "MERC L/C");
WHEREAS, the Borrowers have informed the Banks that they intend to sell the
Resource Technology Group for approximately $24,000,000 and use the Net Cash
Proceeds thereof to pay down the Term Loan;
WHEREAS, the Borrowers have requested that the Banks and the Administrative
Agent make certain amendments to the Credit Agreement, and grant certain
consents, and the Banks and the Administrative Agent are willing to amend the
Credit Agreement and grant such certain consents on the terms set forth herein;
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NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
2. Amendments to Section 1.1 of the Credit Agreement. Section 1.1 of the
Credit Agreement is hereby amended by:
(a) deleting the definitions of "Adjusted Margin", "Adjustment
Period", "Consolidated Earnings Before Interest Taxes Depreciation and
Amortization or EBITDA", "Excluded Subsidiaries" and "Security Documents"
and respectively replacing such definitions in their entirety with the
following new definitions:
"Adjusted Margin. A margin of 0.125% per annum added to the
otherwise applicable rate during the Adjustment Period.
Adjustment Period. The period from February 22, 2001 through
August 22, 2001, provided that no Event of Default has occurred
and is continuing. If an Event of Default has occurred and is
continuing, the Adjustment Period shall continue until such Event
of Default has been cured to the satisfaction of the Required
Banks.
Consolidated Earnings Before Interest Taxes Depreciation and
Amortization or EBITDA. For any period, the Consolidated Net
Income (or Deficit) of the Borrowers determined in accordance
with GAAP, plus; to the extent that such charge was deducted in
determining Consolidated Net Income (or Deficit) in the relevant
period, (a) interest expense, (b) income taxes, (c) amortization
expense, and (d) depreciation expense for such period, (e) EBITDA
of the businesses acquired by any Borrower (through asset
purchases or otherwise) (each an "Acquired Business"), or with
respect to Subsidiaries (other than Excluded Subsidiaries)
acquired or formed during the period reported in the most recent
financial statements delivered to the Banks pursuant to ss.7.4
(each a "New Subsidiary") shall be included in the calculation of
EBITDA if (i) the Acquired Businesses or New Subsidiaries had
annual revenue of at least $5,000,000 for the most recent fiscal
year ended, (ii) the Administrative Agent receives a letter in
form and substance satisfactory to the Administrative Agent from
the Borrowers' Accountants as to adjustments for non-recurring
expenses, and (iii) (A) the financial statements of such Acquired
Businesses or New Subsidiaries have been audited for the most
recent fiscal year ended of such Acquired Businesses or New
Subsidiaries, a portion of which fiscal year is sought to be
included in the calculation of EBITDA, or (B) the Administrative
Agent consents to such inclusion after being furnished with other
acceptable financial statements, and, in each case, a Compliance
Certificate and other reasonably appropriate documentation, in
form and substance reasonably satisfactory to the Administrative
Agent, with respect to the historical operating results and
balance sheet of such Acquired Businesses or New Subsidiaries
(which information to the knowledge of the CFO is correct in all
material
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respects) are provided to the Administrative Agent, (f) the
non-cash non-recurring charges related to Oakhurst operations in
the amount of $1,680,000 to be taken through the fiscal quarter
ending January 31, 2001, and (g) solely for the purposes of
determining compliance with ss.9.3 hereof, pro-forma credit
related to the purchase of certain assets in July 2000, such
charges not to exceed $959,000 for the fiscal quarter ending
January 31, 2001, and $384,000 for the fiscal quarter ending
April 30, 2001.
Consolidated Net Income (or Deficit). The consolidated net
income (or deficit) of the Borrowers after deduction of all
expenses, taxes, and other proper charges determined in
accordance with GAAP, plus, without duplication, (a) non-cash
non-recurring charges related to restructuring charges or asset
impairment charges with respect to the Cellulose Joint Venture
not exceeding $7,750,000, and (b) if the Resource Technology
Group is sold by October 31, 2001, non-cash non-recurring charges
related to losses from asset impairment charges or such sale not
exceeding $13,000,000, less, to the extent included therein, (x)
any extraordinary gains, (y) any income from non-continuing
operations, and (z) income attributable to any minority equity or
other Investment in any non-Borrower except to the extent of
actual cash received with respect to the Cellulose Joint Venture
or the New Heights Equity Investment paid to the Borrowers in the
form of cash dividends or cash partnership distributions during
the applicable period.
Excluded Subsidiaries. The Insurance Subsidiary and the De
Minimis Subsidiaries and MERC until the Assignment Effective
Date.
Security Documents. The Domestic Security and Pledge
Agreement, the Canadian Pledge Agreement, the Canadian Security
Agreements, and, as of the Effective Assignment Date, the ING
Documents set forth on Schedule 4 hereto, each as amended and in
effect from time to time, and any additional documents evidencing
or perfecting the Administrative Agent's lien on the assets of
the applicable Borrowers for the benefit of the applicable Banks
(including Uniform Commercial Code financing statements and the
Canadian equivalent thereof)."
and (b) deleting the last paragraph of the definition of
"Applicable Rate" therein and restating it as follows:
"Each Applicable Rate shall become effective on the first
day after receipt by the Banks of financial statements delivered
pursuant to ss.7.4(a) or (b) hereof which indicate a change in
the Pricing Ratio and in the Applicable Rate in accordance with
the above table, provided that for the period from the Fifth
Amendment Effective Date through six (6) months after the Fifth
Amendment Effective Date, the Applicable Rate shall be Level IV,
provided further that during the Adjustment Period, the Adjusted
Margin shall be added to the Applicable Rate for Level IV in the
above table and to the Acceptance Fee for Bankers' Acceptances.
