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Exhibit 10.2
AMENDMENT NO. 1 TO
FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
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This Amendment No. 1 (this "Amendment") to that certain Fourth
Amended and Restated Loan and Security Agreement (as hereinafter defined), is
dated as of this 31st day of July 1996 by and among Wastequip, Inc., an Ohio
corporation with its principal place of business and chief executive office at
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (the "Company"),
WQD, Inc., an Ohio corporation (f/k/a ▇▇▇▇▇▇▇▇, Inc., "WQD"), Cusco Fabricators,
Inc., an Ohio corporation ("Cusco"), Wastequip Manufacturing Company, an Ohio
corporation f/k/a Accurate Industries, Inc. ("WQMC"), the financial institutions
party hereto (the "Lenders"), and Sanwa Business Credit Corporation, a Delaware
corporation with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SBCC"), in its individual capacity as a Lender hereunder and as
Agent and Collateral Agent for the Lenders (the "Agent").
W I T N E S S E T H:
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WHEREAS, the Company, WQD, Cusco, WQMC, the Lenders and Agent
are parties to that certain Fourth Amended and Restated Loan Agreement dated as
of February 16, 1996 (the "Fourth Amended and Restated Loan And Security
Agreement" or the "Loan and Security Agreement");
WHEREAS, the parties hereto wish to amend the Loan and
Security Agreement in order (i) to permit the acquisition by WQMC of all of the
outstanding capital stock of May Distributing (as hereinafter defined) from
▇▇▇▇▇ ▇. May, Sr., pursuant to that certain Stock Purchase Agreement dated as of
July 31, 1996 (the "May Distributing Stock Purchase Agreement"), (ii) to permit
the merger of May Distributing with and into WQMC pursuant to that certain
Agreement of Merger dated as of July 31, 1996 by and between WQMC and May
Distributing (the "May Distributing Merger Agreement", such merger together with
the May Distributing Stock Purchase Agreement and any other transactions
contemplated by such agreements, the "May Distributing Acquisition
Transactions"), (iii) to amend and restate the WQMC Series A Term Loan under the
Loan and Security Agreement, and (iv) to amend and restate the Cusco Term Loan
under the Loan and Security Agreement;
WHEREAS, the Company acknowledges that, as the parent
corporation of each of the Borrowers and WQD, it will receive substantial direct
and indirect benefits by reason of this Agreement;
WHEREAS, each of the Borrowers and WQD acknowledges that it
will also receive substantial direct and indirect benefits by reason of this
Agreement, including, without limitation, by virtue of the various
interrelationships among the Borrowers and WQD.
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NOW THEREFORE, in consideration of the premises and the terms
and conditions contained herein, and of any loans or extensions of credit
heretofore, now or hereafter made to or for the benefit of the Borrowers by the
Agent and any Lender, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Fourth Amended and
Restated Loan and Security Agreement.
2. AMENDMENT TO LOAN AND SECURITY AGREEMENT. The parties
hereto agree to amend the Loan and Security Agreement as set forth in this
Section 2.
2.1 NEW DEFINITIONS. The following terms shall be added to
SECTION 1.1 of the Loan and Security Agreement and have the following meanings:
"MAY DISTRIBUTING" shall mean May Manufacturing and
Distributing Corp., a Colorado corporation.
"MAY DISTRIBUTING 7% CONVERTIBLE NOTE" shall mean that certain
7% unsecured, nonnegotiable, subordinated convertible promissory note of WQMC in
favor of ▇▇▇▇▇ ▇. May, Sr. in the original principal amount of $1,250,000 dated
as of July 31, 1996.
"MAY DISTRIBUTING 9% NONCONVERTIBLE NOTE" shall mean that
certain 9% unsecured, nonnegotiable promissory note of WQMC in favor of ▇▇▇▇▇ ▇.
May, Sr. in the original principal amount of $500,000 dated as of July 31, 1996.
"MAY DISTRIBUTING ACQUISITION" shall mean the acquisition of
all of the outstanding capital stock of May Distributing pursuant to the terms
of the May Distributing Stock Purchase Agreement and the concurrent merger of
May Distributing with and into WQMC pursuant to the May Distributing Merger
Agreement.
