EXHIBIT 10.8
EXECUTION COPY
FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT, dated as of May 22, 2002 (this "AMENDMENT"), by and among (a)
IESI CORPORATION, a Delaware corporation ("IESI"), IESI TX CORPORATION, a Texas
corporation ("IESI TX"), IESI NY CORPORATION, a Delaware corporation ("IESI
NY"), IESI NJ CORPORATION, a Delaware corporation ("IESI NJ"), IESI NJ RECYCLING
CORPORATION, a Delaware corporation ("IESI RECYCLING"), IESI AR CORPORATION, an
Arkansas corporation ("IESI AR"), IESI AR LANDFILL CORPORATION, an Arkansas
corporation ("IESI AR LANDFILL"), IESI MO CORPORATION, a Missouri corporation
("IESI MO"), IESI OK CORPORATION, an Oklahoma corporation ("IESI OK"), IESI PA
CORPORATION, a Delaware corporation ("IESI PA"), IESI PA BETHLEHEM LANDFILL
CORPORATION, a Delaware corporation ("IESI BETHLEHEM"), IESI PA BLUE RIDGE
LANDFILL CORPORATION, a Pennsylvania corporation ("IESI BLUE RIDGE"), IESI DE
CORPORATION, a Delaware corporation (IESI DE"), IESI DE LP CORPORATION, a
Delaware corporation ("IESI DE LP"), IESI TX GP CORPORATION, a Delaware
corporation ("IESI TX GP"), IESI TX LANDFILL LP, a Texas limited partnership
("IESI TX LANDFILL"), IESI LA CORPORATION, a Delaware corporation ("IESI LA")
and IESI LA LANDFILL CORPORATION, a Delaware corporation ("IESI LA LANDFILL"
and, collectively with IESI, IESI TX, IESI NY, IESI NJ, IESI Recycling, IESI AR,
IESI AR Landfill, IESI MO, IESI OK, IESI PA, IESI Bethlehem, IESI Blue Ridge,
IESI DE, IESI DE LP, IESI TX GP, IESI TX Landfill and IESI LA, the "BORROWERS"
and, each individually, a "BORROWER"), (b) FLEET NATIONAL BANK ("FLEET"), a
national banking association having a place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, as administrative agent for itself and other
lending institutions (in such capacity, the "ADMINISTRATIVE AGENT") which are,
or may in the future become, parties to that certain Fourth Amended and Restated
Revolving Credit and Term Loan Agreement, dated as of September 14, 2001 (as
amended and in effect from time to time, the "CREDIT AGREEMENT"), among the
Borrowers, Fleet and certain other financial institutions from time to time
parties thereto (collectively with Fleet, the "LENDERS"), LaSalle Bank National
Association, as documentation agent (the "DOCUMENTATION AGENT"), and Credit
Suisse First Boston and Citicorp North America, Inc., as syndication agents
(collectively, the "SYNDICATION AGENTS", (c) the Documentation Agent and (d) the
Syndication Agents.
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Documentation Agent and the Syndication Agents have agreed to amend the Credit
Agreement as set forth herein.
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 agree to amend the Credit Agreement as follows:
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1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
2. AMENDMENTS TO SECTION 1.1. (a) Section 1.1 of the Credit Agreement
is hereby amended by inserting the following new definitions in the proper
alphabetical order:
"CONSOLIDATED SENIOR FUNDED DEBT. As at any date of determination, an
amount equal to Consolidated Total Funded Debt MINUS Subordinated Debt."
"MARGIN MODIFICATION DATE. The date on which the Borrowers shall have
repaid the outstanding amount of the Term Loan in full, together with any
and all accrued and unpaid interest thereon."
"SENIOR LEVERAGE RATIO. As at any date of determination, the ratio of
(a) Consolidated Senior Funded Debt outstanding on such date to (b) EBITDA
for the Reference Period ending on such date."
"SUBORDINATED NOTE INDENTURE. The Indenture, to be entered into by the
Parent, the 'Subsidiary Guarantors' defined therein and The Bank of New
York, as trustee thereunder, with respect to the Subordinated Notes, in the
form provided to the Administrative Agent and containing substantially the
same terms and conditions as set forth in the Description of Notes in the
final offering circular, to be dated June 7, 2002, 2002, previously
delivered to the Administrative Agent, and as the same may be supplemented,
amended or modified from time to time in accordance with the terms hereof
(including without limitation Section 9.8 hereof)."
"SUBORDINATED NOTES. Any and all Notes Due 2012 issued by the Parent
under and pursuant to the Subordinated Note Indenture, which Subordinated
Notes contain substantially the same terms and conditions as set forth in
the Description of Notes in the final offering circular, to be dated June
7, 2002, previously delivered to the Administrative Agent."
(b) The definition of "APPLICABLE MARGIN" is hereby deleted in its
entirety and replaced by the following definition:
"APPLICABLE MARGIN. (a) From the Closing Date through and including
the Margin Modification Date, for the period commencing on an Adjustment
Date through the date immediately preceding the next Adjustment Date (each
a "RATE ADJUSTMENT PERIOD"), the Applicable Margin shall be the applicable
margin set forth below with respect to the Pricing Ratio, as determined for
the Reference Period of the Borrowers ending on the fiscal quarter ended
immediately prior to the applicable Rate Adjustment Period:
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REVOLVING CREDIT LOANS TERM LOAN
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APPLICABLE
LEVEL PRICING BASE RATE EURODOLLAR BASE RATE EURODOLLAR COMMITMENT
RATIO LOANS RATE LOANS LOANS RATE LOANS FEE RATE
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I LESS THAN 2.50:1 0.25% 2.25% 1.25% 3.25% 0.375%
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II GREATER THAN OR EQUAL TO 2.50:1 0.50% 2.50% 1.25% 3.25% 0.500%
and
LESS THAN 3.00:1
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III GREATER THAN OR EQUAL TO 3.00:1 0.75% 2.75% 1.25% 3.25% 0.500%
and
LESS THAN 3.50:1
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IV GREATER THAN OR EQUAL TO 3.50:1 1.00% 3.00% 1.25% 3.25% 0.500%
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and (b) following the Margin Modification Date, for each Rate Adjustment
Period the Applicable Margin shall be the applicable margin set forth below
with respect to the Pricing Ratio, as determined for the Reference Period
of the Borrowers ending on the fiscal quarter ended immediately prior to
the applicable Rate Adjustment Period:
EURODOLLAR RATE APPLICABLE
LEVEL PRICING RATIO BASE RATE LOANS LOANS COMMITMENT FEE RATE
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I LESS THAN 2.50:1 0.25% 2.25% 0.375%
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II GREATER THAN OR EQUAL TO 2.50:1 0.50% 2.50% 0.500%
and
LESS THAN 3.00:1
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III GREATER THAN OR EQUAL TO 3.00:1 0.75% 2.75% 0.500%
and
LESS THAN 3.50:1
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IV GREATER THAN OR EQUAL TO 3.50:1 1.00% 3.00% 0.500%
and
LESS THAN 4.00:1
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V GREATER THAN OR EQUAL TO 4.00:1 1.25% 3.25% 0.500%
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Notwithstanding the foregoing, (i) for the Loans outstanding and the
Letter of Credit Fees and the Commitment Fee payable during the period
commencing on the Closing Date through the date which is six (6) months
following the Closing Date, the Applicable Margin shall be the Applicable
Margin set forth in Level II in the tables above, and (ii) if the Borrowers
fail to deliver any Compliance Certificate pursuant to Section 8.4(d)
hereof then, for the period commencing on the next Adjustment Date to occur
subsequent to such failure through the date immediately following the date
on which such Compliance Certificate is delivered, the Applicable Margin
shall be the highest Applicable Margin set forth in the applicable table
above."
(b) The definition of "CHANGE OF CONTROL" is hereby amended by adding the
following text at the end of such definition:
"or, the occurrence of any 'CHANGE OF CONTROL' under and as defined in the
Subordinated Note Indenture."