If at any time the financial statements required to be delivered
pursuant to ss.7.4(a) or (b) hereof are not delivered within
10 days after the time
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periods specified in such subsections, the Applicable Rate shall
be the rate set forth for Level IV plus the Adjusted Margin, if
applicable, subject to adjustment upon actual receipt of such
financial statements."
and (c) by inserting the following new definitions in proper
alphabetical order:
"Assignment Effective Date. The date on which the ING
Documents assigned to the Administrative Agent for the benefit of
the Banks.
ING Agreement. Pursuant to a certain Credit Agreement dated
as of April 30, 1996 (the "ING Agreement"), among MERC, the banks
named therein (such banks collectively referred to as the "ING
Lenders"), and ING (U.S.) Capital LLC, as the agent thereof (the
"ING Agent"), the ING Lenders made certain credit extensions to
MERC (including the ING L/C).
ING Documents. The Documents listed and identified as such
on Schedule 4 attached hereto.
MERC Transaction. The purchase of the remaining 16.25% of
the partnership interests of MERC by KTI Environmental Group,
Inc., for a purchase price of approximately $7.9 million
(including assumed debt to be entered into simultaneously with
the sale of KTI's interest in PERC)."
3. Amendments To Section 2.1(a) of the Credit Agreement. Section 2.1(a) of
the Credit Agreement is hereby amended by inserting, immediately before the
period (".") at the end of the first sentence thereof, the following text:
"provided further that until the ratio of Consolidated Funded Indebtedness
to EBITDA as at the end of any fiscal quarter is less than 3.50:1.00, the
outstanding amount of Domestic Revolving Credit Loans (including the Swing
Line Loans) and the Maximum Drawing Amount of the Domestic Letters of
Credit shall not exceed a maximum aggregate amount outstanding equal to
$280,000,000, however the Commitment Fee shall be payable on the full
amount of the Total Commitment during such period."
4. Amendments to Section 4A.4.1 of the Credit Agreement. Section 4A.4.1 of
the Credit Agreement is hereby amended by adding the following new subsection
(f) in proper alphabetical order therein:
"(f) The Domestic Borrowers shall use $10,000,000 of the Net Cash
Proceeds received from the sale of the Bangor Warrants permitted under
ss.8.4.2(c) and $23,000,000 of the Net Cash Proceeds received from the sale
of PERC and Timber permitted under ss.8.4.2(a) to pay down (i) outstanding
Domestic Revolving Credit Loans by $22,000,000, and (ii) the Term Loan by
$11,000,000."
5. Amendments to Section 4A.6.1 of the Credit Agreement. Section 4A.6.1 of
the Credit Agreement is hereby amended by deleting the subsections (a) and (b)
in their entirety and restating them as follows:
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"(a) To the extent that all or any portion of the Term Loan bears
interest during such Interest Period at the Base Rate, the Term Loan or
such portion thereof shall bear interest during such Interest Period at
the rate of 2.000% per annum plus the Adjusted Margin during the Adjustment
Period (the "Term Loan Base Rate Margin") above the Base Rate.
(b) At the option of the Domestic Borrowers, and upon notice give to
the Administrative Agent pursuant to ss.4A.6.2, so long as no Default or
Event of Default has occurred or is continuing, to the extent that all or
any portion of the Term Loan bears interest during such Interest Period at
the Eurodollar Rate, the Term Loan or such portion shall bear interest
during such Interest Period at the rate of 3.500% per annum plus the
Adjusted Margin during the Adjustment Period (the "Term Loan Eurodollar
Margin") above the Eurodollar Rate.
6. Amendments to Section 7.4 of the Credit Agreement. Section 7.4 of the
Credit Agreement is hereby amended by (a) deleting the word "and" at the end of
subsection (f) thereof, and (b) deleting subsection (g) thereof in its entirety
and replacing it with the following:
"(g) consolidated and consolidating balance sheets and statements of
operations, including, the divisional profit and loss results, on a monthly
basis until such time as the ratio of (i) Total Consolidated Funded
Indebtedness to (ii) EBITDA under ss.9.5 hereof is less than 3.50:1.00, and
thereafter on a quarterly basis; and
(h) from time to time such other financial data and other information
(including accountants' management letters) as the Banks may reasonably
request;"
7. Amendments to Section 7 of the Credit Agreement. Section 7 of the Credit
Agreement is hereby amended by adding the following new ss.7.19:
"ss.7.19. Quarterly Conference Calls. For the fiscal year 2002, the
Borrowers will arrange and participate in conference calls with the Banks
within 30 days following the close of each fiscal quarter."
8. Amendments to Section 8.4.1(j) of the Credit Agreement. Section 8.4.1(j)
of the Credit Agreement is hereby amended by deleting subsection (j) thereof in
its entirety and replacing it with the following:
"(j) (i) in the event that the ratio of (A) Total Consolidated Funded
Indebtedness to (B) EBITDA under ss.9.5 hereof is greater than or equal to
3.50:1.00, cash consideration to be paid by such Borrower in connection
with any such acquisition or series of related acquisitions (including cash
deferred payments, contingent or otherwise, and the aggregate amount of all
liabilities assumed), shall not exceed $1,000,000 without the consent of
the Administrative Agent and the Required Banks and (ii) in the event that
the ratio of (A) Total Consolidated Funded Indebtedness to (B) EBITDA under
ss.9.5 hereof is less than 3.50:1.00, cash consideration to be paid by such
Borrower in connection with any
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such acquisition or series of related acquisitions (including cash deferred
payments, contingent or otherwise, and the aggregate amount of all,
liabilities assumed), shall not exceed $15,000,000 without the consent of
the Administrative Agent and the Required Banks; provided, further, in each
case, that, taking into account such acquisition and any borrowing made in
connection therewith, there shall remain at least $20,000,000 of
availability under the Total Commitment."
