FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as
of June 14, 1996, 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
▇▇▇▇▇▇ Brothers, Inc., a Tennessee corporation, ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇ 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, WPP Services, Inc., an Ohio corporation, ASCO
Sanitation, Inc., a Mississippi corporation, ▇▇▇▇▇▇▇ Transfer, Inc., a Missouri
corporation, ▇▇▇▇▇▇▇▇ Refuse Co Inc, an Indiana corporation, Terre Haute
Recycling, Inc., an Indiana corporation, NationsWaste, Inc., a Delaware
corporation, Northeast Sanitary Landfill, Inc., a South Carolina corporation,
▇▇▇▇▇▇▇▇▇ Corporation of Orlando, a Florida corporation, and Holland Excavating,
Inc., a Florida 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, as amended by a First
Amendment to Credit Agreement dated June 6, 1995, a Second Amendment to Credit
Agreement dated October 5, 1995, and a Third Amendment to Credit Agreement dated
January 31, 1996 (as so amended, 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, the Borrowers have requested that the Lenders increase the
amount of the Commitment from $45,000,000 to $70,000,000 and make certain other
modifications to the Credit Agreement;
WHEREAS, the Lenders are willing to increase such Commitment and make
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.
-1-
2. Section 2.A.1. Revolving Loans. Sections 2.A.1. and 2.A.2 of the
Credit Agreement are hereby deleted in their entirety and replaced with the
following:
"2.A.1. Revolving Loans. Subject to the terms and conditions of this
Agreement, the Lenders agree to lend to the Borrowers from time to time until
the earlier of the Termination Date or the occurrence of either a Default or an
Event of Default hereunder (the earlier of such date being hereinafter referred
to as the "Expiration Date"), such sums, in a minimum amount(s) as set forth in
Section 3.B hereof, as Borrowers may request from time to time by a Borrowing
Notice pursuant to Section 3.C hereof; provided, however, that the aggregate
principal amount of all loans outstanding under this Section 2.A.1
(individually, a "Revolving Loan" or "Loan" or, collectively, the "Revolving
Loans" or "Loans") plus the Stated Amount of all letters of credit issued
pursuant to Section 2.B hereof (the "Letters of Credit") at any one time shall
not exceed Seventy Million Dollars ($70,000,000) (such amount hereinafter
referred to as the "Commitment" and/or cumulatively for all Lenders as the or
their "Commitments"). Each Borrowing of Loans shall be made ratably from the
Lenders in proportion to their respective Commitments. Subject to the terms and
conditions hereof, the Borrowers may borrow or repay and reborrow hereunder,
from the date hereof until the Expiration Date, either the full amount of the
Commitments or any lesser sum in the minimum amounts referred to herein. If, at
any time, the Loans plus the Stated Amount of outstanding Letters of Credit
exceed the Commitment, the Borrowers shall immediately notify the Agent of the
existence of and pay to the Agent the amount of such excess. The maximum amount
of the Commitment of each Lender, which is also the maximum amount of Loans
which each Lender agrees to extend to the Borrowers, shall be as set forth
opposite its name on the applicable signature page hereof (subject to any
reductions thereof pursuant to the terms hereof). For all purposes of this
Agreement, where a determination of the unused or available amount of the
Commitment is necessary, the Loans and the Letter of Credit Utilization shall be
deemed to utilize the Commitments. The obligations of the Lenders hereunder are
several and not joint and no Lender shall under any circumstances be obligated
to extend credit hereunder in excess of its Commitment.
"2.A.2. Revolving Notes. In order to evidence the Loans, concurrently
herewith, the Borrowers will execute and deliver promissory notes payable to the
order of each Lender in the principal amount of its Commitment, substantially in
the form of Exhibit A-1 hereto, with appropriate insertions (together with any
and all amendments, modifications, supplements, substitutions, renewals,
extensions and restatements, thereof and therefor, whether individually or
collectively, the "Revolving Note" or "Note" or the "Revolving Notes" or
"Notes"). The Loans and the Notes shall mature on the Termination Date and shall
bear and pay interest as set forth in Section 3 hereof."
3. Section 2.B(a) Letters of Credit. Section 2.B(a) of the Credit
Agreement is hereby deleted in its entirety and replaced by the following:
"(a) General Terms. Subject to all of the terms and conditions hereof,
the Commitment may be availed of in the form of Letters of Credit, provided that
the aggregate outstanding amount of Letter of Credit Utilization by the
Borrowers hereunder shall in no event exceed the lesser of (aa) the unused
amount of the Commitments or (bb) $15,000,000. The Letters of Credit shall be
issued by the Agent, but each Lender shall be obligated to reimburse the Agent
for a pro rata share of the amount of each draft drawn thereunder and,
accordingly, each Letter of Credit shall be deemed to utilize the Commitments of
all Lenders pro rata in accordance with the respective amounts thereof. For all
purposes of this Agreement, each Existing Letter of Credit shall be deemed to be
a Letter of Credit issued hereunder."
4. Section 8.A.1 Financial Covenants.
The following Section 8.A.1(f) is hereby added to the Credit
Agreement:
"(f) The Borrowers' Consolidated ratio of (a) interest-bearing debt to
(b) Stockholders' Equity plus interest-bearing debt, as determined as of the end
of each quarter of CWI's Fiscal Year, shall not be greater than 0.50:1."
- 2 -
5. Conditions.
5.A. Delivery of Documents as Conditions Precedent. The delivery by or
on behalf of the Borrowers of each of the following documents to the Agent, each
of which shall be satisfactory to the Agent in substance and form, shall
constitute separate and distinct conditions precedent to the effectiveness of
this Amendment:
5.A.1. A copy of this Amendment duly executed by Borrowers.
5.A.2. The Revolving Notes duly executed by the Borrowers.
5.A.3. A Reaffirmation of Environmental Indemnity Agreement in the form
attached hereto as Exhibit A-2 duly executed by the Borrowers.
5.A.4. A Reaffirmation of Security Agreement in the form attached
hereto as Exhibit A-3 duly executed by the Borrowers.
5.A.5. A Reaffirmation of Stock Pledge Agreement in the form of
Exhibit A-4 hereto duly executed by the Pledgors.
5.A.6. Certificate of Secretary of the Borrowers as to (I) resolutions
authorizing entry into, execution, delivery and performance of its obligations
under this Amendment and the Loan Agreement and related Loan Documents to which
it is a party, (ii) the incumbency and signatures of the officers authorized to
execute on its behalf the Loan Documents to which it is a party, and (iii) no
change in the Certificates of Incorporation and bylaws of the Borrowers provided
to Bank.
5.A.7. 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, which shall include but not be limited to modifications to the
Mortgages and date-down endorsements on existing title policies.
5.B. Facility Fee. The Borrowers shall pay to the Agent for the ratable
account of the Lenders a facility fee equal to $62,500 upon execution of this
Amendment, and an additional fee of $62,500 (the "Additional Fee") within 120
days of the date of this Amendment; provided, however, that Borrowers shall not
be required to pay the Additional Fee if, within 120 days of the date hereof,
Borrowers direct the Agent to permanently reduce the amount of the Commitment
from $70,000,000 to $45,000,000 (which Commitment shall be reduced ratably among
the Lenders), and Borrowers repay to the Lenders the aggregate principal amount
of the Loans and Letter of Credit Utilization then outstanding in excess of
$45,000,000, plus interest accrued thereon.
6. Representations; Warranties; Covenants.
6.A. 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.
- 3 -
6.B. Within 90 days of the date hereof, Borrowers shall deliver to
Lenders an opinion of outside legal counsel in form and substance acceptable to
Lenders and covering such items as Lenders shall request.
7. 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.
8. Governing Law; Successors and Assigns. This Amendment has been
executed, delivered and accepted in and shall be deemed 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.
9. 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.
10. 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.
11. 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.
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:______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ BROTHERS, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROTHERS WASTE, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BERRIEN COUNTY LANDFILL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BLUEGRASS RECYCLING & TRANSFER COMPANY
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
- 4 -
COMMERCIAL WASTE DISPOSAL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇▇ WASTE, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CWI OF ILLINOIS, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CWI OF MISSOURI, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CWI VENTURE, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FLL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
G.E.M. ENVIRONMENTAL MANAGEMENT INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GILA BEND REGIONAL LANDFILL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GREENFIELD ENVIRONMENTAL DEVELOPMENT CORP.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
JAMAX CORPORATION
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
KARAT CORP.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MIDWEST MATERIAL MANAGEMENT, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NORTHWEST TENNESSEE DISPOSAL CORPORATION
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ LANDFILL CORPORATION
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
- 5 -
▇▇▇▇▇ HOLLOW LANDFILL CORP.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SANIFILL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SOUTHERN ILLINOIS REGIONAL LANDFILL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SOUTH TRANS, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SPRINGFIELD ENVIRONMENTAL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SPRINGFIELD ENVIRONMENTAL, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TRIPLE G LANDFILLS, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
UNITED REFUSE CO., INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
VICTORY ENVIRONMENTAL SERVICES, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
VICTORY WASTE INCORPORATED
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WPP CONTINENTAL DE COSTA RICA S.A.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WPP SERVICES, INC.
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
- 6 -
ASCO SANITATION, INC.
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ TRANSFER, INC.
By:_______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ REFUSE CO INC
By:________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
TERRE HAUTE RECYCLING, INC.
By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
NATIONSWASTE, INC.
By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
NORTHEAST SANITARY LANDFILL, INC.
By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇▇ CORPORATION OF ORLANDO
By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
HOLLAND EXCAVATING, INC.
By:_________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
- 7 -
AGENT:
LASALLE NATIONAL BANK, as Agent
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
LENDERS:
LASALLE NATIONAL BANK
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Amount of Commitment: $23,333,333.34
THE FIRST ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Title:
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Amount of Commitment: $23,333,333.33
BANK OF AMERICA ILLINOIS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name:
Title:
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Amount of Commitment: $23,333,333.33
-8-