(c) The definition of "SUBORDINATED DEBT" is hereby amended by deleting
such definition in its entirety and substituting the following definition in
lieu thereof:
"SUBORDINATED DEBT. (a) Unsecured Indebtedness of the Borrowers with
respect to promissory notes issued by any Borrower to a seller in
connection with an acquisition permitted by Section 9.5.1 hereof that is
expressly subordinated and made junior to the
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payment and performance in full of the Obligations, and evidenced as such
by a written instrument provided to the Administrative Agent containing
subordination provisions in substantially the form of EXHIBIT I or other
terms reasonably acceptable to the Administrative Agent and the Required
Lenders, (b) unsecured Indebtedness of the Parent (and subordinated
unsecured guarantees thereof by its Subsidiaries) issued or to be issued
pursuant to a debt offering or offerings, either pursuant to a public
offering of debt securities or a private placement of debt securities on
terms no less favorable to the Lenders than terms of "market" public senior
subordinated unsecured debt and on terms and conditions acceptable to the
Administrative Agent and the Required Lenders, and (c) unsecured
Indebtedness of the Parent incurred pursuant to, and in accordance with,
the Subordinated Note Indenture and the Subordinated Notes, and the
unsecured guarantees thereof by the Subsidiaries of the Parent, PROVIDED
that, with respect to this clause (c), upon receipt of the Net Cash
Proceeds from the issuance of the Subordinated Notes, the Parent shall pay
to the Administrative Agent, for the respect accounts of the Lenders, an
amount equal to such Net Cash Proceeds to be applied to the outstanding
Loans in accordance with Sections 2.11.3 and 3.6.3."
3. AMENDMENT TO SECTION 3. Section 3.6.2 of the Credit Agreement is
hereby amended by deleting the last sentence of such Section 3.6.2 in its
entirety.
4. AMENDMENT TO SECTION 6. Section 6 of the Credit Agreement is hereby
amended by inserting the following new text immediately following the last
sentence of Section 6 thereof:
"The Borrowers hereby agree that upon the request of the
Administrative Agent and the Required Lenders, they shall, as promptly as
practicable, but in any event within 30 days, deliver titles to motor
vehicles and mortgages on real estate and take such other steps as may be
reasonably requested (including, without limitation, the delivery of legal
opinions and title insurance) so as to provide the Lenders with a first
priority security interest in such assets."
5. AMENDMENTS TO SECTION 9. (a) Section 9.1 of the Credit Agreement is
hereby amended by (i) deleting the phrase "the following" and inserting the
clause "(i) Indebtedness permitted within this Section 9.1" in lieu thereof and
(ii) adding the following new text immediately following the word "thereto":
"and (ii) Subordinated Debt permitted under Section 9.8"
(b) Section 9.1(c) of the Credit Agreement is hereby amended by deleting
such Section 9.1(c) in its entirety and substituting the following new
Section 9.1(c) in lieu thereof:
"(c) Intentionally Deleted"
(c) Section 9.2.2 of the Credit Agreement is hereby amended by (i)
deleting the word "and" following clause (i) of such Section 9.2.2 and (ii)
adding the following new text immediately following clause (ii) of such
Section 9.2.2:
",and (iii) restrictions contained in the Subordinated Note
Indenture."
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(d) Section 9.8 of the Credit Agreement is hereby amended by deleting such
Section 9.8 in its entirety and substituting the following new Section 9.8 in
lieu thereof:
"9.8. SUBORDINATED DEBT. The Borrowers will not:
(a) create, incur, assume, guarantee or be or remain liable,
contingently or otherwise for Subordinated Debt in excess of $250,000,000
PROVIDED that prior to the incurrence of Subordinated Debt, the Borrowers
shall deliver a pro forma compliance certificate to the Administrative
Agent certifying as of the date of the incurrence of such Subordinated
Debt, after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing; or
(b) amend, supplement or otherwise modify the terms of the
Subordinated Debt or prepay, redeem or repurchase any of the Subordinated
Debt or elect or take any action to discharge or defease any of the
Subordinated Notes under the Subordinated Note Indenture; PROVIDED that
this Section 9.8 shall not restrict the right of the Parent to (i) amend
the Subordinated Note Indenture or the Subordinated Notes to extend the
maturity thereof or amend any terms therein so as to make such terms less
restrictive on the Parent and its Subsidiaries or (ii) make other
immaterial amendments to the Subordinated Note Indenture or the
Subordinated Notes which are not adverse to the Administrative Agent or any
of the Lenders; and PROVIDED, FURTHER, that this Section 9.8 shall not
restrict the ability of the Parent to exchange the originally issued
Subordinated Notes for registered notes (the "EXCHANGE NOTES") in
accordance with the terms of the Subordinated Note Indenture so long as the
terms of the Exchange Notes are no more restrictive on the Parent and its
Subsidiaries than the Subordinated Notes being exchanged."