9. Amendment to Section 8.4.2 of the Credit Agreement is amended by adding
the following sentence immediately prior to the third sentence thereof which
begins "Notwithstanding the foregoing......":" the Borrowers shall be permitted
to sell the Resource Technology Group, provided that gross cash proceeds of
approximately $24,000,000 shall be received and shall be used to pay down the
Term Loan."
10. Amendments to Section 8.6 of the Credit Agreement. Section 8.6 of the
Credit Agreement is hereby amended by deleting ss.8.6 in its entirety and
replacing it with the following new ss.8.6:
"ss.8.6. Restricted Distributions and Redemptions.
None of the Borrowers will declare or pay any cash Distributions; provided
that any Subsidiary may declare or pay cash Distributions to the Parent. In
addition, the Borrowers shall not redeem, convert, retire or otherwise
acquire shares of any class of capital stock of the Borrowers or Excluded
Subsidiaries without the written consent of the Administrative Agent and
the Required Banks. So long as no Default or Event of Default has occurred
and is continuing, or would occur after giving effect thereto, at any time
after August 9, 2003, the Parent may make quarterly cash Distributions on
its Series A Preferred Stock in an amount up to five percent (5%) of the
face value of the Series A Preferred Stock per year, but in no event to
exceed $3,226,879 in any fiscal year."
11. Amendments to Section 8.8 of the Credit Agreement. Section 8.8 of the
Credit Agreement is hereby amended by deleting ss.8.8 in its entirety and
substituting in place thereof the following new ss.8.8:
"ss.8.8. Capital Expenditures. Commencing with the fiscal quarter
ending April 30, 2001, as at the end of any fiscal quarter, the Borrowers
will not permit the amount of Capital Expenditures (excluding any
acquisitions permitted by ss.8.4 hereof) made by the Borrowers in the
period of four (4) consecutive fiscal quarters then ended to exceed (a)
through January 31, 2002, an amount equal to 2.0 times the sum of
depreciation and landfill amortization expense for such period (calculated
in accordance with GAAP), and (b) thereafter, the lesser of an amount equal
to (i) 0.5 times EBITDA for such period, and (ii) the sum of depreciation
and landfill amortization expense for such period (calculated in accordance
with GAAP)."
12. Amendments to Section 9.1 of the Credit Agreement. Section 9.1 of the
Credit Agreement is hereby amended by deleting ss.9.1 in its entirety and
substituting in place thereof the following new ss.9.1:
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"ss.9.1. Interest Coverage Ratios. As of the end of any fiscal
quarter, the ratio of EBITDA to Consolidated Total Interest Expense shall
not be less than the stated ratio for the respective periods set forth
below:
Period Ratio
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Effective Date through 10/30/01 2.50:1
10/31/01 through 1/30/02 2.75:1
1/31/02 through 4/29/02 3.00:1
Thereafter 3.50:1
provided, that any adjustments made pursuant to clause (e) of the
definition of EBITDA shall not be included in the calculation of this
ss.9.1 and EBITDA shall be calculated for the period of four (4) fiscal
quarters ending on the date of calculation."
13. Amendments to Section 9.3 of the Credit Agreement. Section 9.3 of the
Credit Agreement is hereby amended by deleting ss.9.3 in its entirety and
substituting in place thereof the following new ss.9.3:
"ss.9.3. Borrowers' Funded Debt to EBITDA Ratio. The Borrowers will
not permit the ratio of (a) Consolidated Funded Indebtedness to (b) EBITDA
as at the end of any fiscal quarter to exceed the stated ratio for the
respective periods set forth below:
Period Ratio
------ -----
Effective Date through 6/30/00 4.00:1
7/31/00 through 7/31/01 3.75:1
Thereafter 3.50:1
provided that, in the event that the Resource Technology Group are sold
prior to October 31, 2001 for Net Cash Proceeds of at least $24,000,000,
the maximum permitted ratio as at the end of the fiscal quarter when such
sale occurred and thereafter shall be 3.50:1. For the purposes of this
ss.9.3, EBITDA shall be calculated for the period of four (4) consecutive
fiscal quarters ending on the date of calculation."
14. Amendments to Schedules and Exhibits of the Credit Agreement. The
Schedules to the Credit Agreement are hereby amended by (a) deleting the current
Schedule 1 attached thereto and replacing it with the new Schedule 1 attached
hereto; and (b) adding in proper numerical order the new Schedule 4 attached
hereto. The Borrowers hereby represent and warrant that such new Schedules are
complete and accurate. Concurrently herewith, the Borrowers have delivered new
Perfection Certificates for all new Subsidiaries. Exhibit D is hereby amended by
deleting the current Exhibit D attached to the Credit Agreement and replacing it
with the new Exhibit D attached hereto.
15. Deletion of Sections from the Credit Agreement. As of the Fifth
Amendment Effective Date or if later, as of the Assignment Effective Date, the
text of following sections shall be deleted in their entirety from the Credit
Agreement, and the words "Intentionally Deleted" shall be inserted in their
place:
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ss.8.1(f)(i) and (j)
ss.8.d(h)(i)
ss.8.3(i)
ss.9.5.