"MAY DISTRIBUTING ACQUISITION DOCUMENTS" shall mean the May
Distributing Stock Purchase Agreement, the May Distributing Merger Agreement,
the May Distributing Seller Notes, the Subordinated Notes Guaranty dated as of
July 31, 1996 made by WQMC in favor of ▇▇▇▇▇ ▇. May, Sr., and each schedule,
exhibit, document, agreement, instrument and certificate incorporated therein or
delivered in connection therewith.
"MAY DISTRIBUTING MERGER AGREEMENT" shall mean that certain
Agreement of Merger dated as of July 31, 1996 by and between WQMC and May
Distributing.
"MAY DISTRIBUTING SELLER NOTES" shall mean the May
Distributing 7% Convertible Note and the May Distributing 9% Nonconvertible
Note.
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"MAY DISTRIBUTING STOCK PURCHASE AGREEMENT" shall mean that
certain Stock Purchase Agreement dated as of July 31, 1996 by and between WQMC
and ▇▇▇▇▇ ▇. May, Sr.
2.2 NAME CHANGE OF LENDER. SCHEDULE 1.1 of the Loan and
Security Agreement is hereby amended by replacing each reference to "Society
National Bank" with a reference to "KeyBank National Association".
2.3 DEFINITION OF "ACQUISITION DOCUMENTS". The definition of
"Acquisition Documents" in SECTION 1.1 of the Loan and Security Agreement is
hereby deleted in its entirety and the following substituted in its stead:
"ACQUISITION DOCUMENTS" means collectively (i) the May Fab
Acquisition Agreement and any document or instrument executed in connection
therewith, (ii) the Accurate Acquisition Documents and (iii) the May
Distributing Acquisition Documents.
2.4 DEFINITION OF "SELLER SUBORDINATED NOTES". The definition
of "Seller Subordinated Notes" in SECTION 1.1 of the Loan and Security Agreement
is hereby deleted in its entirety and the following substituted in its stead:
"SELLER SUBORDINATED NOTES" shall mean those certain
Subordinated Promissory Notes dated March 4, 1991 in the aggregate original
principal amount of $1,650,000 made by IRS in favor of IRS Seller, the Accurate
Subordinated Note, the May Fab Seller Notes, the Teem Note and the May
Distributing Seller Notes.
2.5 DEFINITION OF "SUBORDINATED GUARANTEES". The definition of
"Subordinated Guarantees" in SECTION 1.1 of the Loan and Security Agreement is
hereby deleted in its entirety and the following substituted in its stead:
"SUBORDINATED GUARANTEES" shall mean that certain Subordinated
Guarantee dated March 4, 1991 made by the Company in favor of IRS Seller, that
certain Subordinated Guarantee dated October 28, 1992 made by the Company in
favor of Accurate Sellers, that certain Subordinated Note Guaranty dated as of
May 26, 1994 by the Company in favor of May Fab-OK, the Teem Guaranty and that
certain Subordinated Notes Guaranty dated as of July, 31, 1996 made by the
Company in favor of ▇▇▇▇▇ ▇. May, Sr.
2.6 AMENDMENT TO CUSCO TERM LOAN. SECTION 2.5(B)(II) of the
Loan and Security Agreement is hereby deleted in its entirety and the following
substituted in its stead:
(ii) The remaining aggregate principal balance of the Cusco
Term Loan shall be payable to the Agent for the benefit of Cusco
Lenders in 17 consecutive quarterly installments on each September 1,
December 1, March 1 and June 1 (each, a "Principal Payment Date")
commencing December 1, 1996 in the amount of Twenty One Thousand Nine
Hundred Twenty-One Dollars ($21,921) and on March 1, 2001 a final
installment of
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One Million, One Hundred Seventy-One Thousand, One Hundred Eighty-Five
Dollars ($1,171,185) or the then remaining outstanding balance of the
Cusco Term Loan; PROVIDED, HOWEVER, that if at the end of the Revolving
Loan Initial Term or any Revolving Loan Renewal Term, the Revolving
Loan Commitments have not been extended in accordance with the
provisions of SECTION 2.12, then notwithstanding the foregoing, the
then remaining outstanding principal balance of the Cusco Term Loan
shall be due and payable on the date of the expiration of the Revolving
Loan Commitments. Interest on the Cusco Term Loan shall continue to be
paid monthly as set forth herein.
