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EXHIBIT 4.2
AMENDMENT AGREEMENT NO. 1 TO
CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this 11th day of
June, 1996, by and among REPUBLIC INDUSTRIES, INC., a Delaware corporation
(herein called the "Borrower"), NATIONSBANK NATIONAL ASSOCIATION (SOUTH) (the
"Agent") (successor by merger to NationsBank of Florida, National Association),
as Agent for the lenders (the "Lenders") party to the Credit Facilities and
Reimbursement Agreement dated December 19, 1995 among such Lenders, Borrower and
the Agent (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrower in the principal amount of up to $250,000,000 as evidenced by the
Notes (as defined in the Agreement) and to issue Letters of Credit for the
benefit of the Borrower; and
WHEREAS, as a condition to the making of the revolving loans pursuant
to the Agreement the Lenders have required that all Material Subsidiaries of the
Borrower guaranty payment of all Obligations of the Borrower arising under the
Agreement; and
WHEREAS, the Borrower has requested that certain provisions of the
Agreement be amended for the purpose, inter alia, of making acquisitions in
addition to those currently permitted by the Agreement, and the Agent and the
Lenders, subject to the terms and conditions hereof, are willing to make such
amendments, as provided herein;
NOW THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. Definitions. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. Amendments. Subject to the conditions hereof, the Agreement is
hereby amended, effective as of the date hereof, as follows:
(a) Two new definitions "Automobile Retailing Activities" and
"AutoNation" is hereby added to Section 1.01 immediately following the
definition of "Authorized Representative" which definitions shall read
as follows:
"Automobile Retailing Activities" means new and used
vehicle retailing, wholesaling, renting, leasing, financing,
servicing and related activities;
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"AutoNation" means AutoNation Incorporated, a
corporation organization under the laws of the State of
Florida and its subsidiaries;
(b) The definition of "Permitted Acquisition" in Section 1.01
is amended in its entirety, so that as amended it shall read as
follows:
"'Permitted Acquisition' means an acquisition of a
Person or the assets of a Person effected with the consent and
approval of the Board of Directors or other applicable
governing body of such Person and the duly obtained approval
of such shareholders or other holders of equity interests in
such Person as may be required to be obtained under applicable
law, the charter documents of or any shareholder agreements or
similar agreements pertaining to such Person, which Person
derives the majority of its revenues either (x) from service
or service related activities or engages in other business or
owns other assets which support or complement these service
revenues or (y) from Automobile Retailing Activities, provided
that (i) after giving effect to such acquisition no Default or
Event of Default exists hereunder and (ii) after giving effect
to such acquisition if the Person or assets so acquired shall
either be a material Subsidiary or owned by a Material
Subsidiary, such Subsidiary shall have complied in all
respects with Section 7.19;
(c) the definition of "Material Subsidiary" in Section 1.01 is
hereby amended by adding the following proviso at the end thereof:
" provided, however, that notwithstanding the foregoing, upon
the acquisition of AutoNation by the Borrower, AutoNation
shall at all times be deemed a Material Subsidiary;"
(d) Section 8.02 is hereby amended in its entirety so that as
amended it shall read as follows:
"8.02 Consolidated Fixed Charge Ratio. Permit at any
time the Consolidated Fixed Charge Ratio to be less than 1.50
to 1.00; provided, however, that for the period ending on or
prior to September 30, 1996 there shall be disregarded in
calculating the Consolidated Fixed Charge Ratio all Capital
Expenditures associated with Automobile Retailing Activities."
(e) Clause (iv) of Section 8.04 is hereby amended in its
entirety, so that amended it shall read as follows:
"(vi) secured Indebtedness in an aggregate
outstanding amount not to exceed at any time then percent
(10%) of Consolidated Total Capitalization;"
(f) Clause (iii) of Section 8.05 is hereby amended in its
entirety, so that as
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amended it shall read as follows:
"(iii) Liens on (x) property owned by the Borrower or
its Subsidiaries as of June 7, 1996 (other than Collateral, as
defined in the Loan Agreement between AutoNation and the
Borrower dated May 8, 1996) securing Indebtedness of up to
five percent (5%) of Consolidated Total Capitalization
permitted under Section 8.04(iv), and (y) property acquired
after June 7, 1996 (other than Collateral, as defined in the
Loan Agreement between AutoNation and the Borrower dated May
8, 1996) securing Indebtedness permitted under Section
8.04(iv); and"
(g) Clause (v) of Section 8.07 is hereby amended by adding the
following proviso at the end thereof:
"Notwithstanding the foregoing, in no event shall the
aggregate amount of loans and investments of cash and Capital
Expenditures associated with Automobile Retailing activities
by the Borrower and its Subsidiaries in any Person or in
assets of a Person engaged in or relating to the auto
retailing business exceed in the aggregate $250,000,000."
(h) Clause (vi) of Section 8.07 is hereby amended by inserting
the following proviso immediately preceding the period at the end
thereof:
"; provided, however, that in addition to the above the
Borrower and its Subsidiaries may have additional loans and
investments in AutoNation in an amount of ten percent (10%) of
Consolidated Shareholders' Equity, but in no event shall the
aggregate of loans and investments in AutoNation exceed twenty
five percent (25%) of Consolidated Shareholders' Equity;"
3. Subsidiary Consents. Each Subsidiary of the Borrower that has
delivered a Guaranty to the Agent has joined in the execution of this Amendment
Agreement for the purpose of (i) agreeing to the amendments to the Agreement and
(ii) confirming its guarantee of payment of all the Obligations.
4. Representations and Warranties. The Borrower hereby represents and
warrants that:
(a) The representations and warranties made by Borrower in
Article VI of the Agreement are true on and as of the date hereof
except that the financial statements referred to in Section 6.01(f)
shall be those most recently furnished to each Lender pursuant to
Section 7.01(a) and (b);
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the Borrower
received by each Lender under Section 7.01 thereof, other than
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changes in the ordinary course of business, none of which has
been a material adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
report of the Borrower and its Subsidiaries received by each Lender
under Section 7.01 thereof have not been, adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constitutes a
Default or an Event of Default on the part of the Borrower under the
Agreement, the Notes or any other Loan Document either immediately or
with the lapse of time or the giving of notice, or both.
5. Conditions. This Amendment Agreement shall become effective upon
satisfaction of all of the following conditions:
(i) The Borrower shall deliver or cause to be delivered to the
Agent, the following:
(a) fourteen (14) counterparts of this Amendment
Agreement duly executed by the Borrower and consented to by
each of the Subsidiaries;
(b) an opinion of counsel for the Borrower and its
Subsidiaries in form and content acceptable to the Agent; and
(c) such other instruments and documents as the Agent
may reasonably request;
(ii) the Agent shall receive the written consent to this
Amendment Agreement of the Required Lenders; and
(iii) all instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent and its counsel; the
Agent shall have received copies of all additional agreements,
instruments and documents which it may reasonably request in connection
therewith, including evidence of the authority of Borrower and its
Subsidiaries to enter into the transactions contemplated by this
Amendment Agreement, such documents, when appropriate, to be certified
by appropriate corporate or governmental authorities; and all
proceedings of the borrower and its Subsidiaries relating to the
matters provided for herein shall be satisfactory to the Agent and its
counsel.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding
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and agreement of the parties hereto in relation to the subject matter hereof and
supersedes any prior negotiations and agreements among the parties relative to
such subject matter. No promise, conditions, representation or warranty, express
or implied, not herein set forth shall bind any party hereto, and no one of them
has relied on any such promise, condition, representation or warranty. Each of
the parties hereto acknowledges that, except as in this Amendment Agreement
otherwise expressly stated, no representations, warranties or commitments,
express or implied, have been made by any other party to the other. None of the
terms or conditions of this Amendment Agreement may be changed, modified, waived
or canceled orally or otherwise, except by writing, signed by all the parties
hereto, specifying such change, modification, waiver or cancellation of such
terms or conditions, or of any proceeding or succeeding breach thereof.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
REPUBLIC INDUSTRIES, INC.
WITNESS:
By: /s/
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Name: Xxxxxxxxx Xxxxx
Title: Vice President and Treasurer
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GUARANTORS:
Absolute Systems, Inc.
All Service Refuse Company
Xxxxxxxx Solid Waste, Inc.
Arlington Disposal Company, Inc.
Assured Security Company
Astro Waste Services, Inc.
Bay County Development, Inc.
Bontana Aviation, Inc.
C.S.C. Disposal and Landfill, Inc.
CANA First Corporation
Cleveland Container Service, Inc.
D&L Waste, Inc.
EETL I, Inc.
East Bay Sanitation Service, Inc.
El Centro Sanitation Service, Co.
Enviro-Comp Services, Inc.
Envirocycle, Inc.
Environmental Specialists, Inc.
Xxxxxxx Container Co., Inc.
Xxxxxxx Waste Systems, Inc.
Xxxx-Vac Inc.
Florida Refuse Service, Inc.
GF/WWF, Inc.
Garbage Disposal Service, Inc.
Grand Prairie Disposal Company, Inc.
Gulf Coast Waste Service, Inc.
Xxxxxx Management Corporation
X.X. Xxxxxx Company, Inc.
JMN, Inc.
Xxxxx Security Systems, Inc.
Xxxxx Security Systems II, Inc.
Xxxxxxxx Environmental, Inc.
Living Earth Technology Co.
Medical Waste Services, Inc.
Midwest Sanitation Service, Inc.
Nine Mile Road, Inc.
Panego I, Inc.
By: /s/
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Name Xxxxxxxxx Xxxxx
Title: Treasurer and Assistant Secretary for
each of the above-name corporations
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Pepperhill Development Co., Inc.
RCLJ Construction, Inc.
R.E. Xxxxx Enterprises of Edinburg, Inc.
R.E. Xxxxx Enterprises of Texas, Inc.
Reliable Sanitation, Inc.
Republic Acquisition Company
Republic Finance Company
Republic Imperial Acquisition, Corp.
Republic/Xxxxx Landfill and Sanitation
Company
Republic Resources Company
Republic Solutions, Inc.
Republic Trademark Company
Republic Wabash Company
Republic Waste Management Company
Xxxxx Alarm of Birmingham, Inc.
Xxxxx Alarm of Cocoa, Inc.
Xxxxx Alarm of Charlotte, Inc.
Xxxxx Alarm of Ft. Xxxxx, Inc.
Xxxxx Alarm of Gainesville, Inc.
Xxxxx Alarm of Xxxxxx Beach, Inc.
Xxxxx Alarm of Lakeland, Inc.
Xxxxx Alarm of Nashville, Inc.
Xxxxx Alarm of Orlando, Inc.
Xxxxx Alarm of Sarasota, Inc.
Xxxxx Alarm of Savannah, Inc.
Xxxxx Alarm of St. Augustine, Inc.
Xxxxx Alarm of Tallahassee, Inc.
Xxxxx Alarm of Tampa Bay, Inc.
Xxxxx Alarm of West Palm Beach, Inc.
SeaBoard Waste Systems, Inc.
Southland Environmental Services, Inc.
Southland Maintenance Services, Inc.
Southland Recycling Services, Inc.
Southland Waste Systems of Jax, Inc.
Sunburst Sanitation Corporation
TATS Corporation of Jax, Inc.
Tos-It Service Company, Inc.
Trashaway Services, Inc.
Treasure Coast Refuse, Inc.
United Waste Service Corp.
By: /s/
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Name: Xxxxxxxxx Xxxxx
Title: Treasurer and Assistant Secretary for
each of the above-named corporation
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Wabash Valley Refuse Removal, Inc.
Waste Collection Services Corp.
Waste Handling Systems, Inc.
Xxx Tex Waste Services, Inc.
By: /s/
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Name: Xxxxxxxxx Xxxxx
Title: Treasurer and Assistant
Secretary for each of the
above-named corporations
Republic Waste Management I Limited Partnership
By: Republic Waste Management Co.,
its General Partner
By: /s/
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Name: Xxxxxxxxx Xxxxx
Title: Treasurer and Assistant Secretary
Wabash Valley Landfill Company Ltd.
By: Republic Acquisition Company,
its General Partner
By: /s/
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Name: Xxxxxxxxx Xxxxx
Title: Treasurer and Assistant Secretary
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NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Agent for the Lenders
By: /s/
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Name: Xxxx X. Xxxxxx
Title: Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Lender
By: /s/
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Name: Xxxx X. Xxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
as Co-Agent and a Lender
By: /s/
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/
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Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/
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Name: Xxxxxxxx X. Xxxx
Title: Vice President
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By: /s/
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Name: Xxxxxx Cannally
Title: Assistant Vice President
UNITED STATES NATIONAL BANK
OF OREGON
By: /s/
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
ABN AMRO North America, as agent
By:/s/
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Name: Xxxxxxx Lavifla
Title: Group Vice President and Director
By: /s/
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Name: Xxxxxxx Xxx Xxxxxx
Title: Vice President and Director
THE BANK OF NEW YORK
By: /s/
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Name: H. Xxxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXXXX BANK OF BROWARD COUNTY,
N.A.
By: /s/
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Name: Xxxxxxx Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/
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Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By: /s/
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Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signature
LTCB TRUST COMPANY
By: /s/
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Name: Xxxxxx Xxxxxx
Title: Executive Vice President
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