16. Consent to AFA Asset Swap. Each of the Banks hereby consents to the AFA
Swap, provided that (a) the cash consideration received by the Borrowers in
connection with the AFA Swap shall not be less than $1,500,000 and such
consideration shall be used to pay down the Term Loan, and (b) the Borrowers
shall comply with the terms of Section 8.4.1 with respect to the acquisition of
the Waste Disposal Services LLC assets.
17. Consent to New Heights Equity Investment. Each of the Banks hereby
consents to the New Heights Equity Investment, provided that the stock of New
Heights owned by KTI Inc. shall be pledged to the Administrative Agent for the
benefit of the Banks.
18. The MERC Transaction. In connection with the issuance of the MERC L/C
and the payment of all outstanding amounts under the ING Agreement, the ING
Lenders will assign all of their rights, interests and obligations under the ING
Documents to the Administrative Agent for the benefit of the Banks pursuant to
the Assignment and Acceptance dated the Assignment Effective Date between the
ING Lenders, ING and the Administrative Agent (on behalf of itself and the
Banks). As of the Assignment Effective Date, the ING Agreement shall be subsumed
under this Credit Agreement and shall be amended and restated and replaced in
its entirety by the terms of this Credit Agreement, and the ING Documents shall
be "Security Documents" under this Credit Agreement, and MERC will no longer be
an Excluded Subsidiary and will become a Borrower hereunder, and will execute
and deliver a Joinder and Affirmation to the Credit Agreement, allonges to the
Notes, and deliver such other documents as requested by the Administrative
Agent. Any cash held by ING shall be applied to pay down the outstanding
Domestic Revolving Credit Loans.
If the MERC Transaction and the Assignment Effective Date occurs after the
Fifth Amendment Date, the Banks hereby consent to the MERC Transaction, on the
terms set forth in this ss.18, notwithstanding the restrictions in ss.8.4(j), as
amended hereby.
19. Representations and Warranties. Each of the Borrowers represents and
warrants as follows:
(a) The execution, delivery and performance of each of this Fifth
Amendment and the Credit Agreement, as amended as of the date hereof and
the transactions contemplated hereby and thereby are within the corporate
power and authority of such Borrower and have been or will be authorized by
proper corporate proceedings, and do not (a) require any consent or
approval of the stockholders of such Borrower, (b) contravene any provision
of the charter documents or by-laws of such Borrower or any law, rule or
regulation applicable to such Borrower, or (c) contravene any provision of,
or constitute an event of default or event which, but for the requirement
that time elapse or notice be given, or both, would constitute an event of
default under, any other material agreement, instrument or undertaking
binding on such Borrower.
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(b) This Fifth Amendment and the Credit Agreement as amended as of the
date hereof and all of the terms and provisions hereof and thereof are the
legal, valid and binding obligations of such Borrower enforceable in
accordance with their respective terms except as limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, and except as the remedy of
specific performance or of injunctive relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
(c) The execution, delivery and performance of this Fifth Amendment
and the Credit Agreement as amended as of the date hereof and the
transactions contemplated hereby and thereby do not require any approval or
consent of, or filing or registration with, any governmental or other
agency or authority, or any other party.
(d) The representations and warranties contained in ss.6 of the Credit
Agreement are true and correct in all material respects as of the date
hereof as though made on and as of the date hereof.
(e) After giving effect to this Fifth Amendment, no Default or Event
of Default under the Credit Agreement has occurred and is continuing.
20. Ratification, Etc. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Fifth Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Fifth Amendment.
21. GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
22. DELIVERY BY FACSIMILE. This Amendment, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute original
forms thereof and deliver them to all other parties. No party hereto or to any
such agreement-or instrument shall raise the use of a facsimile machine to
deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine as a
defense to the formation of a contract and each party forever waives such
defense.
23. Counterparts. This Fifth Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
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23. Effectiveness. This Fifth Amendment shall become effective (the "Fifth
Amendment Effective Date") upon the receipt by the Agent of:
(a) a counterpart of this Fifth Amendment, executed by the Required
Banks and the Borrowers;
(b) an amendment fee in an aggregate amount equal to 20.0 basis points
on the Commitment or outstanding principal portion of the Term Loan, as
applicable, of each Bank which consents to this Fifth Amendment on or prior
to 5:00 p.m. (Boston time) on February 20, 2001;
(c) with respect to those provisions relating to new Borrowers
including MERC, upon the signing and delivery a Joinder and Affirmation
Agreement to the Administrative Agent, allonges to the Notes, and all
documentation reasonably requested by the Administrative Agent in
connection therewith; and
(d) payment of all fees and expenses of the Administrative Agent's
legal counsel in the connection with the preparation of this Fifth
Amendment and ancillary documentation and filings.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this Fifth
Amendment as of the date first set forth above.
FLEET NATIONAL BANK
(f/k/a BankBoston N.A.)
individually and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
COMERICABANK
By: /s/ Xxx Ursay
---------------------------------
Name: Xxx Ursay
Title: Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ELT LTD.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
STRATEGIC MANAGED LOAN PORTFOLIO
By: /s/ X. X. Xxxxx
Name: Xxxx Xxxxx
Title: Alternative Investment Strategies
KZH SHOSHONE LLC
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Authorized Agent
PILGRIM AMERICA HIGH INCOME
INVESTMENTS, LTD.
By: /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
PILGRIM CLO 1999-1 LTD.
By: Pilgrim Investments, Inc., as its
investment manager
By: /s/ Xxxxxxx X. XxXxxxx, CFA
Name: Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
BANKERS TRUST COMPANY
By:
Name:
Title:
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS II, LTD.