2.7 AMENDMENT TO WQMC SERIES A TERM LOAN. SECTION 2.5(D)(II)
of the Loan and Security Agreement is hereby deleted in its entirety and the
following substituted in its stead:
(ii) The remaining aggregate principal balance of the WQMC
Series A Term Loan shall be payable to the Agent for the benefit of
WQMC Term A Lenders in 17 consecutive quarterly installments on each
Principal Payment Date commencing December 1, 1996 in the amount of
Nine Hundred Three Thousand, Seventy-Nine Dollars ($903,079) and on
March 1, 2001 a final installment of One Million, Six Hundred Three
Thousand, Eight Hundred Fifteen Dollars ($1,603,815) or the then
remaining outstanding balance of the WQMC Series A Term Loan; PROVIDED,
HOWEVER, that if at the end of the Revolving Loan Initial Term or any
Revolving Loan Renewal Term, the Revolving Loan Commitments have not
been extended in accordance with the provisions of SECTION 2.12, then
notwithstanding the foregoing, the then remaining outstanding principal
balance of the WQMC Series A Term Loan shall be due and payable on the
date of the expiration of the Revolving Loan Commitments. Interest on
the WQMC Series A Term Loan shall continue to be paid monthly as set
forth herein.
2.8 AMENDMENT TO PROVISION FOR MANDATORY PREPAYMENTS FROM
ASSET DISPOSITIONS. SECTION 2.10(B) of the Loan and Security Agreement is hereby
deleted in its entirety and the following substituted in its stead:
(b) PREPAYMENTS FROM ASSET DISPOSITIONS. Promptly upon receipt
by the Company or any Borrower of proceeds of any Asset Disposition,
which proceeds exceed $25,000 for any single transaction or series of
related transactions or which proceeds, when aggregated with all other
proceeds from Asset Dispositions received during the same fiscal year
exceed $100,000, the Company or such Borrower, as the case may be,
shall prepay the Loans in an amount equal to the net proceeds of such
Asset Disposition; PROVIDED, HOWEVER, that (i) in the case of net
proceeds from an Asset Disposition of Equipment by any Borrower other
than WQD, such Borrower may use such net proceeds to finance the
purchase of replacement equipment if (a) such Equipment is purchased in
connection with such Asset Disposition, (b) such Borrower delivers
within 90 days of receipt of such proceeds to the Agent written
evidence of the use of the proceeds for such purchase and (c) except as
otherwise permitted by subsection 8.1 hereof, all such replacement
Equipment purchased by such Borrower is free and clear of all liens,
claims and encumbrances, except for security
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interests in favor of the Agent for the benefit of the Lenders and (ii)
no prepayment is required with respect to the proceeds from the Toccoa
Purchase Note. For purposes of this subsection 2.10(b) only, any
receipt of proceeds of any Asset Disposition by WQD shall be deemed to
be received by the Company.
2.9 AMENDMENT TO COLLATERAL LOCATIONS EXHIBIT. EXHIBIT 3.11 of
the Loan and Security Agreement is hereby deleted in its entirety and EXHIBIT
3.11 attached hereto is substituted in its stead.
2.10 AMENDMENT TO MORTGAGED PROPERTIES EXHIBIT. EXHIBIT 3.17
of the Loan and Security Agreement is hereby deleted in its entirety and EXHIBIT
3.17 attached hereto is substituted in its stead.
2.11 AMENDMENT TO PERMITTED LIENS EXHIBIT. EXHIBIT 6.5 of the
Loan and Security Agreement is hereby deleted in its entirety and EXHIBIT 6.5
attached hereto is substituted in its stead.
2.12 AMENDMENT TO TRADE NAMES EXHIBIT. EXHIBIT 6.8-1 of the
Loan and Security Agreement is hereby deleted in its entirety and EXHIBIT 6.8-1
attached hereto is substituted in its stead.
2.13 AMENDMENT TO INTELLECTUAL PROPERTY EXHIBIT. EXHIBIT 6.18
of the Loan and Security Agreement is hereby deleted in its entirety and EXHIBIT
6.18 attached hereto is substituted in its stead.
2.14 AMENDMENT TO EMPLOYEE BENEFIT MATTERS EXHIBIT. EXHIBIT
6.19 of the Loan and Security Agreement is hereby deleted in its entirety and
EXHIBIT 6.19 attached hereto is substituted in its stead.
