FIRST AMENDMENT
TO
CREDIT AGREEMENT
BY AND AMONG
LASALLE NATIONAL BANK, AS AGENT
THE LENDERS SIGNATORY OR PARTIES THERETO
AND
CONTINENTAL WASTE INDUSTRIES, INC.
AND ITS SUBSIDIARIES
----------------------------------------
JUNE 6, 1995
----------------------------------------
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
June 6, 1995, 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 and WPP Services, Inc., an Ohio 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 (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, concurrently herewith, Bank of America Illinois and The First
National Bank of Boston are executing an Assignment and
Acceptance pursuant to which such institutions have become parties to and
Lenders under the Credit Agreement;
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 CONTINGENT LIABILITY. The definition of
"Contingent Liability" at Section 1.A of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
"CONTINGENT LIABILITY" or "CONTINGENT LIABILITIES" means any agreement,
undertaking or arrangement by which any Person (i) guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the debt, obligation or other liability of any other Person (other
than by endorsement of instruments in the course of collection), or (ii)
guarantees the payment of dividends or other distributions upon the shares of
any other Person, or (iii) undertakes or agrees (contingently or otherwise) (a)
to purchase, repurchase, or otherwise acquire any Debt, obligation or liability
or any security therefor, or (b) to provide funds for the payment or discharge
thereof (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), or (c) to maintain solvency, assets, level of
income or other financial condition, or (d) to make payment other than for
values received. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth herein) be deemed to be the
outstanding principal amount (or maximum permitted principal amount, if larger)
of the debt, obligation or other liability guaranteed or supported thereby.
Contingent Liabilites shall include, without limitation, closure and post-
closure liabilities for which any Borrower may be or become obligated in
connection with the closure of any Landfill or transfer station owned or
operated by any Borrower."
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3. SECTION 1.A. DEFINITION OF LANDFILLS. The definition of "Landfills"
at Section 1.A of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
" "LANDFILLS" means any landfills owned or operated by any of the
Borrowers."
4. SECTION 2.B(F). PARTICIPATION IN LETTERS OF CREDIT. Section 2.B(f)
of the Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"(f) PARTICIPATION IN LETTERS OF CREDIT. Each Lender shall
participate on a PRO RATA basis in the Letters of Credit issued by the Agent,
which participation shall automatically arise upon the issuance of each Letter
of Credit. Each Lender unconditionally agrees that in the event the Borrowers
do not reimburse the Agent by the time such reimbursement is due (as set forth
in subsection (d) above) for the amount paid by the Agent on any draft presented
under a Letter of Credit, then in that event such Lender shall pay to the Agent
that portion of the amount of each draft so paid by the Agent which is equal to
the same percentage of the amount so paid as the percentage which its Commitment
bears to the aggregate of the Commitments and in return such Lender shall
automatically receive an equivalent percentage participation in the rights of
the Agent to obtain reimbursement from the Borrowers for the amount of such
draft, together with interest thereon as provided for herein. In the event that
any Lender fails to honor its obligation to reimburse the Agent for its PRO RATA
share of the amount of any such draft, then in that event (i) each other Lender
may, but shall not be obligated to, pay to the Agent its PRO RATA share of the
payment due the Agent from the defaulting Lender, (ii) the defaulting Lender
shall have no right to participate in any recoveries from the Borrowers in
respect of such draft, and (iii) all amounts to which the defaulting Lender
would otherwise be entitled under the terms of this Agreement shall first be
applied to reimbursing any such Lenders making payments to the Agent under
clause (i) above for their respective PRO RATA shares of the defaulting Lender's
portion of the draft, together with interest thereon at the rate provided for in
subsection (d) above. Upon reimbursement to such other Lenders pursuant to
clause (iii) above of the amount advanced by them to the Agent in respect of the
defaulting Lender's share of the draft, together with interest thereon, the
defaulting Lender shall thereupon be entitled to its participation in the
Agent's rights of recovery against the Borrowers in respect of the draft paid by
the Agent."
5. SECTION 7.K. CORPORATE STRUCTURE AND AFFILIATES. Section 7.K of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
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"Section 7.K. CORPORATE STRUCTURE AND AFFILIATES. CWI has no
Subsidiaries and no Affiliates, other than the other Borrowers identified on
SCHEDULE 7.A hereto, and other than the Persons hereafter acquired/formed by any
Borrower from time to time, and directors and shareholders of the foregoing."
6. SECTION 8.A.2. FINANCIAL INFORMATION. Section 8.A.2(i) of the Credit
Agreement hereby is deleted in its entirety.
7. SECTION 8.B.2. DEBT. Section 8.B.2(a)(ii) of the Credit Agreement
is hereby deleted in its entirety and replaced with the following:
"(ii) Subordinated Debt up to $2,000,000 on terms and conditions
acceptable to all Lenders;"
8. SECTION 8.B.2. CAPITAL EXPENDITURES. Section 8.B.2(b) of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
"(b) The Borrowers shall not make Capital Expenditures in excess of Eight
Million Dollars ($8,000,000) in the aggregate during any one Fiscal Year, it
being understood that the amount of any Capital Expenditures permitted to be
made during any one Fiscal Year, but not so made, shall not carry over to any
subsequent Fiscal Year; and provided further that 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)."
9. SECTION 8.B.3. MERGERS AND ACQUISITIONS. Subsection (3) of Section
8.B.3 of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:
"(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;"
10. SECTION 10.C. ENTRY UPON PREMISES AND ACCESS TO INFORMATION. The
first sentence of Section 10.C of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
"Section 10.C. ENTRY UPON PREMISES AND ACCESS TO INFORMATION. If an
Event of Default then exists, without notice, demand or legal process of any
kind, Agent, with the consent of all Lenders, may take possession of any or all
of the Collateral, wherever it might be found and for that purpose, Agent shall
have
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the right, without breaching the peace, to enter upon the premises of any
Borrower where the Collateral is located (or is believed to be located) without
any obligation to pay rent to any Borrower, or any other place or places under
the control of any Borrower where the Collateral is believed to be located and
kept, and remove the Collateral therefrom to the premises of Agent or any agent
of Agent, for such time as Agent may desire, in order to effectively collect or
liquidate the Collateral, and/or Agent may require any Borrower to assemble the
Collateral and make it available to Agent at a place or places to be designated
by Agent."
11. SECTION 10.G. APPLICATION OF PAYMENTS. Subsection A of Section 10.G
of the Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"A. First, to the payment of all reasonable expenses (to the extent
not paid by Borrowers) actually incurred by the Agent and/or any of the Lenders
in connection with the exercise of such rights or remedies, including all out-
of-pocket costs and expenses of collection, reasonable attorneys' fees and court
costs, all costs incurred by any one or more of the Agent or the Lenders
directly or indirectly in carrying out the terms, covenants and agreements
contained in any Loan Document, together with interest thereon as provided
therein, and all other costs and expenses described in Section 8.A.6;"
12. SECTION 11.A. AGENCY PROVISIONS. Section 11.A(a) of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
"Section 11.A. APPOINTMENT.
(a) Each Lender hereby designates and appoints LaSalle National Bank as
Agent of such Lender under this Agreement and the Loan Documents, and each
Lender hereby irrevocably authorizes Agent to take such action on its behalf
under the provisions of this Agreement and the Loan Documents and to exercise
such powers as are set forth herein or therein, together with such other powers
as are incidental thereto. Agent agrees to act as such on the express conditions
contained in this Section 11."
13. SECTION 11.D. DISTRIBUTION AND APPOINTMENT OF PAYMENTS. The second
sentence of Section 11.D of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
"So long as there does not exist an Event of Default, all payments of
principal and interest in respect of outstanding Loans, all payments of the fees
described in this Agreement, and all payments in respect of any other
Obligations shall be allocated among such of Lenders as are entitled thereto, in
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proportion to their respective PRO RATA shares or otherwise as provided herein."
14. SECTION 11.K. ACTIONS AGAINST COLLATERAL. Section 11.K of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"Section 11.K. ACTIONS AGAINST COLLATERAL. Each Lender agrees that it
will not take any action, nor institute any actions or proceedings, against any
Borrower or any other obligor hereunder with respect to exercising claims
against or rights in any Collateral without the consent of the Agent and the
Lenders."
15. SECTION 12.A. ASSIGNMENTS AND PARTICIPATIONS. Sections 12.A(a) and
12.A(e) of the Credit Agreement are hereby deleted in their entirety and
replaced with the following:
"Section 12.A. ASSIGNMENTS AND PARTICIPATIONS.
(a) With the prior consent of both the Agent and CWI (which consents shall
not be unreasonably withheld or delayed), a Lender may assign to one or more
banks or other financial institutions all or a portion of its rights and
obligations under this Agreement (including without limitation all or a portion
of its Commitments, the Loans owing to it, and participation in Letters of
Credit); PROVIDED, HOWEVER, that (i) each such assignment shall be of a
constant, and not a varying, percentage of such Lender's rights and obligations
under this Agreement, (ii) unless CWI and the Agent otherwise consent, the
aggregate amount of the Commitments of such Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than Five Million
Dollars ($5,000,000) and shall be an integral multiple of One Million Dollars
($1,000,000) and (iii) the parties to each such assignment shall execute and
deliver to Agent, for its approval and acceptance, an Assignment and Acceptance
in the form of EXHIBIT L hereto (an "ASSIGNMENT AND ACCEPTANCE"); PROVIDED,
FURTHER that any Lender, without the consent of the Agent or CWI, may assign all
or part of its rights and obligations to any Affiliate of the assigning Lender.
Upon such execution, delivery, approval and acceptance of the Assignment and
Acceptance, and upon the effective date specified therein, (a) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (b) the
Lender-assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this
Agreement."
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"(e) With the prior consent of both CWI and the Agent (which consents shall
not be unreasonably withheld) each Lender may sell participations in or to all
or a portion of its rights and obligations under this Agreement (including
without limitation all or a portion of its Commitment, the Loans owing to it and
participations in Letters of Credit); PROVIDED, HOWEVER, that in connection with
any such sale, (i) such Lender's obligations under this Agreement (including
without limitation its Commitment to Borrowers hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) Borrowers, Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
with regard to any and all payments to be made under this Agreement, (iv) the
holder of any such participation shall not be entitled to voting rights under
this Agreement except for voting rights with respect to the amendment or
modification of those provisions of this Agreement for which the consent of all
Lenders would be required; and (v) any party to which such a participation has
been granted shall have the benefits of Sections 3.J. and 3.K. but shall not be
entitled to receive any greater payment under either such Section than the
Lender granting such participation would have been entitled to receive with
respect to the rights transferred. No such participant shall have any rights
under this Agreement except as provided in this Section 12.A.(e)."
16. FINANCIAL COVENANT. The following subsection (e) hereby is added to
Section 8.A.1 of the Credit Agreement:
"(e) The Borrowers' Consolidated ratio of (a) interest-bearing Debt
to (b) EBITDA, as determined as of the end of each quarter of CWI's Fiscal Year
for the period of the four fiscal quarters then ending (provided, however, that
notwithstanding the foregoing, said ratio shall be determined on an annualized
basis at June 30, 1995 for the one fiscal quarter then ended, at September 30,
1995 for the two fiscal quarters then ended, at December 31, 1995 for the three
fiscal quarters then ended, and at all times thereafter for the four fiscal
quarters then ended), shall not be greater than the following ratios at any time
during the following periods:
RATIO PERIOD
3.75 to 1.0 From June 30, 1995 to, and including, March 31, 1996;
3.50 to 1.0 From April 1, 1996 to, and including, March 31, 1997;
3.25 to 1.0 From April 1, 1997, and at all times thereafter."
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17. CONDITIONS PRECEDENT.
17.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:
17.A.1. A copy of this Amendment duly executed by Borrowers.
17.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.
18. 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.
19. 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.
20. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Amendment has been
executed, delivered and accepted in and shall be deemed
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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.
21. 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.
22. 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.
23. 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.
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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:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX BROTHERS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX BROTHERS WASTE, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BERRIEN COUNTY LANDFILL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BLUEGRASS RECYCLING & TRANSFER
COMPANY
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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COMMERCIAL WASTE DISPOSAL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX WASTE, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CWI OF ILLINOIS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CWI OF MISSOURI, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CWI VENTURE, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FLL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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G.E.M. ENVIRONMENTAL MANAGEMENT
INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GILA BEND REGIONAL LANDFILL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GREENFIELD ENVIRONMENTAL DEVELOPMENT
CORP.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
JAMAX CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KARAT CORP.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MIDWEST MATERIAL MANAGEMENT, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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NORTHWEST TENNESSEE DISPOSAL
CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXX LANDFILL CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX HOLLOW LANDFILL CORP.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SANIFILL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SOUTHERN ILLINOIS REGIONAL
LANDFILL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SOUTH TRANS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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SPRINGFIELD ENVIRONMENTAL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SPRINGFIELD ENVIRONMENTAL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TRIPLE G LANDFILLS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
UNITED REFUSE CO., INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
VICTORY ENVIRONMENTAL SERVICES,
INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
VICTORY WASTE INCORPORATED
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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XXX XXXXXXXXXXX XX XXXXX XXXX S.A.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WPP SERVICES, INC.
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
AGENT:
LASALLE NATIONAL BANK, as Agent
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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LENDERS:
LASALLE NATIONAL BANK
000 Xxxxx XxXxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Lending Offices: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Prime Rate Loan: _________________________
_________________________
_________________________
LIBOR Loans: _________________________
_________________________
_________________________
Amount of Commitment: $15,000,000
THE FIRST NATIONAL BANK OF BOSTON
000 Xxxxxxx Xxxxxx By: /s/ ?
Xxxxxx, XX 00000 ------------------------------
Name: ?
---------------------------
Title: ?
---------------------------
Telephone: 000-000-0000
Telecopy: 000-000-0000
Lending Offices: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Prime Rate Loan: _________________________
_________________________
_________________________
LIBOR Loans: _________________________
_________________________
_________________________
Amount of Commitment: $15,000,000
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BANK OF AMERICA ILLINOIS
000 Xxxxx XxXxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------
Title: Vice President
---------------------------
Telephone: 000-000-0000
Telecopy: 000-000-0000
Lending Offices: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Prime Rate Loan: _________________________
_________________________
_________________________
LIBOR Loans: _________________________
_________________________
_________________________
Amount of Commitment: $15,000,000
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REVOLVING NOTE
$15,000,000 June 6, 1995
Continental Waste Industries, Inc., a Delaware corporation, 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., 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, and WPP Services,
Inc., an Ohio corporation (individually, any of said corporations may be
referred to herein as a "MAKER," and collectively are sometimes referred to as
the "MAKERS"), for value received, hereby jointly and severally promise to pay
to the order of The First National Bank of Boston (the "BANK"), on the
Expiration Date (as defined in the Credit Agreement), the principal sum of
Fifteen Million Dollars ($15,000,000), or, if less, the aggregate unpaid
principal amount of all Revolving Loans made to the Makers by the Bank pursuant
to the Credit Agreement referenced below. This Note shall bear interest
(computed on the basis of a 360 day year) on any and all principal amounts
remaining unpaid hereunder from time to time, from the date hereof until
maturity, at a fluctuating interest rate per annum determined in accordance with
Section 3 of the Credit Agreement. Interest hereunder shall be payable in
arrears at the times set forth at Section 3 of the Credit Agreement. Any amount
of interest or principal hereof which is not paid when due, whether at maturity,
by acceleration or otherwise, shall bear interest payable on demand at a
fluctuating annual interest rate equal at all times to the applicable Default
Rate. If, at any time, the applicable interest rate hereunder is deemed by any
competent court of law, governmental agency, board, commission or tribunal, to
exceed the maximum rate of interest permitted by applicable law,
then, for such time as the applicable interest rate hereunder would be deemed
excessive, such interest rate shall be suspended and this Note shall bear
interest at the maximum rate permissible under such applicable law, but
thereafter, the former applicable interest rate hereunder shall be reinstated.
This Note may be prepaid in whole or in part at any time or from time
to time in accordance with the terms of the Credit Agreement. All payments
hereunder shall be applied first to interest on the unpaid balance at the rate
herein specified or referred to and then to principal. All payments of
principal and interest on this Note shall be payable in lawful money of the
United States of America at the offices of LaSalle National Bank located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
holder of this Note may designate in writing to the undersigned. Except as
otherwise set forth in the Credit Agreement, if any payment of principal or
interest hereunder shall become due on a Saturday, Sunday or business holiday
under the laws of the State of Illinois or the United States of America, such
payments shall be made on the next succeeding business day and such extension
shall be included in computing any interest in respect of such payment.
This Note is the or one of the Revolving Notes referred to in, and
evidences certain indebtedness incurred by the Makers to the Bank under, that
certain Credit Agreement dated March 28, 1995, among the Bank, LaSalle National
Bank as Agent, and the Makers as amended by a First Amendment to Credit
Agreement of even date herewith (together with any amendments, extensions,
modifications, renewals, restatements and substitutions thereof and therefor,
being referred to herein, collectively, as the "CREDIT AGREEMENT"), to which
reference is hereby made for a statement of the terms and conditions under which
the due date of this Note or any payment thereon may be accelerated. The holder
of this Note is entitled to all of the benefits and security provided in said
Credit Agreement, and the Loan Documents referred to therein. The Makers
jointly and severally agree to pay all costs of collection and all reasonable
attorneys' fees paid or incurred in enforcing any of the Bank's rights
hereunder, under the Credit Agreement, or under any Loan Documents referred to
therein promptly on demand of the Bank.
The principal amount of this Note evidences the maximum aggregate principal
amount of all Revolving Loans available to the Makers from the Bank pursuant to
the Credit Agreement. Notwithstanding the stated principal amount of this Note,
the Makers' liability hereunder at any time hereafter shall be limited to the
aggregate of the then unpaid principal amount of all Revolving Loans made by the
Bank to or for the account of the Makers pursuant to the Credit Agreement,
together with accrued interest thereon, and all other costs and expenses as
provided in the Credit Agreement. In determining the Makers' liability to the
-2-
Bank hereunder, the books and records of the Bank shall establish a rebuttable
presumption of such liability.
EXCEPT TO THE EXTENT PROVIDED IN THE CREDIT AGREEMENT, THE MAKERS HEREBY
WAIVE DEMAND, PRESENTMENT, PROTEST, NOTICE OF PROTEST, NOTICE OF DISHONOR OR
DEFAULT AND ANY OTHER NOTICE OR DEMAND OF WHATSOEVER KIND OR NATURE IN
CONNECTION WITH THIS NOTE AND THE LOANS EVIDENCED HEREBY. THE MAKERS HEREBY
CONSENT TO THE JURISDICTION OF ANY FEDERAL, STATE OR LOCAL COURT LOCATED WITHIN
XXXX COUNTY, ILLINOIS AND WAIVE ANY RIGHT TO TRIAL BY JURY AND ANY OBJECTION TO
VENUE WITH RESPECT TO ANY ACTION INSTITUTED HEREUNDER OR UNDER THE CREDIT
AGREEMENT. THE MAKERS HEREBY FURTHER WAIVE PERSONAL SERVICE OF ANY PROCESS OR
PAPERS TO BE SERVED IN ANY SUCH ACTION AND AGREE THAT ANY SUCH SERVICE MAY BE
MADE BY MAILING SUCH PROCESS OR PAPERS, POSTAGE PREPAID AND ADDRESSED TO BOTH
THE MAKERS AT THE ADDRESS SET FORTH BELOW AND TO THE MAKERS' REGISTERED AGENTS,
BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN WHICH CASE SUCH
PROCESS OR PAPERS SHALL BE DEEMED RECEIVED FIVE (5) DAYS THEREAFTER, OR BY
OVERNIGHT MAIL OR EXPRESS DELIVERY SERVICE, IN WHICH CASE SUCH PROCESS OR PAPERS
SHALL BE DEEMED RECEIVED ONE (1) DAY THEREAFTER.
MAKERS:
CONTINENTAL WASTE INDUSTRIES,
INC., a Delaware corporation
MAILING ADDRESS:
00 Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Xxxxx 000 ------------------------------------
Xxxxx, XX 00000 Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX BROTHERS, INC.
a Tennessee corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
XXXXXX BROTHERS WASTE, INC.,
a Tennessee corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-3-
MAILING ADDRESS:
BERRIEN COUNTY LANDFILL, INC.,
a Michigan corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
BLUEGRASS RECYCLING & TRANSFER
COMPANY, a Kentucky corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
COMMERCIAL WASTE DISPOSAL, INC.,
a Kentucky corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
XXXXXXXXX WASTE INC., a
Tennessee corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
CWI OF ILLINOIS, INC.,
an Illinois corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-4-
MAILING ADDRESS:
CWI OF MISSOURI, INC.,
a Missouri corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
CWI VENTURE, INC.,
a New Jersey corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
FLL, INC.,
a Michigan corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
G.E.M. ENVIRONMENTAL MANAGEMENT
INC., a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
GILA BEND REGIONAL LANDFILL,
INC., an Arizona corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-5-
MAILING ADDRESS:
GREENFIELD ENVIRONMENTAL
DEVELOPMENT CORP.,
a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
JAMAX CORPORATION, an Indiana
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
KARAT CORP., a New Jersey
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
MIDWEST MATERIAL MANAGEMENT,
INC., an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
NORTHWEST TENNESSEE DISPOSAL
CORPORATION, a Tennessee
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-6-
MAILING ADDRESS:
PRICHARD LANDFILL CORPORATION
a West Virginia corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SANIFILL, INC., a Tennessee
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
XXXXX HOLLOW LANDFILL CORP.
a West Virginia corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SOUTHERN ILLINOIS REGIONAL
LANDFILL, INC., an Illinois
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SOUTH TRANS, INC.,
a New Jersey corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-7-
MAILING ADDRESS:
SPRINGFIELD ENVIRONMENTAL, INC.,
a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SPRINGFIELD ENVIRONMENTAL, INC.,
an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
TRIPLE G LANDFILLS, INC.,
an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
UNITED REFUSE CO., INC.,
an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
VICTORY ENVIRONMENTAL SERVICES,
INC., a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-8-
MAILING ADDRESS:
VICTORY WASTE INCORPORATED,
a California corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
WPP CONTINENTAL de COSTA RICA
S.A., a Costa Rican corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
WPP SERVICES, INC.,
an Ohio corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-9-
REVOLVING NOTE
$15,000,000 June 6, 1995
Continental Waste Industries, Inc., a Delaware corporation, 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., 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, and WPP Services,
Inc., an Ohio corporation (individually, any of said corporations may be
referred to herein as a "MAKER," and collectively are sometimes referred to as
the "MAKERS"), for value received, hereby jointly and severally promise to pay
to the order of Bank of America Illinois (the "BANK"), on the Expiration Date
(as defined in the Credit Agreement), the principal sum of Fifteen Million
Dollars ($15,000,000), or, if less, the aggregate unpaid principal amount of all
Revolving Loans made to the Makers by the Bank pursuant to the Credit Agreement
referenced below. This Note shall bear interest (computed on the basis of a 360
day year) on any and all principal amounts remaining unpaid hereunder from time
to time, from the date hereof until maturity, at a fluctuating interest rate per
annum determined in accordance with Section 3 of the Credit Agreement. Interest
hereunder shall be payable in arrears at the times set forth at Section 3 of the
Credit Agreement. Any amount of interest or principal hereof which is not paid
when due, whether at maturity, by acceleration or otherwise, shall bear interest
payable on demand at a fluctuating annual interest rate equal at all times to
the applicable Default Rate. If, at any time, the applicable interest rate
hereunder is deemed by any competent court of law, governmental agency, board,
commission or tribunal, to exceed the maximum rate of interest permitted by
applicable law, then, for
interest rate hereunder would be deemed excessive, such interest rate shall be
suspended and this Note shall bear interest at the maximum rate permissible
under such applicable law, but thereafter, the former applicable interest rate
hereunder shall be reinstated.
This Note may be prepaid in whole or in part at any time or from time
to time in accordance with the terms of the Credit Agreement. All payments
hereunder shall be applied first to interest on the unpaid balance at the rate
herein specified or referred to and then to principal. All payments of
principal and interest on this Note shall be payable in lawful money of the
United States of America at the offices of LaSalle National Bank located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
holder of this Note may designate in writing to the undersigned. Except as
otherwise set forth in the Credit Agreement, if any payment of principal or
interest hereunder shall become due on a Saturday, Sunday or business holiday
under the laws of the State of Illinois or the United States of America, such
payments shall be made on the next succeeding business day and such extension
shall be included in computing any interest in respect of such payment.
This Note is the or one of the Revolving Notes referred to in, and
evidences certain indebtedness incurred by the Makers to the Bank under, that
certain Credit Agreement dated March 28, 1995, among the Bank, LaSalle National
Bank as Agent, and the Makers as amended by a First Amendment to Credit
Agreement of even date herewith (together with any amendments, extensions,
modifications, renewals, restatements and substitutions thereof and therefor,
being referred to herein, collectively, as the "CREDIT AGREEMENT"), to which
reference is hereby made for a statement of the terms and conditions under which
the due date of this Note or any payment thereon may be accelerated. The holder
of this Note is entitled to all of the benefits and security provided in said
Credit Agreement, and the Loan Documents referred to therein. The Makers
jointly and severally agree to pay all costs of collection and all reasonable
attorneys' fees paid or incurred in enforcing any of the Bank's rights
hereunder, under the Credit Agreement, or under any Loan Documents referred to
therein promptly on demand of the Bank.
The principal amount of this Note evidences the maximum aggregate principal
amount of all Revolving Loans available to the Makers from the Bank pursuant to
the Credit Agreement. Notwithstanding the stated principal amount of this Note,
the Makers' liability hereunder at any time hereafter shall be limited to the
aggregate of the then unpaid principal amount of all Revolving Loans made by the
Bank to or for the account of the Makers pursuant to the Credit Agreement,
together with accrued interest thereon, and all other costs and expenses as
provided in the Credit Agreement. In determining the Makers' liability to the
Bank hereunder, the books and records of the Bank shall establish a rebuttable
presumption of such liability.
-2-
EXCEPT TO THE EXTENT PROVIDED IN THE CREDIT AGREEMENT, THE MAKERS HEREBY
WAIVE DEMAND, PRESENTMENT, PROTEST, NOTICE OF PROTEST, NOTICE OF DISHONOR OR
DEFAULT AND ANY OTHER NOTICE OR DEMAND OF WHATSOEVER KIND OR NATURE IN
CONNECTION WITH THIS NOTE AND THE LOANS EVIDENCED HEREBY. THE MAKERS HEREBY
CONSENT TO THE JURISDICTION OF ANY FEDERAL, STATE OR LOCAL COURT LOCATED WITHIN
XXXX COUNTY, ILLINOIS AND WAIVE ANY RIGHT TO TRIAL BY JURY AND ANY OBJECTION TO
VENUE WITH RESPECT TO ANY ACTION INSTITUTED HEREUNDER OR UNDER THE CREDIT
AGREEMENT. THE MAKERS HEREBY FURTHER WAIVE PERSONAL SERVICE OF ANY PROCESS OR
PAPERS TO BE SERVED IN ANY SUCH ACTION AND AGREE THAT ANY SUCH SERVICE MAY BE
MADE BY MAILING SUCH PROCESS OR PAPERS, POSTAGE PREPAID AND ADDRESSED TO BOTH
THE MAKERS AT THE ADDRESS SET FORTH BELOW AND TO THE MAKERS' REGISTERED AGENTS,
BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN WHICH CASE SUCH
PROCESSOR PAPERS SHALL BE DEEMED RECEIVED FIVE (5) DAYS THEREAFTER, OR BY
OVERNIGHT MAIL OR EXPRESS DELIVERY SERVICE, IN WHICH CASE SUCH PROCESS OR PAPERS
SHALL BE DEEMED RECEIVED ONE (1) DAY THEREAFTER.
MAKERS:
CONTINENTAL WASTE INDUSTRIES,
INC., a Delaware corporation
MAILING ADDRESS:
00 Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Xxxxx 000 ------------------------------------
Xxxxx, XX 00000 Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX BROTHERS, INC.
a Tennessee corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
XXXXXX BROTHERS WASTE, INC.,
a Tennessee corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-3-
MAILING ADDRESS:
BERRIEN COUNTY LANDFILL, INC.,
a Michigan corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
BLUEGRASS RECYCLING & TRANSFER
COMPANY, a Kentucky corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
COMMERCIAL WASTE DISPOSAL, INC.,
a Kentucky corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
XXXXXXXXX WASTE INC., a
Tennessee corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
CWI OF ILLINOIS, INC.,
an Illinois corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-4-
MAILING ADDRESS:
CWI OF MISSOURI, INC.,
a Missouri corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
CWI VENTURE, INC.,
a New Jersey corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
FLL, INC.,
a Michigan corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
G.E.M. ENVIRONMENTAL MANAGEMENT
INC., a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
GILA BEND REGIONAL LANDFILL,
INC., an Arizona corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-5-
MAILING ADDRESS:
GREENFIELD ENVIRONMENTAL
DEVELOPMENT CORP.,
a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
JAMAX CORPORATION, an Indiana
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
KARAT CORP., a New Jersey
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
MIDWEST MATERIAL MANAGEMENT,
INC., an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
NORTHWEST TENNESSEE DISPOSAL
CORPORATION, a Tennessee
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-6-
MAILING ADDRESS:
PRICHARD LANDFILL CORPORATION
a West Virginia corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SANIFILL, INC., a Tennessee
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
XXXXX HOLLOW LANDFILL CORP.
a West Virginia corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SOUTHERN ILLINOIS REGIONAL
LANDFILL, INC., an Illinois
corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SOUTH TRANS, INC.,
a New Jersey corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-7-
MAILING ADDRESS:
SPRINGFIELD ENVIRONMENTAL, INC.,
a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
SPRINGFIELD ENVIRONMENTAL, INC.,
an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
TRIPLE G LANDFILLS, INC.,
an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
UNITED REFUSE CO., INC.,
an Indiana corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
VICTORY ENVIRONMENTAL SERVICES,
INC., a Delaware corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-8-
MAILING ADDRESS:
VICTORY WASTE INCORPORATED,
a California corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. -----------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
WPP CONTINENTAL de COSTA RICA
S.A., a Costa Rican corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
WPP SERVICES, INC.,
an Ohio corporation
c/o Continental Waste By: /s/ Xxxxxxx X. Xxxxxx
Industries Inc. ------------------------------------
00 Xxxxxx Xxxxxx, Xxxxx 000 Name: Xxxxxxx X. Xxxxxx
Xxxxx, XX 00000 Its: Vice President
-9-
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE is entered into as of June 6, 1995
between LaSalle National Bank (the "ASSIGNOR") and The First National Bank of
Boston (the "ASSIGNEE").
PRELIMINARY STATEMENTS:
A. Reference is made to that certain Credit Agreement dated as of
March 28, 1995 (as the same may be amended, restated, modified or renewed, the
"AGREEMENT") among LaSalle National Bank, as agent (the "AGENT") for itself and
each other bank or financial institution which is or becomes a party to the
Agreement by execution of a counterpart signature page thereto or an Assignment
and Acceptance, as assignee (collectively, the "LENDERS") and Continental Waste
Industries, Inc., a Delaware corporation ("CWI"), together with its Subsidiaries
(as defined in the Agreement) (individually, any of said corporations may be
referred to herein as a "BORROWER," and collectively are sometimes referred to
as the "BORROWERS"). Terms defined in the Agreement and not otherwise defined
herein are used herein as therein defined.
B. This Assignment and Acceptance is made with reference to the
following facts:
(i) The Assignor is a Lender and, as such, presently holds a PRO
RATA share of the rights and obligations of Lenders under the
Agreement.
(ii) As of the Effective Date (as defined below), the aggregate
amount of the Commitments of Lenders under the Agreement is set forth
below:
Aggregate Amount
----------------
Letter of Credit Commitment $ 5,000,000*
Revolving Loan Commitment 45,000,000 less
Existing Letters of
Credit
Total Commitment $45,000,000
(iii) On the terms and conditions set forth below, the
Assignor desires to sell and assign to the Assignee, and the Assignee
desires to purchase and assume from the Assignor, on the Effective
Date (as defined below), that portion of the Assignor's rights and
obligations under the Agreement which is equal to 0.333333333 percent
("ASSIGNED PERCENTAGE") of the rights and obligations of all Lenders
under the Agreement as of
--------------------
* Equal to the lesser of $5,000,000 or the unused amount of the Total
Commitment.
the Effective Date and which shall constitute the Assignee's PRO RATA
share.
NOW, THEREFORE, the Assignor and the Assignee hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that portion of the
Assignor's rights and obligations under the Agreement equal to the Assigned
Percentage of (a) the Commitment as in effect as of the Effective Date, and (b)
that portion of each of the Revolving Loans and the Letters of Credit
outstanding on the Effective Date.
2. The Assignor represents and warrants that as of the Effective
Date and before giving effect to this Assignment (a) its PRO RATA share is 100
percent; (b) its PRO RATA share of the Commitment is $45,000,000; and (c) it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim. The Assignor
makes no representation or warranty and assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Agreement or any other Loan Document, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Agreement or
any other Loan Document or any other instrument or document furnished pursuant
thereto or any Collateral or (ii) the financial condition of any party to any of
the Loan Documents or the performance or observance by any party to any of the
Loan Documents of any of its obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto. Except for the
representations above, the sale, transfer and assignment of the interests
hereunder is made without warranty or recourse against the Assignor.
3. The Assignee (a) confirms that it has received a copy of the
Agreement, together with copies of such documents and financial and other
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (b) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Agreement; (c) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Agreement
and the other Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (d) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Agreement are required to be performed by it as a Lender; and
(e) specifies
-2-
as its address for notices the office set forth beneath its name on the
signature page hereof.
4. Following the execution of this Assignment and Acceptance, the
original hereof will be delivered to the Agent for approval and acceptance by
the Agent and a copy hereof will be delivered to Borrowers. The effective date
for this Assignment and Acceptance (the "EFFECTIVE DATE") shall be the later of
(a) June 6, 1995, or (b) the date on which this Assignment and Acceptance is
accepted by the Agent; PROVIDED, HOWEVER, that the Assignor may in its sole and
absolute discretion terminate this Assignment and Acceptance if the Effective
Date has not occurred within sixty (60) days following the execution hereof by
the Assignor and the Assignee.
5. Upon such approval and acceptance by the Agent, from and after
the Effective Date, (a) the Assignee shall be a party to the Agreement and have
the rights and obligations of a Lender thereunder and under the other Loan
Documents; and (b) the Assignor shall, to the extent of the interests of
Assignor assigned pursuant hereto, relinquish its rights and be released from
its obligations under the Agreement and the other Loan Documents.
6. Upon such approval and acceptance by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Agreement in
respect of the interest assigned hereby (including without limitation all
payments of principal, interest and fees with respect thereto) to the Assignee.
The Assignor and the Assignee shall make all appropriate adjustments in payments
under the Agreement for periods prior to the Effective Date directly between
themselves. Assignor shall pay to Assignee, on the Effective Date, a commitment
fee equal to $75,000.
7. The Borrowers shall issue new promissory notes payable to the
order of the Assignee in an amount equal to the Assignee's PRO RATA share of the
Commitment, and to the Assignor in an amount equal to the PRO RATA share of the
Commitment retained by the Assignor.
-3-
8. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS, OBLIGATIONS AND
LIABILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
ASSIGNOR:
LASALLE NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: First Vice President
ASSIGNEE:
THE FIRST NATIONAL BANK OF BOSTON
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address for notices:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
000-000-0000 (Telephone)
000-000-0000 (Fax)
Accepted this 7th day of
June, 1995.
LASALLE NATIONAL BANK,
as Agent
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: First Vice President
-4-
Accepted this 2nd day of
June, 1995.
CONTINENTAL WASTE INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: XXXXXXX X. XXXXXX
-----------------------------------
Title: Executive V.P.
----------------------------------
-5-
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE is entered into as of June 6, 1995
between LaSalle National Bank (the "ASSIGNOR") and Bank of America Illinois (the
"ASSIGNEE").
PRELIMINARY STATEMENTS:
A. Reference is made to that certain Credit Agreement dated as of
March 28, 1995 (as the same may be amended, restated, modified or renewed, the
"AGREEMENT") among LaSalle National Bank, as agent (the "AGENT") for itself and
each other bank or financial institution which is or becomes a party to the
Agreement by execution of a counterpart signature page thereto or an Assignment
and Acceptance, as assignee (collectively, the "LENDERS") and Continental Waste
Industries, Inc., a Delaware corporation ("CWI"), together with its Subsidiaries
(as defined in the Agreement) (individually, any of said corporations may be
referred to herein as a "BORROWER," and collectively are sometimes referred to
as the "BORROWERS"). Terms defined in the Agreement and not otherwise defined
herein are used herein as therein defined.
B. This Assignment and Acceptance is made with reference to the
following facts:
(i) The Assignor is a Lender and, as such, presently holds a PRO
RATA share of the rights and obligations of Lenders under the
Agreement.
(ii) As of the Effective Date (as defined below), the aggregate
amount of the Commitments of Lenders under the Agreement is set forth
below:
Aggregate Amount
----------------
Letter of Credit Commitment $ 5,000,000*
Revolving Loan Commitment 45,000,000 less
Existing Letters of
Credit
Total Commitment $45,000,000
(iii) On the terms and conditions set forth below, the
Assignor desires to sell and assign to the Assignee, and the Assignee
desires to purchase and assume from the Assignor, on the Effective
Date (as defined below), that portion of the Assignor's rights and
obligations under the Agreement which is equal to 0.333333333 percent
("ASSIGNED PERCENTAGE") of the rights and obligations of all Lenders
under the Agreement as of
--------------------
* Equal to the lesser of $5,000,000 or the unused amount of the Total
Commitment.
the Effective Date and which shall constitute the Assignee's PRO RATA
share.
NOW, THEREFORE, the Assignor and the Assignee hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that portion of the
Assignor's rights and obligations under the Agreement equal to the Assigned
Percentage of (a) the Commitment as in effect as of the Effective Date, and (b)
that portion of each of the Revolving Loans and the Letters of Credit
outstanding on the Effective Date.
2. The Assignor represents and warrants that as of the Effective
Date and before giving effect to this Assignment (a) its PRO RATA share is 100
percent; (b) its PRO RATA share of the Commitment is $45,000,000; and (c) it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim. The Assignor
makes no representation or warranty and assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Agreement or any other Loan Document, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Agreement or
any other Loan Document or any other instrument or document furnished pursuant
thereto or any Collateral or (ii) the financial condition of any party to any of
the Loan Documents or the performance or observance by any party to any of the
Loan Documents of any of its obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto. Except for the
representations above, the sale, transfer and assignment of the interests
hereunder is made without warranty or recourse against the Assignor.
3. The Assignee (a) confirms that it has received a copy of the
Agreement, together with copies of such documents and financial and other
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (b) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Agreement; (c) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Agreement
and the other Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (d) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Agreement are required to be performed by it as a Lender; and
(e) specifies
-2-
as its address for notices the office set forth beneath its name on the
signature page hereof.
4. Following the execution of this Assignment and Acceptance, the
original hereof will be delivered to the Agent for approval and acceptance by
the Agent and a copy hereof will be delivered to Borrowers. The effective date
for this Assignment and Acceptance (the "EFFECTIVE DATE") shall be the later of
(a) June 6, 1995, or (b) the date on which this Assignment and Acceptance is
accepted by the Agent; PROVIDED, HOWEVER, that the Assignor may in its sole and
absolute discretion terminate this Assignment and Acceptance if the Effective
Date has not occurred within sixty (60) days following the execution hereof by
the Assignor and the Assignee.
5. Upon such approval and acceptance by the Agent, from and after
the Effective Date, (a) the Assignee shall be a party to the Agreement and have
the rights and obligations of a Lender thereunder and under the other Loan
Documents; and (b) the Assignor shall, to the extent of the interests of
Assignor assigned pursuant hereto, relinquish its rights and be released from
its obligations under the Agreement and the other Loan Documents.
6. Upon such approval and acceptance by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Agreement in
respect of the interest assigned hereby (including without limitation all
payments of principal, interest and fees with respect thereto) to the Assignee.
The Assignor and the Assignee shall make all appropriate adjustments in payments
under the Agreement for periods prior to the Effective Date directly between
themselves. Assignor shall pay to Assignee, on the Effective Date, a commitment
fee equal to $75,000.
7. The Borrowers shall issue new promissory notes payable to the
order of the Assignee in an amount equal to the Assignee's PRO RATA share of the
Commitment, and to the Assignor in an amount equal to the PRO RATA share of the
Commitment retained by the Assignor.
-3-
8. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS, OBLIGATIONS AND
LIABILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
ASSIGNOR:
LASALLE NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: First Vice President
ASSIGNEE:
BANK OF AMERICA ILLINOIS
By: /s/ Xxxxxx X. ?
-------------------------------------
Name: Xxxxxx X. ?
-----------------------------------
Title: Vice President
----------------------------------
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
000-000-0000 (Telephone)
000-000-0000 (Fax)
Accepted this 7th day of
June, 1995.
LASALLE NATIONAL BANK,
as Agent
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: First Vice President
-4-
Accepted this 2nd day of
June, 1995.
CONTINENTAL WASTE INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: XXXXXXX X. XXXXXX
-----------------------------------
Title: Executive V.P.
----------------------------------
-5-