By:
Name:
Title:
KZH-ING-1 LLC
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Authorized Agent
KZH-ING-2 LLC
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Authorized Agent
KZH-ING-3 LLC
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Authorized Agent
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
NORTH AMERICAN SENIOR
FLOATING RATE FUND
By:
Name:
Title:
XXXXXX FLOATING RATE FUND
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
CYPRESSTREE INVESTMENT
PARTNERS I, L TD
By:
Name:
Title:
XXXXXXXXXXX SENIOR FLOATING
RATE FUND
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: A.V.P.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Sankaty Advisors, Inc. as Collateral
Manager for Great Point CLO 1999-LTD.,
as Term Lender
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Managing Director, Portfolio
Manager
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Managing Director, Portfolio
Manager
LASALLE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Vice President
FIRST VERMONT BANK AND TRUST
COMPANY
By:
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as
Canadian Agent
By: /s/ M. Xxxx Xxxxxx
Name: M. Xxxx Xxxxxx
Title: Authorized Signatory
SANKATY HIGH YIELD PARTNERS II, L.P.
By:
Name:
Title:
GREAT POINT CLO 1999-1 LTD.
By:
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
FIRST ALLAMERICA FINANCIAL LIFE
INSURANCE CO.
By:
Name:
Title:
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
KZH CYPRESSTREE 1 LLC
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Authorized Agent
NORSE CBO, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
HARBOURVIEW CDO II, LIMITED
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: MANAGER
INDOSUEZ CAPITAL FUNDING llA, LIMITED
By: Indosuez Capital Luxembourg, as
Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
MAGNETITE ASSET INVESTORS, LLC
By: ILLEGIBLE
Name:
Title: Director
ARES LEVERAGED INVESTMENT FUND II, L.P.
By:
Name:
Title:
ARES III CLO LTD.
By: ARES CLO Management LLC
By:
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
COLUMBUS LOAN FUNDING LTD.
By: Travelers Asset Management
International Company LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
MUIRFIELD TRADING LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD.
By:
Name:
Title:
XXX XXXXXX CLO I, LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXX XXXXXX CLO II, LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
BLACK ROCK
By: ILLEGIBLE
Name:
Title: Director
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager and Authorized
Signatory
By:
Name:
Title:
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
TRAVELERS CORPORATE LOAN FUND INC.
By: Travelers Asset Management
International Company LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
NORTH AMERICAN SENIOR FLOATING
RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS I, LTD
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS II, LTD
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life Insurance
Company as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management,
Inc.
As Investment Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
AERIES FINANCE-ll LTD.
By: INVESCO Senior Secured Management,
Inc.
As Sub-Managing Agent
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc.
As Sub-Managing Agent (Financial)
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management,
Inc.
As Attorney in fact
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
CIBC INC.
By: /s/ M. Xxxx Xxxxxx
---------------------------------
Name: M. Xxxx Xxxxxx
Title: AUTHORIZED SIGNATORY
ARCHIMEDES FUNDING III, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: MANAGING DIRECTOR
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: MANAGING DIRECTOR
NEMEAN CLO, LTD.
BY: ING Capital Advisors LLC,
as Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: MANAGING DIRECTOR
DOMESTIC BORROWERS
------------------
ALL CYCLE WASTE, INC.
BRISTOL WASTE MANAGEMENT, INC.
CASELLA T.I.R.E.S., INC.
CASELLA TRANSPORTATION, INC.
XXXXXXX WASTE MANAGEMENT, INC.
XXXXXXX WASTE MANAGEMENT OF N.Y., INC.
XXXXXXX WASTE MANAGEMENT OF PENNSYLVANIA, INC.
XXXXXXX WASTE SYSTEMS, INC.
GRASSLANDS INC.
XXXXX C & D DISPOSAL, INC.
XXXXX HOLLOW REGENERATION CORP.
NATURAL ENVIRONMENTAL, INC.
NEWBURY WASTE MANAGEMENT, INC.
NEW ENGLAND WASTE SERVICES, INC.
NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC.
NEW ENGLAND WASTE SERVICES OF N.Y., INC.
NEW ENGLAND WASTE SERVICES OF VERMONT, INC.
NORTH COUNTRY ENVIRONMENTAL SERVICES, INC.
NORTHERN SANITATION, INC.
PINE TREE WASTE, INC.
RESOURCE RECOVERY OF CAPE COD, INC.
RESOURCE TRANSFER SERVICES, INC.
RESOURCE WASTE SYSTEMS, INC.
XXXXXX ENVIRONMENTAL RECOVERY FACILITIES, INC.
XXXXXX ENVIRONMENTAL SERVICES
XXXXXXX LANDFILL, INC.
SUNDERLAND WASTE MANAGEMENT, INC.
WASTE-STREAM INC.
WESTFIELD DISPOSAL SERVICE, INC.
XXXXXXX BROTHERS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
ADVANCED ENTERPRISES RECYCLING INC.
THE AFA GROUP, INC.
AFA PALLET, INC.
AGRO PRODUCTS, INC.
ALLIED EQUIPT. & SALES CORP., INC.
AMERICAN SUPPLIES SALES GROUP, INC.
ARTIC INC.
ATLANTIC TRANSPORTATION TECHNOLOGIES INC.
DATA DESTRUCTION SERVICES, INC.
FAIRFIELD COUNTY RECYCLING, INC.
FCR CAMDEN, INC.
FCR FLORIDA, INC.
FCR GEORGIA, INC.
FCR GREENSBORO, INC.
FCR GREENVILLE, INC.
FCR XXXXXX, INC.
FCR PLASTICS, INC.
FCR REDEMPTION, INC.
FCR TENNESSEE, INC.
FCR VIRGINIA, INC.
FCR, INC.
KTI BIO FUELS, INC.
KTI ENERGY OF MARTINSVILLE, INC.
KTI ENERGY OF VIRGINIA, INC.
KTI ENVIRONMENTAL GROUP, INC.
KTI NEW JERSEY FIBERS, INC.
KTI OPERATIONS, INC.
KTI RECYCLING OF ILLINOIS, INC.
KTI RECYCLING OF NEW ENGLAND, INC.
KTI RECYCLING OF NEW JERSEY, INC.
KTI RECYCLING, INC.
KTI SPECIALTY WASTE SERVICES, INC.
KTI TRANSPORTATION SERVICES, INC.
KTI, INC.
MECKLENBURG COUNTY RECYCLING, INC.
POWER SHIP TRANSPORT, INC.
TOTAL WASTE MANAGEMENT CORP.
U .S. FIBER, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
PENOBSCOT ENERGY RECOVERY COMPANY,
LIMITED PARTNERSHIP
By: PERC Management Company Limited
Partnership, general partner
By: PERC, Inc., general partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
PERC MANAGEMENT COMPANY, LIMITED
PARTNERSHIP
By: PERC, Inc., general partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
CANADIAN BORROWERS
------------------
KTI RECYCLING OF CANADA, INC.
1316991 ONTARIO, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
CASELLA W ASTE SYSTEMS, INC.
AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT
DECEMBER 14,1999
SCHEDULE 1
SUBSIDIARIES OF THE PARENT
I. BORROWERS:
STATE OF FOREIGN QUAL.
INCORPORATION ORDERED
1. ALL CYCLE WASTE, INC. VT
2. ALTERNATE ENERGY, INC. MA NH
3. BRISTOL WASTE MANAGEMENT, INC. VT
4. CASELLA TRANSPORTATION, INC. VT
5. XXXXXXX WASTE MANAGEMENT
OF MASSACHUSETTS, INC. MA
6. XXXXXXX WASTE MANAGEMENT
OF N.Y., INC. NY
7. XXXXXXX WASTE MANAGEMENT
OF PENNSYLVANIA, INC. PA
8. XXXXXXX WASTE MANAGEMENT, INC. VT NY, MA, NH
9. XXXXXXX WASTE SYSTEMS, INC. DE VT
10. GRASSLANDS INC. NY
11. XXXXX C & D DISPOSAL, INC. NY
12. XXXXX HOLLOW REGENERATION
CORP. NY
13. NATURAL ENVIRONMENTAL, INC. NY
1
14. NEWBURY WASTE MANAGEMENT, INC. VT
15. NEW ENGLAND WASTE SERVICES, INC. VT NH, NY
16. NEW ENGLAND WASTE
SERVICES OF VERMONT, INC. VT
17. NEW ENGLAND WASTE SERVICES
OF MASSACHUSETTS, INC. MA
18. NEW ENGLAND WASTE SERVICES
OF N.Y., INC. NY
19. NORTH COUNTRY
ENVIRONMENTAL SERVICES, INC. VA XX
00. NORTHERN SANITATION, INC. NY
21. PINE TREE WASTE, INC. ME NS
22. RESOURCE RECOVERY OF
CAPE COD, INC. MA
23. RESOURCE TRANSFER SERVICES, INC. MA
24. RESOURCE WASTE SYSTEMS, INC. MA
25. ROCHESTER ENVIRONMENTAL
PARK LLC MA
26. XXXXXX ENVIRONMENTAL
RECOVERY FACILITIES, INC. ME
27. XXXXXX ENVIRONMENTAL
SERVICES ME
28. XXXXXXX LANDFILL, INC. NY
29. SUNDERLAND WASTE
MANAGEMENT, INC. VT
30. WASTE-STREAM INC. NY
2
31. WESTFIELD DISPOSAL SERVICE, INC. NY
32. XXXXXXX BROTHERS, INC. VT
II. KTI BORROWERS
33. ADVANCED ENTERPRISES
RECYCLING INC. NJ
34. AFA PALLET CO., INC. NJ
35. THE AFA GROUP, INC. NJ
36. AGRO PRODUCTS, INC. NJ
37. ALLIED EQUIPT. & SALES
CORP., INC. NJ
38. AMERICAN SUPPLIES SALE GROUP, INC.
39. ARTiC, INC. NJ
40. ATLANTIC COAST FIBERS, INC.
(f/k/a KTI RECYCLING, INC.) DE NJ
41. ATLANTIC TRANSPORTATION NJ
TECHNOLOGIES INC.
42. DATA DESTRUCTION SERVICES, INC. ME MA, NH
43. FAIRFIELD COUNTY
RECYCLING, INC. DE CT
44. FCR, INC. DE NC
45. FCR CAMDEN, INC. DE NJ
46. FCR FLORIDA, INC. DE FL
47. FCR GEORGIA, INC. DE GA
48. FCR GREENSBORO, INC. DE NC
3
49. FCR GREENVILLE, INC. DE SC
50. FCR XXXXXX, INC. DE NJ
51. FCR REDEMPTION, INC. DE CT
52. FCR TENNESSEE, INC. DE TN
53. FCR VIRGINIA, INC. DE VA
54. K-C INTERNATIONAL, LTD. OR NJ, CA, MA, PA
55. KTI, INC. NJ ME
56. KTI BIO FUELS, INC. ME
57. KTI ENVIRONMENTAL GROUP, INC. NJ ME
58. KTI ENERGY OF MARTINSVILLE, INC. VA
59. KTI ENERGY OF VIRGINIA, INC. VA
60. KTI NEW JERSEY FIBERS, INC. DE NJ, CT, NY, OR
61. KTI OPERATIONS, INC. DE FL, GA, IL, ME,
MA, NH, NJ, TX,
VA, OR
62. KTI RECYCLING OF ILLINOIS, INC. DE IL
63. KTI RECYCLING OF NEW ENGLAND, INC. DE MA
64. KTI RECYCLING OF NEW JERSEY, INC. DE NJ
65. KTI SPECIALTY WASTE SERVICES, INC. ME FL
66. KTI TRANSPORTATION SERVICES, INC. ME NJ
67. MECKLENBURG COUNTY
RECYCLING, INC. CT NC
4
68. U.S. FIBER, INC. NC FL, AZ, CA, OH,
OR, PA, TX
II. EXCLUDED SUBSIDIARIES:
69. AMERICAN ASH RECYCLING OF TENNESSEE, LTD.
70. CASELLA INSURANCE COMPANY
71. FOREST ACQUISITIONS, INC.
72. MAINE ENERGY RECOVERY
COMPANY, LIMITED PARTNERSHIP
73. NORTH COUNTRY COMPOSTING SERVICES, INC.
74. NORTHERN PROPERTIES CORPORATION OF PLATTSBURGH [TO BE MERGED INTO
NORTHERN SANITATION INC.]
75. PORTLAND C & D SITE, INC.
76. TIMBER ENERGY RESOURCES, INC.
III. TIRE BUSINESS SUBSIDIARIES:
77. 1316991 ONTARIO INC. ON
78. ATLANTIC RECYCLED RUBBER INC. NS
79. CASELLA T.I.R.E.S., INC. ME RI
80. NEW HEIGHTS RECOVERY & POWER, LLC DE
81. OAKHURST COMPANY, INC. DE
82. PRAIRIE RUBBER CORPORATION SK
00. XXXX XXXXXXXXXX XX XXXXXXXXXX, XXXXXXXX
SGPL, S.A.
84. RECOVERY TECHNOLOGIES ON
(CANADA), INC. (FORMERLY KTI
RECYCLING OF CANADA, INC.)
5
85. RECOVERY TECHNOLOGIES OPERATIONS, LLC IL IN, NJ
86. RECOVERY TECHNOLOGIES GROUP, INC. DE GA, IL, NJ
87. RECOVERY TECHNOLOGIES DE GA, LA, SC, TN,
COLLECTION SERVICES, LLC TX
6
SCHEDULE 4
MERC L/C Documents
------------------
1. ING Credit Agreement
2. First Mortgage, Leasehold Mortgage and Security Agreement dated as
of April 30, 1996 from the Borrower as mortgagor and the Agent as
mortgagee (as amended, supplemented or otherwise modified from time
to time)
3. Second Mortgage, Leasehold Mortgage and Security Agreement dated as
of April 30, 1996 from the Borrower as mortgagor and the Agent as
mortgagee (as amended, supplemented or otherwise modified from time
to time)
4. Pledge and Security Agreement dated as of April 30, 1996 among Xxxx
Technologies, Inc. ("KTI"), the Borrower and the Agent (as amended,
supplemented or otherwise modified from time to time)
5. Pledge and Security Agreement dated as of April 30, 1996 among KTI
Limited Partners, Inc. ("KTI Limited Partners"), the Borrower and
the Agent (as amended, supplemented or otherwise modified from time
to time)
6. Security Agreement dated as of April 30, 1996 between the Borrower
and the Agent (as amended, supplemented or otherwise modified from
time to time)
7. Lockbox Agreement dated as of May 3, 1996 among the Agent, the
Borrower and Key Bank of Maine (as amended, supplemented or
otherwise modified from time to time)
8. Subordination Agreement dated as of May 3,1996 by and among KTI, KTI
Limited Partners, Energy National, Inc. ("ENI"), CNA Realty, Corp.
("CNA Realty"), the Agent and the Borrower (as amended, supplemented
or otherwise modified from time to time)
9. Subordination Agreement dated as of August 1,2000 by and among KTI,
Inc., the Agent and the Borrower (as amended, supplemented or
otherwise modified from time to time)
10. Note Subordination Agreement dated as of May 3,1996 by and among CNA
Realty, CLE Inc., the Agent and the Borrower as amended by Note
Subordination Agreement dated as of December 30, 1998 by and among
KTI, the Agent and the Borrower (as amended, supplemented or
otherwise modified from time to time)
-2-
11. Note Subordination Agreement dated as of May 3, 1996 by and among
ENI, the Agent and the Borrower ( as amended, supplemented or
otherwise modified from time to time)
12. Note Subordination Agreement dated as of May 3, 1996 by and among
Project Capital 1985, the Agent and the Borrower (as amended,
supplemented or otherwise modified from time to time)
13. Negative Pledge Agreement dated as of May 3,1996 by and among ENI,
the Agent and the Borrower (as amended, supplemented or otherwise
modified from time to time)
14. Consent and Agreement (PPA) dated as of April 30, 1996 by and
between Central Maine Power Company ("CMPC"), the Agent and the
Borrower (as amended, supplemented or otherwise modified from time
to time)
15. Lessor's Estoppel and Consent dated as of April 30, 1996 by CMPC in
favor of the Agent (as amended, supplemented or otherwise modified
from time to time)
16. Consent and Agreement (Water Agreements) dated as of April 30, 1996
by CMPC in favor of the Agent and acknowledged by the Borrower (as
amended, supplemented or otherwise modified from time to time)
17. Consent and Agreement dated as of April 30, 1996 by CL Power Sales
One, LLC ("CL One"), in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
18. Operator Consent and Agreement dated as of April 30, 1996 by KTI
Operations, Inc., in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
19. Municipality Consent and Agreement dated as of July 10, 1996 by the
City of Saco in favor of the Agent and acknowledged by the Borrower
(as amended, supplemented or otherwise modified from time to time)
20. Municipality Consent and Agreement read and passed on June 18,1996
by the City of Biddeford in favor of the Agent and acknowledged by
the Borrower (as amended, supplemented or otherwise modified from
time to time)
21. Municipality Consent and Agreement dated as of August 6, 1996 by the
Town of Acton in favor of the Agent and acknowledged by the Borrower
(as amended, supplemented or otherwise modified from time to time)
22. Municipality Consent and Agreement dated as of August 27, 1996 by
the Town of Xxxxxx in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
-3-
23. Municipality Consent and Agreement dated as of July 1, 1996 by the
Town of Old Orchard Beach in favor of the Agent and acknowledged by
the Borrower (as amended, supplemented or otherwise modified from
time to time)
24. Municipality Consent and Agreement dated as of June 17, 1996 by the
Town of North Berwick in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
25. Municipality Consent and Agreement dated as of June 19, 1996 by the
Town of Xxxxxx in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
26. Municipality Consent and Agreement dated as of June 26, 1996 by the
Town of Kennebunk in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
27. Municipality Consent and Agreement dated as of November 19, 1996 by
the Town of Xxxxxxx in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
28. Municipality Consent and Agreement dated as of September 3, 1996 by
the Town of Shapleigh in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
29. Municipality Consent and Agreement dated as of June 24, 1996 by the
Town of Dayton in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
30. Municipality Consent and Agreement dated as of July 10, 1996 by the
Town of Xxxxx in favor of the Agent and acknowledged by the Borrower
(as amended, supplemented or otherwise modified from time to time)
31. Municipality Consent and Agreement dated as of June 10, 1996 by the
Town of Denmark in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
32. Municipality Consent and Agreement dated as of July 31, 1996 by the
Town of Cornish in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
33. Municipality Consent and Agreement dated as of June 27, 1996 by the
Town of Kennebunkport in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
34. Municipality Consent and Agreement dated as of June 17, 1996 by the
Town of South Berwick in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
-4-
35. Municipality Consent and Agreement dated as of June 17, 1996 by the
Town of Xxxxxxxxxx in favor of the Agent and acknowledged by the
Borrower (as amended, supplemented or otherwise modified from time
to time)
36. Front-End Process Residue Consent and Agreement dated as of April
30, 1996 by Xxxxxx Xxxxxxxxx, Inc., in favor of the Agent and
acknowledged by the Borrower (as amended, supplemented or otherwise
modified from time to time)
37. Material Disposal and Transportation Consent and Agreement dated as
of April 30, 1996 by Waste Management Disposal Services of Maine,
Inc. (formerly known as Consolidated Waste Services, Inc.), Waste
Management of New Hampshire, Inc., Waste Management of Maine, Inc.,
in favor of the Agent and acknowledged by the Borrower (as amended,
supplemented or otherwise modified from time to time)
38. Indemnity Agreement dated as of April 30, 1996 among Xxxxxx Brothers
Holdings, Inc., the Borrower and the Issuer as amended by Indemnity
Agreement dated as of May 8, 1997 among The Energy Group PLC, the
Borrower and Issuer and as amended by Indemnity Agreement dated as
of August 8, 2000 among TXU Europe Limited, the Borrower and the
Issuer (as amended, supplemented or otherwise modified from time to
time)
39. Escrow Agreement dated as of April 30, 1996 among Key Trust Company
of Ohio, N.A. (the "Escrow Agent"), CMPC, the Borrower, CL One and
the Agent (as amended, supplemented or otherwise modified from time
to time)
40. Inter-Creditor Agreement dated as of Apri130, 1996 (the
"Inter-Creditor Agreement") by and among CL One, CMPC, the Borrower,
the Escrow Agent, Xxxx Xxxxxxx Mutual Life Insurance Company, Xxxx
Xxxxxxx Variable Life Insurance Company, Xxxx Xxxxxxx Life Insurance
Company of America, Mellon Bank, N.A., Allstate Life Insurance
Company, and Connecticut General Life Insurance Company ( as
amended, supplemented or otherwise modified from time to time)
41. Financing Statement filed with the Secretary of State of Maine (UCC
No. 1171447) with respect to the Borrower in relation to document
nos. 2 and 3 above
42. Financing Statement filed with the Secretary of State of New Jersey
(UCC-l No. 1696612) with respect to KTI in connection with document
no. 4 above
43. Financing Statement filed with the Secretary of State of Maine
(UCC-l No. 1171057) with respect to KTI in connection with document
no. 4 above
44. Financing Statement filed with the Secretary of State of Delaware
(UCC-l No. 9612047) with respect to KTI Limited Partners in
connection with document no. 5 above
-5-
45. Financing Statement filed with the Secretary of State of Maine
(UCC-1 No. 1171056) with respect to KTI Limited Partners in
connection with document no. 5 above
46. Financing Statement filed with the Secretary of State of Maine
(UCC-1 No. 1171059) with respect to the Borrower in connection with
document nos. 6 and 7 above
47. Financing Statement filed with the Secretary of State, New Jersey
(UCC-1 No. 1696616) with respect to the Borrower in connection with
document nos. 6 and 7 above
48. Non-Disturbance and Attornment Agreement (the "Non-Disturbance and
Attornment Agreement") dated as of April 30, 1996 by and between the
Agent, CL One and CMPC ( as amended, supplemented or otherwise
modified from time to time)