2.15 AMENDMENT TO NEGATIVE COVENANT RELATING TO INDEBTEDNESS
AND LIABILITIES. SECTION 8.2 of the Loan and Security Agreement shall be amended
by inserting the following clause (vi) immediately following the word
"Obligations" in the thirteenth line thereof:
"and (vi) Indebtedness incurred pursuant to the May Distributing
Seller Notes"
2.16 AMENDMENT TO NEGATIVE COVENANT RELATING TO
CONSOLIDATIONS, ACQUISITIONS. SECTION 8.3 of the Loan and Security Agreement is
hereby amended by inserting the following sentence at the conclusion of such
SECTION 8.3:
"Notwithstanding anything to the contrary in this SECTION 8.3, May
Distributing may merge with and into WQMC pursuant to the May
Distributing Merger Agreement."
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2.17 AMENDMENT TO NEGATIVE COVENANT RELATING TO PERMITTED
INVESTMENTS. SECTION 8.4 of the Loan and Security Agreement is hereby amended by
inserting the following sentence at the conclusion of such SECTION 8.4:
"Notwithstanding anything to the contrary in this SECTION 8.4, WQMC may
purchase all of the outstanding capital stock of May Distributing
pursuant to the May Distributing Stock Purchase Agreement, as long as
immediately thereafter May Distributing is merged with and into WQMC."
2.18 AMENDMENT TO PERMITTED GUARANTEES EXHIBIT. EXHIBIT 8.5 of
the Loan and Security Agreement is hereby deleted in its entirety and EXHIBIT
8.5 attached hereto is substituted in its stead.
2.19 AMENDMENT TO NEGATIVE COVENANT RELATING TO RESTRICTED
PAYMENTS SECTION 8.9(F) of the Loan and Security Agreement is hereby deleted in
its entirety and the following substituted in its stead:
(F) The Company and its Subsidiaries may make payments with
respect to the Subordinated Notes and the Seller Subordinated Notes as
required in accordance with the terms thereof, but only to the extent
required by and subject to the subordination provisions contained in
such notes or otherwise approved by the Agent.
2.20 AMENDMENT TO PROVISION RELATING TO THE AMENDMENT OF
CERTAIN DOCUMENTS. SECTION 8.11 of the Loan and Security Agreement is hereby
deleted in its entirety and the following substituted in its stead:
8.11 AMENDMENT TO CERTAIN DOCUMENTS. Except as
expressly permitted by subsection 8.3, none of the Company's or the
Borrowers' Certificates or Articles of Incorporation or Bylaws shall be
amended, nor shall any Loan Party change its fiscal year, nor shall any
Loan Party make any change in its subchapter C status under the
Internal Revenue Code of 1986, as amended. No Loan Party will agree to
any amendment, waiver or modification of any provision of the Seller
Subordinated Notes, the Subordinated Notes, the Junior Subordinated
Notes, the Acquisition Documents, the Allocation Agreement, the WQD
Asset Sale Agreement, the Toccoa Purchase Note, the LM Asset Purchase
Agreement, the Teem Asset Purchase Agreement, the May Distributing
Stock Purchase Agreement, or to waive any cause of action arising
therefrom or relating thereto. WQMC shall not agree to any amendment,
supplement or other modification of the Lease dated as of July 31, 1996
by and between ▇▇▇▇▇ ▇. May, Sr. and WQMC that would reduce the term,
materially increase the rent or otherwise would materially reduce or
impair WQMC's rights or increase WQMC's obligations under the lease
without the prior consent of Agent.
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3. CONSENT. Agent and the Lenders consent to an amendment to
the Subordinated Note Agreements in order to permit the May Distributing
Acquisition and the documents entered into therewith.
4. REPRESENTATIONS AND WARRANTIES.
4.1 REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES. In
order to induce SBCC and the Lenders to enter into this Amendment and to amend
the Loan and Security Agreement in the manner provided herein, the Company and
the Borrowers represent and warrant to SBCC and the Lenders that: (i) all of the
representations and warranties contained in the Loan and Security Agreement are
true and correct in all material respects as of the date hereof except to the
extent such representations and warranties relate to an earlier date, in which
case they are true as of such date, (ii) after giving effect to this Amendment,
no Default or Event of Default exists, (iii) the Company and each Borrower has
all requisite corporate power and authority to enter into this Amendment and the
Loan and Security Agreement as amended hereby and to perform its obligations
thereunder, (iv) the execution, delivery and performance of this Amendment and
the Loan and Security Agreement as amended hereby have been duly and effectively
authorized by all necessary corporate action on the part of the Company and each
Borrower, (v) the execution, delivery and performance of this Amendment and the
Loan and Security Agreement as amended hereby will not violate any charter,
by-law or contract provision, or any license, franchise or permit, law, statute,
regulation order or decree, (vi) the execution, delivery and performance of this
Amendment and the Loan and Security Agreement as amended hereby will not
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any of the Financing Agreements or Obligations of
the Company or any of the Borrowers, result in or require the creation of or
imposition of any lien, charge, security interest or encumbrance upon any of the
properties or assets of any Loan Party under any existing indenture, mortgage,
deed of trust, loan or credit agreement or other material agreement or
instrument to which such Loan Party is a party or by which such Loan Party or
any of its property may be bound or affected (other than liens created pursuant
to the Financing Agreements), (vii) no order, decree or judgment of or in any
court of competent jurisdiction makes the execution, delivery or performance of
this Amendment or the Loan and Security Agreement as amended hereby illegal and
no action, suit, or proceeding shall be pending or threatened or any
investigation by any governmental or regulatory authority shall have been
commenced which could result in any such order, decree or judgment, and (viii)
no authorization, consent, or approval of, or filing with, any public body or
authority of the United States or any State thereof which has not already been
made or obtained is required for the execution, delivery or performance of this
Amendment or the Loan and Security Agreement as amended hereby and no
authorization, consent or approval of any third party, which has not been
obtained, is required with respect thereto.
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4.2 REPRESENTATIONS AND WARRANTIES FROM THE MAY DISTRIBUTING
STOCK PURCHASE AGREEMENT; TERMS OF MAY DISTRIBUTING STOCK PURCHASE AGREEMENT.
(a) LOAN PARTY WARRANTIES. Each of the Company and WQMC
represents and warrants that each of the representations and warranties given by
such Loan Party in the May Distributing Stock Purchase Agreement is true and
correct in all material respects as of the date hereof and as of the Closing
Date, and such representations and warranties are hereby incorporated herein by
this reference as of such dates with the same effect as though set forth in
their entirety herein. No Loan Party is aware of any facts or circumstances
indicating that the representations and warranties given by ▇▇▇▇▇ ▇. May, Sr. in
the May Distributing Stock Purchase Agreement are not true and correct in all
material respects as of the date hereof.
(b) SURVIVAL. Notwithstanding anything in the May Distributing
Stock Purchase Agreement to the contrary, the representations and warranties of
the May Distributing Stock Purchase Agreement incorporated in this Amendment by
subsection 3.2(a) shall, solely for the purposes of this Amendment, survive the
execution and delivery of the May Distributing Stock Purchase Agreement and the
execution and delivery of this Amendment.
(c) ENFORCEABILITY. To the best knowledge of the Company, the
May Distributing Stock Purchase Agreement is in full force and effect and
constitutes the valid and binding obligation of ▇▇▇▇▇ ▇. May, Sr., enforceable
against ▇▇▇▇▇ ▇. May, Sr. in accordance with its terms subject to general
principles of equity, reorganization, insolvency, moratorium and similar laws
affecting creditor's rights generally. No waiver or amendment of any May
Distributing Stock Purchase Agreement provision has been executed by any Loan
Party except as expressly permitted herein or contemplated hereby other than
waivers not required to be in writing and given after the date hereof as to
immaterial matters.
(d) CLAIMS. As of the date hereof, there is no warranty or
indemnity claim pending by any Loan Party against ▇▇▇▇▇ ▇. May, Sr. pursuant to
the May Distributing Stock Purchase Agreement any other document executed in
connection therewith and to the best knowledge of the Loan Parties, no basis for
any such claim exists.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. As
conditions precedent to the effectiveness of this Amendment, the Agent shall
have received the following documents, in form and substance satisfactory to the
Agent, and all of the transactions contemplated by each such document shall have
been consummated or each condition contemplated by each such documents shall
have been satisfied:
(1) AGREEMENT. Six copies of this Agreement, duly
executed by the Company and each Borrower.
(2) SECURITY DOCUMENTS. The Loan Parties shall
deliver such amendments and/or reaffirmation of the Loan Documents as
Agent may request.
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(3) LEGAL OPINION(S). The legal opinion of ▇▇▇▇▇▇
Halter & ▇▇▇▇▇▇▇▇ counsel to the Company and each Borrower in form and
substance satisfactory to the Agent and its counsel and such opinions
of local counsel as Agent may request in form and substance
satisfactory to the Agent and its counsel.
(4) MAY DISTRIBUTING STOCK PURCHASE AGREEMENT. An
execution copy of the May Distributing Stock Purchase Agreement,
certified as true and correct by the Secretary or an Assistant
Secretary of the Company and copies of each document, letter or opinion
delivered in connection with the execution and delivery of the May
Distributing Stock Purchase Agreement and the closing of the
transactions contemplated thereby. In addition, all certificates,
opinions and letters delivered in connection with the May Distributing
Stock Purchase Agreement shall be accompanied by a written
authorization from the person delivering said certificate, opinion or
letter stating that Agent may rely on such document as though it were
addressed to it.
(5) ASSIGNMENT OF MAY DISTRIBUTING STOCK PURCHASE
AGREEMENT. An Assignment of Representations to Agent by WQMC of its
rights with respect to all representations and indemnities of ▇▇▇▇▇ ▇.
May in favor of WQMC or any other Loan Party under the May Distributing
Stock Purchase Agreement, acknowledged by ▇▇▇▇▇ ▇. May and any other
parties thereto.
(6) MAY DISTRIBUTING MERGER AGREEMENT. An execution
copy of the May Distributing Merger Agreement, certified as true and
correct by the Secretary or an Assistant Secretary of the Company and
copies of each document, letter or opinion delivered in connection with
the execution and delivery of the May Distributing Merger Agreement and
the closing of the transactions contemplated thereby. In addition, all
certificates, opinions and letters delivered in connection with the May
Distributing Merger Agreement shall be accompanied by a written
authorization from the person delivering said certificate, opinion or
letter stating that Agent may rely on such document as though it were
addressed to it.
(7) BOARD RESOLUTIONS. Certified copies of
resolutions of the board of directors (or, where authorized, an
executive committee thereof) of each Loan Party authorizing the
execution and delivery of and the consummation of the transactions
contemplated by this Agreement, the other Financing Agreements, and all
other documents or instruments to be executed and delivered in
conjunction herewith and therewith.
(8) INCUMBENCY CERTIFICATES. Incumbency certificates
with respect to the officers of each Loan Party executing the documents
referred to in this Section 4.
(9) UCC FILINGS. (i) Receipt of UCC financing
statements in form sufficient, such that when filed, they will perfect
the security interest of the Agent in the Collateral, to the extent not
previously perfected (ii) receipt of evidence of release of all liens
other than those listed on EXHIBIT 6.5 attached hereto.
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(10) REAL ESTATE DOCUMENTS.
(i) Fully executed counterparts of a leasehold
mortgage in form and substance satisfactory to Agent (a "Leasehold
Mortgage"), which Leasehold Mortgage shall cover such of the Real
Property identified as mortgaged in EXHIBIT 3.17 (the "Mortgaged
Property"), together with evidence that counterparts of the Leasehold
Mortgage have been delivered to the title insurance company insuring
the Lien of the Leasehold Mortgage for recording in all places to the
extent necessary or desirable, in the judgment of Agent, to create a
valid and enforceable first priority lien the Mortgaged Property in
favor of Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Lenders.
(ii) Mortgagee a title insurance policy issued by
title insurance satisfactory to Agent (the "Mortgage Policy") in amount
satisfactory to Agent and assuring Agent that the Mortgage is a valid
and enforceable first priority mortgage lien on the Mortgaged Property,
free and clear of all defects, encumbrances and other Liens except
Liens permitted hereby, and the Mortgage Policy shall be in form and
substance satisfactory to Agent and shall include, as appropriate, an
endorsement for future advances under this Agreement and the Notes and
for any other matter that Agent or the Required Lenders in their
discretion may request.
(iii) Fully executed Landlord Waiver.
(11) INTERCREDITOR AND SUBORDINATION AGREEMENT. Fully
executed counterparts of the Intercreditor and Subordination Agreement
dated as of July 31, 1996 by and among WQMC, Company, SBCC, as Agent,
and ▇▇▇▇▇ ▇. May, Sr.
(12) PAYOFF LETTER. Fully executed letter
satisfactory to SBCC from May Distributing's existing lender confirming
that all of May Distributing's obligations will be repaid in full from
the proceeds of the May Distributing Acquisition Transactions and all
Liens upon any of the property of May Distributing shall be terminated
and released immediately upon such payment.
(13) ENVIRONMENTAL REPORTS. Copies of all
environmental inspection, investigation or audit reports including
without limitation, any soil, surface water or ground water sampling
analysis, and any correspondence with, or submission to any federal,
state or local environmental agency for the past three years relating
to the assets acquired under the May Distributing Stock Purchase
Agreement.
(14) AMENDMENT TO SUBORDINATED NOTES AGREEMENTS. An
execution copy of that certain Consent Agreement with respect to the
Banc One Capital Partners Corporation Loan Agreement among Banc One
Capital Partners, L.P., an Ohio limited partnership and the successor
by merger to Banc One Capital Partners Corporation, the Company and
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WQMC, certified as true and correct by an officer of the Company
and an execution copy of that certain Consent Agreement with respect to
the Banc One Capital Partners II, Limited Partnership Loan Agreement
among BOCP II, Limited Liability Compay, an Ohio limited liability
company and the successor by merger to Banc One Capital Partners II,
the Company and WQMC, certified as true and correct by an officer of
the Company.
(15) OTHER DOCUMENTS. Such other documents as the
Agent may reasonably request.
(16) FEES. Receipt by SBCC of (i) an amendment fee in
the amount of $25,000 payable to SBCC for the ratable benefit of the
Lenders and (ii) an Agency fee as described in the SBCC fee letter.
6. CONDITIONS SUBSEQUENT TO THE AMENDMENT. As a condition subsequent to
the continued effectiveness of this Amendment, May Distributing shall merge with
and into WQMC and the Agent shall receive within five (5) Business Days after
the execution of this Amendment a Certificate of Merger from the Secretary of
State of Ohio evidencing such merger.
7. EFFECT OF AMENDMENT; NO WAIVER OF DEFAULTS. Execution of this
Amendment by SBCC shall not operate as a waiver of (i) any other right, power or
remedy of SBCC under the Loan and Security Agreement or any Financing Agreement
or (ii) any Default or Event of Default under such agreements whether existing
prior to or after the effectiveness hereof.
8. COSTS, EXPENSES AND TAXES; INDEMNITY. The provisions of subsection
2.16 of the Loan and Security Agreement are hereby incorporated by reference as
if fully set forth herein mutatis mutandis and made applicable to this
Amendment.
9. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. This Amendment
shall become effective as of the date first above written upon receipt by SBCC
of counterparts hereof duly executed by the Company, each Borrower and SBCC.
10. HEADINGS. Headings used in this Amendment are for convenience of
reference only and shall not affect the construction of this Amendment.
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11. REAFFIRMATION OF LOAN DOCUMENTS AND GUARANTEE.
(a) The parties hereto agree and acknowledge that nothing
contained in this Amendment in any manner or respect limits or terminates any of
the provisions of the Loan and Security Agreement or the Financing Agreements
other than as expressly set forth herein and further agree and acknowledge that
the Loan and Security Agreement and each of the Financing Agreements remain and
continue in full force and effect and are hereby ratified and reaffirmed in all
respects. No delay on the part of SBCC in exercising any of its respective
rights, remedies, powers and privileges under the Loan and Security Agreement or
any of the Financing Agreements or partial or single exercise thereof, shall
constitute a waiver thereof. None of the terms and conditions of this Amendment
may be changed, waived, modified or varied in any manner, whatsoever, except in
accordance with the Loan and Security Agreement.
(b) Without limiting the generality of the foregoing, the
Company and each Borrower acknowledges, ratifies and affirms that the Guarantee
set forth in Section 11 of the Loan and Security Agreement remains in full force
and effect notwithstanding the amendments contemplated hereby.
12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH ALL OF THE PROVISIONS OF THE ILLINOIS UNIFORM COMMERCIAL CODE
AND BY THE OTHER INTERNAL LAWS (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF ILLINOIS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
WASTEQUIP, INC. SANWA BUSINESS CREDIT
CORPORATION, individually and as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Its: Chief Financial Officer
---------------------------- Its: Vice President
--------------------------------
CUSCO FABRICATORS, INC.
▇▇▇▇▇▇ FINANCIAL, INC.,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Its: Chief Financial Officer
---------------------------- Its: Vice President
--------------------------------
WQD, INC.
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (f/k/a Society National Bank),
----------------------------- as Lender
Its: Vice President
----------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
WASTEQUIP MANUFACTURING Its: Vice President
COMPANY --------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Its: Chief Financial Officer
----------------------------
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