Exhibit 10.41
SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Second
Amendment") is made and entered into as of the 26th day of November, 1996, by
and among EASTERN ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the
"Parent"), its Subsidiaries listed on the signature pages hereto (the Parent and
such Subsidiaries herein collectively referred to as the "Borrowers" and,
individually, as a "Borrower"), each of which Borrowers having its principal
place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000 and THE
FIRST NATIONAL BANK OF BOSTON ("FNBB"), a national banking association having
its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, BANK OF AMERICA ILLINOIS, an Illinois banking corporation having its head
office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("B of A") and such
banks or other financial institutions which become a party hereto (each a
"Bank," and, collectively, the "Banks"), and FNBB as Agent for the Banks (the
"Agent").
WHEREAS, the Borrowers, the Banks and the Agent have entered into a
Revolving Credit Agreement dated as of September 25, 1996 and amended by a First
Amendment to Revolving Credit Agreement dated as of November 14, 1996 (as
further amended and in effect from time to time, the "Credit Agreement")
pursuant to which the Banks extended credit to the Borrowers on the terms set
forth therein;
WHEREAS, the Banks and the Borrowers have agreed to amend the Credit
Agreement as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein without definition have the
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meanings ascribed to them in the Credit Agreement.
2. Amendment to (S)1.1 of the Credit Agreement. The following definition
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appearing in (S)1.1 of the Credit Agreement is hereby deleted in its entirety
and the following substituted in place thereof:
Proforma EBITDA. For any twelve month period, the Consolidated Net
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Income (or Deficit) of the Borrowers determined in accordance with GAAP,
provided that, with respect to any Subsidiary (other than R & A Xxxxxx,
Inc. ("Xxxxxx")) acquired within the past twelve months or to be acquired,
the calculation of Consolidated Net Income (or Deficit) for the period
prior to such Subsidiary's acquistion may include reference to such
Subsidiary's historical financial statements (which have been reviewed and
analyzed by the Parent in
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accordance with its standard due diligence practices and which are in form
and substance satisfactory to the Banks) as such statements may be adjusted
by agreement between the Banks and the Borrowers as if such Subsidiary had
been owned for those twelve months, plus (a) interest expense, (b) income
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taxes, (c) depreciation and landfill depletion expense, and (d)
amortization expense, to the extent that each of the same has been deducted
in calculating such Consolidated Net Income (or Deficit), plus the
following amounts relating to Xxxxxx (e) $4,400,000 for the four fiscal
quarters ending December 31, 1996, (f) $3,200,000 for the fiscal quarter
ending March 31, 1996, (g) $2,000,000 for the fiscal quarter ending June
30, 1997 included in such calculation of EBITDA, and (h) $800,000 for the
fiscal quarter ending September 30, 1997, but excluding one-time charges of
not more than (i) $2,820,000 for the fiscal quarter ended June 30, 1996 and
(ii) $1,857,000 for the fiscal quarter ended September 30, 1996.
3. Amendment to (S)7.1(f) of the Credit Agreement. Section 7.1(f) of the
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Credit Agreement is hereby deleted in its entirety and the following substituted
in place thereof:
"(f) Indebtedness of the Borrowers incurred in connection with the
acquisition after the date hereof of any real or personal property by the
Borrowers, provided that the aggregate principal amount of such
Indebtedness of the Borrowers shall not exceed (i) $6,500,000 at any one
time on or before January 1, 1997 or (ii) $5,000,000 at any one time
thereafter; and"
4. Consent to Xxxxxx Acquisition. Any Event of Default which would
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otherwise occur under subclause (e) of (S)7.4 of the Credit Agreement as a
result of the transaction described in the 10/18/96 draft of Agreement for the
Sale and Purchase of the Stock of R & A Xxxxxx, Inc. and Real Estate Owned by R
& A Xxxxxx Property, Ltd. known as the Xxxxxx Landfill (the "Purchase
Agreement") is hereby waived, provided that (a) the aggregate purchase price
paid in connection therewith shall not exceed (i) $1,000,000 in common stock of
Parent, (ii) warrants for 50,000 shares of common stock of Parent, and (iii) an
aggregate of $18,000,000 in cash, Indebtedness incurred in connection therewith
and purchase price adjustments, and (b) the Borrowers shall comply with all
other provisions of (S)7.4 of the Credit Agreement.
5. Ratification, etc. Except as expressly amended hereby, the Credit
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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 Second 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 Second Amendment.
6. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF
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THE COMMONWEALTH OF MASSACHUSETTS AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT
IN ACCORDANCE WITH SUCH LAWS.
7. Counterparts. This Second Amendment may be executed in any number of
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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. Complete sets of counterparts shall be lodged with the Banks.
8. Effectiveness. This Second Amendment shall become effective upon its
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execution and delivery by the respective parties hereto.
9. Entire Agreement. THE CREDIT AGREEMENT AS AMENDED REPRESENTS THE FINAL
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AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment under seal as of the date first set forth above.
THE BORROWERS:
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EASTERN ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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NHD, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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PULAKSI GRADING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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CAROLINA GRADING, INC.
By: /s/ Xxxxxxx X.Xxxxxxxx
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Title: Treasurer
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S&S GRADING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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ALLIED WASTE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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XXXXX SANITARY SYSTEM, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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EASTERN WASTE OF NEW YORK, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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THE BANKS:
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BANK OF AMERICA ILLINOIS
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Vice - President
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THE FIRST NATIONAL BANK OF BOSTON,
individually and as Agent
By: /s/ Xxx X. Xxxxxx
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Title: Divison Executive
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