6. AMENDMENTS TO SECTION 10. (a) Section 10 of the Credit Agreement is
hereby amended by deleting Section 10.1 in its entirety and substituting the
following new Section 10.1 in lieu thereof:
"10.1. LEVERAGE RATIO. As at the end of any fiscal quarter, the
Leverage Ratio for the Reference Period the ended shall not exceed
4.50:1.00."
(b) Section 10 of the Credit Agreement is hereby further amended by
deleting Section 10.2 in its entirety and substituting the following new
Section 10.2 in lieu thereof:
10.2. INTEREST COVERAGE. As at the end of any fiscal quarter
referenced in the table below, the ratio of (a) EBITDA for the Reference
Period then ended to (b) Consolidated Total Interest Expense for such
Reference Period shall not be less than the ratio set forth opposite such
fiscal quarter in such table:
FISCAL QUARTERS ENDING RATIO
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9/30/01 through 3/31/02 2.50:1.00
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6/30/02 through 9/30/02 3.50:1.00
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12/31/02 3.10:1.00
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3/31/03 2.75:1.00
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6/30/03 through 9/30/03 2.40:1.00
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12/31/03 2.50:1.00
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3/31/03 and thereafter 2.75:1.00
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(c) Section 10 of the Credit Agreement is hereby further amended by adding
the following new Section 10.5 in appropriate numerical order:
"10.5. SENIOR LEVERAGE RATIO. As at the end of any fiscal quarter, the
Senior Leverage Ratio for the Reference Period then ended shall not exceed
3.00:1.00."
7. AMENDMENT TO SECTION 13.1. Section 13.1 of the Credit Agreement is
hereby amended by (a) deleting the word "or" following clause (l) of such
Section 13.1, (b) adding the word "or" immediately following the semicolon
following clause (m) of such Section 13.1, and (c) adding the following new
clause (n) to such Section 13.1:
"(n) any "DEFAULT" or "EVENT OF DEFAULT" under and as defined in the
Subordinated Note Indenture or the Subordinated Notes shall have occurred;"
8. ACKNOWLEDGMENT. The Parent has notified the Administrative Agent of
its intention to amend its certificate of incorporation pursuant to the
Certificate of Amendment to Fourth Amended and Restated Certificate of
Incorporation in the form attached as EXHIBIT A hereto (the "CHARTER
AMENDMENT"). By its signature below, (a) the Parent certifies that the Charter
Amendment will not violate the provisions of Section 9.4 of the Credit
Agreement, and (b) each of the Administrative Agent and the Required Lenders
acknowledges that the notice of the Charter Amendment provided by the Parent in
this Section 8 satisfies the notice requirements set forth in Section 9.4 of the
Credit Agreement.
9. EFFECTIVENESS. This Amendment shall be deemed to be effective upon the
satisfaction of each of the following conditions precedent:
(a) the Administrative Agent shall have received a counterpart signature
page to this Amendment duly executed and delivered by each Borrower and the
Required Lenders;
(b) each of the Borrowers shall have delivered to the Administrative Agent
evidence satisfactory to the Administrative Agent that all corporate action
necessary for the valid execution, delivery and performance by such Borrower of
this Amendment has been duly and effectively taken; and
(c) the Parent shall have issued Subordinated Notes pursuant to the
Subordinated Note Indenture in an amount not less than $150,000,000 and shall
upon receipt apply the Net Cash Proceeds thereof to the outstanding Loans in
accordance with Sections 2.11.3 and 3.6.3 of the Credit Agreement.
10. AMENDMENT FEE. Upon receipt of the proceeds from the issuance of the
Subordinated Notes pursuant to the Subordinated Note Indenture, by their
signatures hereto the Borrowers hereby agree to pay to the Administrative Agent,
for the account of each Lender
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which returns an executed counterpart signature page to this Amendment to the
Administrative Agent on or prior to 5:00 p.m. (Boston time) on May 22, 2002, an
amendment fee equal to five (5) basis points on such Lender's Revolving Credit
Commitment and interest in the Term Loan.
11. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
represents and warrants to the Banks as follows:
(a) The execution and delivery by each Borrower of this Amendment, and the
performance by each Borrower of its obligations and agreements under this
Amendment and the Credit Agreement as amended hereby, are within the corporate
authority of each Borrower and, have been duly authorized by all necessary
entity proceedings on behalf of each Borrower, and do not and will not
contravene any provision of law, statute, rule or regulation to which any
Borrower is subject or any Borrower's Governing Document or any stock provision
or any amendment thereof or of any agreement or other instrument binding upon
any Borrower.
(b) This Amendment and the Credit Agreement as amended hereby constitute
legal, valid and binding obligations of each Borrower, enforceable in accordance
with their respective terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
(c) Other than approvals or consents which have been obtained, no approval
or consent of, or filing with, any governmental agency or authority is required
to make valid and legally binding the execution, delivery or performance by any
Borrower of this Amendment or the Credit Agreement as amended hereby.
(d) The representations and warranties contained in Section 7 of the
Credit Agreement are true and correct at and as of the date made and as of the
date hereof, except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, or to the extent that such representations
and warranties relate expressly to an earlier date.
(e) (i) Each of the Borrowers' Governing Documents have not been amended
since the date such Governing Documents were last certified to the
Administrative Agent (or shall deliver the same if amended), and (ii) each of
the Borrowers is in good standing or is authorized to do business in its state
of incorporation and in each state in which such Borrower does business.
(f) Each Borrower has performed and complied in all material respects with
all terms and conditions herein required to be performed or complied with by it
prior to or at the time hereof, and as of the date hereof, after giving effect
to the provisions hereof, there exists no Default or Event of Default.
12. MISCELLANEOUS PROVISIONS
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(a) 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 Amendment and the Credit Agreement shall hereafter be read and
construed together as a single document, and all references in the Credit
Agreement, any other Loan Document or any agreement or instrument related to the
Credit Agreement shall hereafter refer to the Credit Agreement as amended by
this Amendment.
(b) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF
LAWS) AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
(c) This Amendment may be executed in any number of counterparts, and all
such counterparts shall together constitute but one instrument. In making proof
of this Amendment it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as a
sealed instrument as of the date first set forth above.
IESI CORPORATION
IESI TX CORPORATION
IESI NY CORPORATION
IESI NJ CORPORATION
IESI NJ RECYCLING CORPORATION
IESI AR CORPORATION
IESI MO CORPORATION
IESI AR LANDFILL CORPORATION
IESI PA CORPORATION
IESI TX GP CORPORATION
WASTE WATCHERS, INC.
IESI PA BETHLEHEM LANDFILL CORPORATION
IESI PA BLUE RIDGE LANDFILL CORPORATION
IESI LA CORPORATION
IESI LA LANDFILL CORPORATION
By:
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Xxxxxx X. Xxxxx, Senior Vice President
IESI TX LANDFILL LP, By IESI TX GP
Corporation, its General Partner
By:
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Xxxxxx X. Xxxxx, Senior Vice President
IESI DE CORPORATION
IESI DE LP CORPORATION
By:
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Name:
Title:
FLEET NATIONAL BANK, individually
and as Administrative Agent
By:
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Xxxxxxx X. Xxxxxxx, Managing
Director
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Documentation
Agent
By:
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Name:
CREDIT SUISSE FIRST BOSTON,
individually and as Syndication Agent
By:
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Name:
CITICORP NORTH AMERICA, INC.,
individually and as Syndication
Agent
By:
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Name:
UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
BNP PARIBAS
By:
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Name:
By:
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Name:
COMERICA BANK
By:
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Name:
FIRST BANK & TRUST (f/k/a First Bank
Texas, N.A.)
By:
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Name:
XX XXXXXX CHASE BANK (f/k/a CHASE
MANHATTAN BANK)
By:
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Name:
CITICORP NORTH AMERICA, INC.
By:
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Name:
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By:
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Name:
INDOSUEZ CAPITAL FUNDING IV, LP
By:
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Name:
INDOSUEZ CAPITAL FUNDING III, LIMITED
By:
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Name:
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By:
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Name:
RIVIERA FUNDING LLC
By:
--------------------------------------
Name: