Exhibit 10.3
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT (this "First Amendment") is made and entered into as of the 2nd
day of February, 2000, by and among ▇▇▇▇▇▇▇ WASTE SYSTEMS, INC., a Delaware
corporation (the "Parent"), its Subsidiaries (other than Excluded Subsidiaries)
listed on SCHEDULE 1 to the Credit Agreement defined below (together with the
Parent, collectively the "Borrowers"), BANKBOSTON, N.A. ("BKB"), KEYBANK
NATIONAL ASSOCIATION ("Keybank"), BANK OF AMERICA, N.A. ("BOA"), COMERICA BANK,
LASALLE BANK NATIONAL ASSOCIATION, CREDIT LYONNAIS, FIRST VERMONT BANK AND TRUST
COMPANY, CIBC, INC. and CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC Canada"), a
Canadian chartered bank (acting in its individual capacity), and such banks or
other financial institutions which may become a party thereto (the "Banks"), BkB
as Administrative Agent for the Banks (the "Administrative Agent"), Keybank as
Documentation Agent, BOA as Syndication Agent and CIBC Canada as the Canadian
Agent (the "Canadian Agent", and together with the Administrative Agent, the
"Bank Agents").
WHEREAS, the Borrowers, the Banks and the Bank Agents are parties to an
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
December 14, 1999, (as amended and in effect from time to time, the "Credit
Agreement"), pursuant to which the Banks have extended credit to the Borrowers
on the terms set forth therein;
WHEREAS, the Borrowers have requested that the Banks and the Agent make
certain amendments to the Credit Agreement, and the Banks and the Agent are
willing to amend the Credit Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS TO SECTION 4A.6.1 OF THE CREDIT AGREEMENT. As of the
First Amendment Effective Date (as hereinafter defined), Section 4A.6.1 of the
Credit Agreement is hereby amended by deleting the subsections (a) and (b) in
their entirety and restating them as follows:
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"(a) To the extent that all or any portion of the Term Loan
bears interest during such Interest Period at the Base Rate, the Term
Loan or such portion thereof shall bear interest during such Interest
Period at the rate of 2.000% per annum (the "Term Loan Base Rate
Margin") above the Base Rate.
(b) At the option of the Domestic Borrowers, and upon notice
given to the Administrative Agent pursuant to Section 4A.6.2, so long
as no Default or Event of Default has occurred or is continuing, to
the extent that all or any portion of the Term Loan bears interest
during such Interest Period at the Eurodollar Rate, the Term Loan or
such portion shall bear interest during such Interest Period at the
rate of 3.500% per annum (the "Term Loan Eurodollar Margin") above the
Eurodollar Rate."
3. AMENDMENTS TO SECTION 5.1 OF THE CREDIT AGREEMENT. As of the First
Amendment Effective Date (as hereinafter defined), Section 5.1(a) of the Credit
Agreement is hereby amended by adding the words "and Section 4A.6.1" immediately
after the reference to Section 5.7 appearing therein.
4. AMENDMENTS TO SECTION 19 OF THE CREDIT AGREEMENT. As of the First
Amendment Effective Date (as hereinafter defined), Section 19 of the Credit
Agreement is hereby amended by deleting Section 19 in its entirety and restating
it as follows:
"Section 19. SYNDICATION AND PARTICIPATION. It is understood
and agreed that each Bank shall have the right to assign at any time
all or any portion of its Commitment (and interests in the risk
relating to any Revolving Credit Loans, outstanding Letters of Credit,
and Bankers' Acceptances) or its Term Loan Percentage of the Term
Loan, in an amount equal to or greater than $2,500,000 (or, if less,
in a minimum amount equal to all of such Bank's Commitment (and
interests in the risk relating to any Revolving Credit Loans,
outstanding Letters of Credit, and Bankers' Acceptances) or its Term
Loan Percentage of the Term Loan), to additional banks, other
financial institutions or other entities whose business is to purchase
and sell loan assets in the normal course acceptable to the
Administrative Agent or the Canadian Agent and, so long as no Event of
Default has occurred and is continuing, the Parent (unless an
assignment is to a Bank or to an affiliate of a Bank (so long as such
assignment would not result in increased costs to the Borrowers
hereunder), in which case acceptance by such Bank Agent and the Parent
shall not be necessary and no minimum assignment amount shall apply),
which acceptance shall not be unreasonably withheld, PROVIDED that a
Bank may assign all or a portion of its Canadian Commitment Percentage
and Canadian Loans outstanding, Canadian Letters of Credit and
Bankers' Acceptances, only to an Eligible Canadian Assignee, and that
each bank or other financial institution which executes and delivers
to the
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applicable Bank Agent and the Borrowers hereunder an Assignment and
Acceptance in the form attached hereto as Exhibit H.
Upon the execution and delivery of such Assignment and
Acceptance, (a) the Borrowers shall issue to the bank or other
financial institution applicable Notes in the amount of such bank's or
other financial institution's Domestic Commitment, portion of the Term
Loan or Canadian Commitment, as applicable, dated the Effective Date
or such other date as may be specified by the appropriate Bank Agent
and otherwise completed in substantially the form of the Notes
executed and delivered on the Effective Date; and (b) the assignee
bank or financial institution shall pay a processing and recordation
fee of $3,500 to the Administrative Agent. Each Bank shall also have
the right to grant participations to one or more banks, other
financial institutions or other entities whose business is to purchase
and sell loan assets in the normal course in or to all or any part of
any Loans owing to such Bank and the Note held by such Bank PROVIDED
that (i) any such sale or participation shall not affect the rights
and duties of the selling Bank hereunder to the Borrowers and (ii) the
only rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of
the Loan Documents shall be the rights to approve waivers, amendments
or modifications that would require consent by ALL Banks under Section
15.8, and any participant shall be entitled to the benefits of
Sections 5.5, 5.6, 5.9, 5.14 and 17 as if it were a Bank hereunder,
provided, however that no Borrower shall be required to pay any amount
which is greater than such amount that otherwise would have been
payable to the Bank which sold such participation. Notwithstanding the
foregoing, no syndication or assignment shall operate to increase the
Total Commitment or amount of the Term Loan hereunder or reduce the
Domestic Commitment or portion of the Term Loan of any Bank to an
amount less than $2,500,000 (or, if less, in a minimum amount equal to
all of such Bank's Commitment (and interests in the risk relating to
any Revolving Credit Loans, outstanding Letters of Credit, and
Bankers' Acceptances) or its Term Loan Percentage of the Term Loan),
or otherwise alter the substantive terms of this Agreement. Anything
contained in this Section 19 to the contrary notwithstanding, any Bank
may at any time pledge all or any portion of its interest and rights
under this Agreement (including all or any portion of its Notes) to
any of the twelve Federal Reserve Banks organized under Section 4 of
the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or the
enforcement thereof shall release the pledgor Bank from its
obligations hereunder or under any of the other Loan Documents.
On the date specified in any Assignment and Acceptance and
upon the satisfaction of the other conditions set forth in this
Section 19, such bank or financial institution shall become a party to
this Agreement and the other Loan Documents for all purposes of this
Agreement and the other Loan
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Documents, and its Commitment and/or portion of the Term Loan shall be
as set forth in the register of Banks (the "Register") maintained by
the Administrative Agent for the recordation of the names and
addresses of the Banks and the Commitment Percentage of, Term Loan
Percentage of, and principal amount of the Loans owing to and Letter
of Credit Participations purchased by, the Banks from time to time.
The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Bank Agents and the Banks may
treat each person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrowers and the Banks at
any reasonable time and from time to time upon reasonable prior
notice."
5. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This First Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this First Amendment.
6. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. EFFECTIVENESS. This First Amendment shall become effective (the
"First Amendment Effective Date") upon its execution and delivery by the
Required Banks and the Borrowers hereto.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this
First Amendment as of the date first set forth above.
BANKBOSTON, N.A.,
individually and as Administrative Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
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KEYBANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
COMERICA BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CIBC INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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LASALLE BANK NATIONAL
ASSOCIATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
FIRST VERMONT BANK AND TRUST
COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as
Canadian Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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DOMESTIC BORROWERS:
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ALL CYCLE WASTE, INC.
BRISTOL WASTE MANAGEMENT, INC.
CASELLA T.I.R.E.S., INC.
CASELLA TRANSPORTATION, INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT, INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT OF N.Y., INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT OF PENNSYLVANIA, INC.
▇▇▇▇▇▇▇ WASTE SYSTEMS, INC.
GRASSLANDS INC.
▇▇▇▇▇ C & D DISPOSAL, INC.
▇▇▇▇▇ HOLLOW REGENERATION CORP.
NATURAL ENVIRONMENTAL, INC.
NEWBURY WASTE MANAGEMENT, INC.
NEW ENGLAND WASTE SERVICES, INC.
NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC.
NEW ENGLAND WASTE SERVICES OF N.Y., INC.
NEW ENGLAND WASTE SERVICES OF VERMONT, INC.
NORTH COUNTRY ENVIRONMENTAL SERVICES, INC.
NORTHERN SANITATION, INC.
PINE TREE WASTE, INC.
RESOURCE RECOVERY OF CAPE COD, INC.
RESOURCE TRANSFER SERVICES, INC.
RESOURCE WASTE SYSTEMS, INC.
▇▇▇▇▇▇ ENVIRONMENTAL RECOVERY FACILITIES, INC.
▇▇▇▇▇▇ ENVIRONMENTAL SERVICES
▇▇▇▇▇▇▇ LANDFILL, INC.
SUNDERLAND WASTE MANAGEMENT, INC.
WASTE-STREAM INC.
WESTFIELD DISPOSAL SERVICE, INC.
▇▇▇▇▇▇▇ BROTHERS, INC.
By:
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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ADVANCED ENTERPRISES RECYCLING INC.
THE AFA GROUP, INC.
AFA PALLET, INC.
AGRO PRODUCTS, INC.
ALLIED EQUIPT. & SALES CORP., INC.
AMERICAN SUPPLIES SALES GROUP, INC.
ARTIC INC.
ATLANTIC TRANSPORTATION TECHNOLOGIES INC.
DATA DESTRUCTION SERVICES, INC.
FAIRFIELD COUNTY RECYCLING, INC.
FCR CAMDEN, INC.
FCR FLORIDA, INC.
FCR GEORGIA, INC.
FCR GREENSBORO, INC.
FCR GREENVILLE, INC.
FCR ▇▇▇▇▇▇, INC.
FCR PLASTICS, INC.
FCR REDEMPTION, INC.
FCR TENNESSEE, INC.
FCR VIRGINIA, INC.
FCR, INC.
KTI BIO FUELS, INC.
KTI ENERGY OF MARTINSVILLE, INC.
KTI ENERGY OF VIRGINIA, INC.
KTI ENVIRONMENTAL GROUP, INC.
KTI NEW JERSEY FIBERS, INC.
KTI OPERATIONS, INC.
KTI RECYCLING OF ILLINOIS, INC.
KTI RECYCLING OF NEW ENGLAND, INC.
KTI RECYCLING OF NEW JERSEY, INC.
KTI RECYCLING, INC.
KTI SPECIALTY WASTE SERVICES, INC.
KTI TRANSPORTATION SERVICES, INC.
KTI, INC.
MANNER RESINS, INC.
MECKLENBURG COUNTY RECYCLING, INC.
POWER SHIP TRANSPORT, INC.
TOTAL WASTE MANAGEMENT CORP.
U.S. FIBER, INC.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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PENOBSCOT ENERGY RECOVERY COMPANY, LIMITED PARTNERSHIP
By: ________________________, general partner
By:
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
PERC MANAGEMENT COMPANY, LIMITED PARTNERSHIP
By: ________________________, general partner
By:
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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K-C INTERNATIONAL, LTD.
By: ________________________, general partner
By:
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CANADIAN BORROWERS:
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KTI RECYCLING OF CANADA, INC.
1316991 ONTARIO, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer