Exhibit 10.12
FIFTH AMENDMENT TO CREDIT AGREEMENT AND
AMENDMENT TO SECURITY DOCUMENTS
This FIFTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO SECURITY
DOCUMENTS (this "Amendment") dated as of March 31, 2001, is among (a) WASTE
INDUSTRIES, INC., a North Carolina corporation having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Old Parent"), and each of the subsidiaries of the Parent (the "Subsidiaries"
and together with the Old Parent, the "Existing Borrowers"), (b) FLEET NATIONAL
BANK, a national banking association having a place of business at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the other lending institutions listed
on the signature pages hereto (collectively, the "Banks"), (c) FLEET NATIONAL
BANK, as Administrative Agent for the Banks (the "Administrative Agent"), (d)
FLEET NATIONAL BANK, as Collateral Agent for the Banks and the Noteholders (as
defined below) (the "Collateral Agent"), and (e) BRANCH BANKING AND TRUST
COMPANY, as Documentation Agent for the Banks (the "Documentation Agent").
WHEREAS, the Existing Borrowers, the Banks, the Administrative Agent and
the Documentation Agent are parties to that certain Revolving Credit Agreement
dated as of November 9, 1999 (as amended, the "Credit Agreement");
WHEREAS, the Old Parent and The Prudential Insurance Company Of America,
Pruco Life Insurance Company, Pruco Life Insurance Company of New Jersey, U.S.
Private Placement Fund (collectively with any other noteholders who are or may
become parties, the "Noteholders") are parties to certain Purchase Agreements
(as defined in the Credit Agreement and as amended, restated and otherwise
modified through the date hereof, the "Purchase Agreements");
WHEREAS, the Existing Borrowers and the Collateral Agent are parties to
that certain Security Agreement dated as of November 9, 1999 (as amended, the
"Security Agreement");
WHEREAS, the Existing Borrowers have requested that the Administrative
Agent and the Majority Banks consent to a Reorganization (as defined below);
WHEREAS, in connection with the issuance of the ▇▇▇▇▇▇▇ County Bonds (as
defined in the Third Amendment to the Credit Agreement), the Old Parent has
requested to retain certain transfer rights in Designated Property (as defined
below) prior to an Event of Default;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Capitalized terms which are used herein without
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definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
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Section 2. Amendments to the Credit Agreement with Respect to the
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Reorganization
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(A) As of the Fifth Amendment Effective Date, the Preamble of the Credit
Agreement is hereby amended by deleting the Preamble in its entirety and
replacing it with the following New Preamble:
This REVOLVING CREDIT AGREEMENT is made as of November 9, 1999, by and
among (a) WASTE HOLDINGS, INC., a North Carolina corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Parent"), and each of the subsidiaries of the Parent (the
"Subsidiaries" and together with the Parent, the "Borrowers"), (b) FLEET
NATIONAL BANK, a national banking association having a place of business at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (acting in its individual capacity,
"Fleet"), and the other lending institutions listed on Schedule 1 (collectively,
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the "Banks"), (c) FLEET NATIONAL BANK, as Administrative Agent for the Banks,
(the "Administrative Agent"), and (d) Branch Banking AND Trust Company, as
Documentation Agent for the Banks (the "Documentation Agent").
(B) All references to "BKB" appearing in the Credit Agreement shall be replaced
with "Fleet"; and all references to Parent appearing in the Credit Agreement
shall be replaced with "Waste Holdings, Inc."
Section 3. Amendments to the Credit Agreement with Respect to the Bond
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Closing
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(A) As of the date of issuance of the ▇▇▇▇▇▇▇ County Bonds (the "Bond Closing
Date"), Section 1.1 of the Credit Agreement is hereby amended by inserting the
following new definitions in the appropriate alphabetical order:
"Designated Intellectual Property. Those patents, patent applications,
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trademarks, trademark applications, trade names, copyrights, copyright
applications, rights to ▇▇▇ and recover for past infringement of patents,
trademarks and copyrights, computer programs, computer software,
engineering drawings, service marks, customer lists, goodwill owned by
Waste Industries of Mississippi, LLC or Waste Industries Property Co, LLC
(each, an "IP Holder" and, collectively, the "IP Holders"), and all
licenses, permits (to the full extent such permits are assignable by law,
subject to regulatory approval if required, and pursuant to their terms),
agreements of any kind or nature pursuant to which one or both of the IP
Holders possesses, uses or has authority to possess or use property
(whether tangible or intangible) of others, or by which others hold the
right to possess, use or have authority to possess or use property (whether
tangible or intangible) of one or both of the IP Holders, and all recorded
data of any kind or nature, regardless of the medium of recording
including, without limitation, all software, writings, plans,
specifications and schematics of one or both of the IP Holders.
Designated Intercompany Debentures. Subordinated intercompany
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debentures held by Waste Services of Memphis, LLC, issued by a Borrower
which shall be in the form of Exhibit A hereto and which shall be pledged
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to the Collateral Agent.
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Designated LLCs. Waste Industries of Mississippi, LLC; Waste Services
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of Memphis, LLC; WasteCo, LLC; and Waste Services of Tennessee, LLC, each a
Delaware limited liability company, so long as such company is treated as a
corporation or partnership for federal tax purposes.
Designated Property. Includes (a) the applicable Borrower's ownership
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interests in the Designated LLCs; (b) annuity contracts; (c) Investments
held principally as a passive vehicle for the production of income held by
a Borrower, (d) the Designated Intercompany Debentures; (e) prior to its
conversion into an LLC, the stock of S&S Enterprises, Inc.; (f) the cash
and cash equivalents, overnight sweep investments (such as repurchase
agreements), and intercompany notes, loans and accounts payable of the
Borrowers; (g) that certain Senior Subordinated Note dated February 2, 1999
made by Liberty Waste Services, LLC (an entity not affiliated with the
Borrowers) in favor of Liberty Waste Lending Company, LLC in the maximum
principal amount of $11,538,000; and (h) the Designated Intellectual
Property.
Designated Property Notice Period. After the occurrence and
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continuation of a Default or an Event of Default, the period beginning
three days after the receipt by the Parent of written notice from the
Administrative Agent of its election to terminate the rights granted in
Section 7.12 hereof, and ending upon receipt by the Parent of written
notice that the Administrative Agent has elected to restore the rights
granted in Section 7.12 hereof.
Secured Obligations. Obligations, as defined in the Security
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Agreement."
(B) Section 6.16(b) of the Credit Agreement is hereby amended in relevant part
to read as follows:
"...and such shares, partnership interests and membership interests shall
at all times, except with respect to Permitted Transfers, be pledged to the
Collateral Agent for the benefit of the Banks and the Noteholders pursuant
to a Pledge Agreement."
(C) Section 7.1(c) of the Credit Agreement is hereby amended by deleting that
Section in its entirety and by adding the following New Section 7.1(c):
"Indebtedness of one Borrower (other than a Designated LLC) to another
Borrower (other than a Designated LLC);
(D) Section 7.1 of the Credit Agreement is hereby amended by adding the
following New Section 7.1(i):
"Indebtedness of the Borrowers to the Designated LLCs which is
evidenced by Designated Intercompany Debentures, in an aggregate amount not
to exceed $100,000,000."
(E) Section 7.1 of the Credit Agreement is hereby amended by adding the
following New Section 7.1(j):
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"Indebtedness of a Designated LLC to a Borrower, whether in the form
of intercompany payables, advances, notes or debentures, each of which is
pledged to the Collateral Agent, the proceeds of which are loaned or
contributed as capital to a direct or indirect Subsidiary of such
Designated LLC, which Subsidiary is a Borrower (and not a Designated LLC).
The aggregate amount of all such Indebtedness permitted under this Section
7.1(j) shall not exceed $100,000,000."
(F) Section 7.1 of the Credit Agreement is hereby amended by adding the
following New Section 7.1(k):
"Guaranty obligations of Parent with respect to undertakings by
▇▇▇▇▇▇▇ County Disposal, Inc. (or ▇▇▇▇▇▇▇ County Disposal, LLC as successor
to ▇▇▇▇▇▇▇ County Disposal, Inc.) under (i) the Remarketing and Interest
Services Agreement by and between ▇▇▇▇▇▇▇ County Disposal, Inc., Parent and
Wachovia Securities, Inc. and (ii) the Bond Purchase Agreement by and among
Wachovia Securities, Inc., The ▇▇▇▇▇▇▇ County Industrial Facilities and
Pollution Control Financing Authority, ▇▇▇▇▇▇▇ County Disposal, Inc. and
Parent."
(G) Section 7.3(g) of the Credit Agreement is hereby amended by deleting that
Section in its entirety and by adding the following New Section 7.3(g):
"(g) Investments consisting of loans and advances by any Borrower to
another Borrower (other than a Designated LLC);"
(H) Section 7.3 of the Credit Agreement is hereby amended by inserting the
following New Section 7.3(i):
"(i) Investments consisting of the applicable Borrower's ownership
interests in the Designated LLCs (and the related capital contributions in
respect thereof) as set forth in Schedule 7.3 and Investments in the
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Borrowers by the Designated LLCs constituting Indebtedness permitted under
Section 7.1."
(I) Section 7.4.2 of the Credit Agreement is hereby amended by inserting the
following clause immediately before the first sentence:
"Except in the case of a Permitted Transfer,"
(J) Section 7 of the Credit Agreement is hereby amended by adding the following
Section 7.12:
"7.12. Transfer Rights (a)Notwithstanding any provisions contained
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herein, transfers of Designated Property (each, a "Permitted Transfer" and
collectively, "Permitted Transfers") will be permitted while the ▇▇▇▇▇▇▇
County Bonds are issued and outstanding, provided, that the following
conditions are met:
(i) such Permitted Transfer is made for fair market value;
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(ii) the proceeds of such Permitted Transfer are applied to pay down
the outstanding Revolving Credit Loans (but without a permanent
reduction of the Total Commitment);
(iii)in the case of a transfer of the ownership interests in a
Designated LLC, the Designated LLC subject to such transfer shall
reaffirm its joint and several Obligations with respect to the
Secured Obligations by entering into a Guaranty Agreement in form
and substance satisfactory to the Administrative Agent and the
Noteholders (the "Designated Guaranty"); and
(iv) all assets of a transferred Designated LLC other than Designated
Property shall remain subject to the lien thereon that has been
granted to the Collateral Agent for the benefit of the Banks and
the Noteholders for the Secured Obligations, and both the
transferee of such Designated LLC and the Designated LLC shall
each have acknowledged the full force and effect of such lien and
Designated Guaranty executed by such Designated LLC pursuant to
(iii) above.
(b) In the event of a proposed Permitted Transfer of any membership
units or interests of a Designated LLC or any Designated Property, the
proposed transferor will give the Collateral Agent and the Administrative
Agent at least fifteen Business Days prior written notice of the proposed
Permitted Transfer. Subject to the Administrative Agent's election to
exercise its rights of first refusal as set forth below, the Collateral
Agent will, in accordance with Section 24 of the Security Agreement, and
within ten Business Days of receipt of such notice, endorse, assign and
deliver to the transferor the requested certificates, if any, of membership
units or ownership interests, or any other Designated Property in the
Collateral Agent's possession or under its control, which are included in
the Permitted Transfer by the transferor and any other instruments or
documents evidencing the ownership of such membership units or ownership
interest or Designated Property in the Collateral Agent's possession or
under its control, in accordance with Section 24 of the Security Agreement.
Upon receipt of the proceeds of the Permitted Transfer for application to
the Revolving Credit Loans (but without a permanent reduction of the Total
Commitment), the Collateral Agent, the Banks and the Noteholders shall have
no further interest or right to such membership units or interests or such
Designated Property, and, if requested by transferor or transferor's
transferee, the Collateral Agent (in accordance with Section 24 of the
Security Agreement) shall execute an appropriate termination of the lien
with respect to such units or interests, or such Designated Property, as
applicable; provided that any Designated LLC subject to a Permitted
Transfer shall retain its joint and several Obligations with respect to the
Secured Obligations by entering into a Designated Guaranty and the liens on
the assets of such Designated LLC (other than Designated Property) granted
to the Collateral Agent for the benefit of the Banks and the Noteholders
for the Secured Obligations shall continue in force and shall be reaffirmed
by the Designated LLC as a condition of the Permitted Transfer. To the
extent that, notwithstanding the above, any Permitted Transfer of
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membership units or ownership interests or Designated Property by a
Borrower occurs after the Designated Property Notice Period, the proceeds
shall be applied to pay the outstanding Secured Obligations and shall
permanently reduce the Commitment by the amount allocated to the Revolving
Credit Loans pursuant to the terms of the Intercreditor Agreement.
(c) After the beginning of the Designated Property Notice Period, the
provisions set forth in this Credit Agreement and Loan Documents allowing
the Permitted Transfers shall terminate, until such time, if ever, as
restored by the written election of the Administrative Agent.
(d) Right of First Refusal. If at any time following the date of this
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Amendment, the owner of Designated Property (the "Seller of Designated
Property") receives a bona fide offer from a third party to purchase all or
any part of the Designated Property for a purchase price that has been
reached through arms-length negotiation and the Seller of Designated
Property wishes to accept such offer (the "Third Party Offer"), that Seller
of Designated Property shall, as a condition precedent to his or her right
to sell such Designated Property to the third party, comply with the
following procedure:
1. By written notice (the "Notice of Sale of Designated Property"),
the Seller of Designated Property shall inform the Collateral
Agent of the Third Party Offer. The Notice must contain the name
of the offeror, a description of the Designated Property to be
sold, the purchase price, the proposed closing date (which shall
in no event be sooner than twenty Business Days from the date of
the Notice of Sale of Designated Property), all other terms and
conditions of the Third Party Offer and shall further contain an
offer to sell all of such Designated Property to the Collateral
Agent or its assign pursuant to the terms and provisions of this
Section 7.12(d) and on the same terms and conditions contained in
the Third Party Offer.
2. The Collateral Agent may elect, in accordance with Section 24 of
the Security Agreement, with the consent of the Majority Banks,
the Required Holders and the Administrative Agent, exercisable
within twenty Business Days of the receipt of the Notice of Sale
of Designated Property, to purchase all of such Designated
Property contained in the Third Party Offer. In addition, the
Collateral Agent, in accordance with Section 24 of the Security
Agreement, with the consent of the Majority Banks, the
Noteholders and the Administrative Agent, shall be entitled to
assign its right to purchase such Designated Property to one or
more third parties.
3. If the Collateral Agent shall elect to purchase all of such
Designated Property, it shall, in accordance with Section 24 of
the Security Agreement, deliver notice of the exercise of its
option to the Seller of Designated Property not later than the
expiration of the twentieth Business Day following receipt of the
Notice of Sale of Designated
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Property. In addition, if the Collateral Agent shall assign some
or all of its right to purchase such Designated Property to a
third party, it shall, in accordance with Section 24 of the
Security Agreement, deliver notice of such assignment, together
with notice of Designated Property to be purchased by such third
party, not later than the twentieth Business Day following
receipt of the Notice of Sale of Designated Property. Following
delivery of the Collateral Agent's (or the third party's) notice
of the exercise of the option granted herein to purchase such
Designated Property, the Collateral Agent (or such third party)
shall, in accordance with Section 24 of the Security Agreement,
set a closing date, which shall be not later than thirty days
following the delivery of the Collateral Agent's (or the third
party's) notice of exercise of right to purchase such Designated
Property.
4. To the extent that the Collateral Agent and its assigns shall not
elect to purchase all of such Designated Property, the Seller of
Designated Property shall thereafter be entitled to sell all of
such Designated Property upon the terms and conditions set forth
in the Notice of Sale of Designated Property. Any modification of
such terms and conditions shall require additional compliance
with the provisions of this Section 7.12(d).
(K) Section 12.1(o) of the Credit Agreement is hereby amended by inserting the
following new clause immediately after (i):
"except with respect to the applicable Designated LLC after a Permitted
Transfer,"
Section 4. Amendments to the Credit Agreement with Respect to the
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Covenants.
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(A) Section 1.1 of the Credit Agreement is hereby amended by amending the first
sentence of the second paragraph of the definition of Consolidated Earnings
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Before Interest, Taxes and Amortization or EBITA to read as follows:
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"For purposes of calculating the financial covenants set forth in Section 8
(other than Section 8.4), the Borrowers may include the EBITA for the prior
twelve (12) months of companies acquired by the Borrowers during the
respective reporting period (without duplication with respect to the
adjustments set forth above) only if (A) the financial statements of such
acquired Borrowers have been audited for the period sought to be included
by an independent accounting firm satisfactory to the Administrative Agent,
or (B) the Administrative Agent consents to such inclusion after being
furnished with other acceptable financial statements."
(B) Section 8.4 of the Credit Agreement is hereby amended by deleting that
Section in its entirety and inserting the following New Section 8.4:
"8.4 Interest Coverage.
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The Borrowers will not permit the ratio of (x) actual reported EBITA
to (y) Consolidated Total Interest Expense to be less than the ratio for
the quarters ending on or within the respective periods set forth in the
following table:
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Fiscal Quarters Ending Ratio
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March 31, 2001 through September 30, 2001 2.00:1.00
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December 31, 2001 2.25:1.00
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March 31, 2002 and thereafter 2.50:1.00
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(C) Section 8.6 of the Credit Agreement is hereby amended by deleting that
Section in its entirety and inserting the following New Section 8.6:
"8.6 Capital Expenditures.
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Capital Expenditures for any fiscal year shall not exceed (i)
$30,000,000 for the fiscal year 2001, and (ii) thereafter, 2.0 times the
sum of (a) actual depreciation expenses plus (b) amortization expense
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pertaining to landfills for such year."
(D) Section 7.4.1(j) of the Credit Agreement is hereby amended by adding
the following clause at the end of said Section 7.4.1(j):
"provided, however, from the Fifth Amendment Effective Date until the
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delivery by the Borrowers to each of the Banks of (i) the Compliance
Certificate for the fiscal quarter ending March 31, 2002 showing the
Borrower's compliance with the financial covenants contained in the Credit
Agreement, as amended, and (ii) the Borrowers' financial statements as
described in Section 6.4 of the Credit Agreement for the fiscal year ending
December 31, 2001, all references to "$15,000,000" in this Section 7.4.1
shall be replaced with "$5,000,000".
Section 5. Other Amendments to the Credit Agreement.
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Section 12.1 of the Credit Agreement is hereby amended by replacing the
following clause, located immediately after the listing of items 12.1(a) through
12.1(p):
"then, and in any such event, so long as the same may be continuing,"
with the following new clause:
"then, and in any such Event of Default, so long as the same may be
continuing,"
Section 6. Amendments to the Security Agreement.
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As of the date hereof, the Borrowers shall enter into an Amended and
Restated Security Agreement, in the form of Exhibit B attached hereto.
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Section 7. Amendments to the Membership Interest Pledge Agreements.
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(a) As of the date hereof, the following Existing Borrowers shall enter
into an Amended and Restated Membership Interest Pledge Agreement, in the form
of Exhibit C attached hereto:
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(i) Waste Holdings, Inc., pledging its membership interests in all of its
subsidiaries;
(ii) WasteCo, LLC, pledging its 1% membership interest in Waste Services of
Tennessee, LLC; and
(iii) Waste Industries of Mississippi, LLC, pledging its 99% membership
interest in Waste Services of Tennessee, LLC, and its 100% membership
interest in each of Railroad Avenue Disposal, LLC, Old Kings Road
Solid Waste, LLC and Waste Industries Property Co., LLC.
(b) As of the Bond Closing Date, each Membership Interest Pledge Agreement
other than those listed in paragraph (a) above is hereby amended by adding the
following new section 4.5:
"4.5 Designated LLCs. Subject to the procedures set forth below, the
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Pledgor shall at any time prior to the commencement of the Designated
Property Notice Period have the right to make Permitted Transfers of any or
all of the outstanding membership units or interests in each of the
Designated LLCs, provided that the provisions of Section 7.12 of the Credit
Agreement and paragraphs 6E(3) and 6E(4) of the Purchase Agreements are met
with respect thereto. In the event of a proposed Permitted Transfer of any
membership units or interests of a Designated LLC or any Designated
Property, the Pledgor will give the Collateral Agent at least twenty
Business Days prior written notice of the proposed Permitted Transfer.
Subject to the Collateral Agent's election to exercise its right of first
refusal as set forth in Section 7.12(d) of the Credit Agreement paragraph
6E(4) of the Purchase Agreements, the Collateral Agent will, within ten
Business Days of receipt of such notice, endorse, assign and deliver to the
Pledgor the requested certificates, if any, of membership units or
ownership interests, or any other Designated Property in the Collateral
Agent's possession or under its control, which are included in the
Permitted Transfer by the Pledgor and any other instruments or documents
evidencing the ownership of such membership units or ownership interest or
Designated Property in the Collateral Agent's possession or under its
control. Upon receipt of the proceeds of the Permitted Transfer for
application to the Revolving Credit Loans (but without a permanent
reduction of the Total Commitment), the Collateral Agent, the Banks and the
Noteholders shall have no further interest or right to such membership
units or interests or such Designated Property and, if requested by Pledgor
or Pledgor's transferee, shall execute an appropriate termination of the
lien with respect to such units or interests, or such Designated Property,
as applicable; provided that any Designated LLC subject to a Permitted
Transfer shall retain its joint and several Obligations with respect to the
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Secured Obligations by entering into a Designated Guaranty and the liens on
the assets of such Designated LLC (other than Designated Property) granted
to the Collateral Agent for the benefit of the Banks and the Noteholders
for the Secured Obligations shall continue in force and shall be reaffirmed
by the Designated LLC as a condition of the Permitted Transfer. To the
extent that notwithstanding the above, any Permitted Transfer by the
Pledgor of membership units or ownership interests or Designated Property
occurs during a Designated Property Notice Period, the proceeds shall be
applied to pay the outstanding Secured Obligations and shall permanently
reduce the Commitment by the amount allocated to the Revolving Credit Loans
pursuant to the terms of the Intercreditor Agreement."
Section 8. Amendments to the Stock Pledge Agreement.
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As of the date hereof, Waste Holdings, Inc. shall enter into a Stock Pledge
Agreement, in the form of Exhibit D attached hereto.
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Section 9. Consent and Waiver under the Credit Agreement.
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(a) The Old Parent has advised the Administrative Agent, the Banks and the
Noteholders that it (along with its Subsidiaries) will be reorganized as
described in Schedule 7.4 hereto (the "Reorganization") on or about March 31,
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2001. In the Reorganization, the Old Parent will be merged into a subsidiary of
Waste Holdings, Inc., and Waste Holdings Inc. will become the Parent of the
Subsidiaries.
(b) To allow the reorganization, and subject to the satisfaction of the
conditions contained in Section 12 hereof, the Administrative Agent and the
Majority Banks hereby waive the provisions of Sections 6.5 and 7.4.1 of the
Credit Agreement to allow the Reorganization on the conditions that:
(i) the terms and conditions of the Reorganization shall be substantially
those set forth in Paragraph 9(a) above;
(ii) the Old Parent shall deliver to the Administrative Agent the consent
of the Noteholders (the "Prudential Consent") and the shareholders of
the Old Parent to the Reorganization;
(iii) simultaneously with or prior to the closing of the Reorganization,
the Existing Borrowers shall enter into
(A) an amended and restated Security Agreement;
(B) a Membership Interest Pledge Agreement pledging all
membership interests in any of the Subsidiaries held by
Waste Holdings, Inc., if such Subsidiary is a limited
liability company;
(C) a Stock Pledge Agreement pledging all stock in any corporate
Subsidiary held by Waste Holdings, Inc.;
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(D) an Intercompany Subordination Agreement, subordinating the
Designated Intercompany Debentures to the Obligations (as
defined in the Security Agreement); and
(E) Amended and Restated Promissory Notes and an Amended and
Restated Swing Line Note, executed by all of the Borrowers.
Section 10. Affirmation and Acknowledgment.
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The Existing Borrowers hereby ratify and confirm all of their Obligations
to the Banks, including, without limitation, the Revolving Credit Loans, the
Notes and the other Loan Documents, and the Existing Borrowers hereby affirm
their absolute and unconditional promise to pay to the Banks all Obligations
under the Credit Agreement. Such Existing Borrowers hereby confirm that the
Secured Obligations are and shall remain secured pursuant to the Security
Documents and pursuant to all other instruments and documents executed and
delivered by such Existing Borrowers as security for the Secured Obligations and
that the Collateral Agent's security interests and liens on the Collateral (as
defined in the Security Agreement) shall remain in full force and effect not
withstanding the Reorganization.
Section 11. Representations and Warranties.
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Each of the Existing Borrowers hereby represents and warrants to the Banks
as follows:
1. that the representations and warranties contained in Section 5 of the
Credit Agreement are true and correct at and as of the date made and
as of the date hereof, except to the extent of changes resulting from
transactions contemplated by the Reorganization or permitted by the
Credit Agreement, this Amendment and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in
the aggregate are not materially adverse, or to the extent that such
representations and warranties relate expressly to an earlier date.
2. that, taking into account the effects of this Amendment, on the
closing date of the Reorganization, no Default or Event of Default has
occurred and is continuing, and consummation of the Reorganization
will not otherwise create a Default or an Event of Default;
3. The execution and delivery by the Existing Borrowers of this Amendment
and the performance by the Existing Borrowers of all of their
agreements and obligations under this Amendment and the Credit
Agreement and the other Loan Documents as amended hereby (i) are
within the authority of each of the Existing Borrowers, (ii) have been
duly authorized by all necessary proceedings or actions by each of the
Existing Borrowers, (iii) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation
to which the Existing Borrowers are subject or any judgment, order,
writ, injunction, license or permit applicable to the Existing
Borrowers, and (iv) do not conflict with
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any provision of the charter, by-laws or any agreement or other
instrument binding upon any of the Existing Borrowers;
4. This Amendment, and the Credit Agreement as amended hereby, and the
other Loan Documents to which each of the Existing Borrowers is a
party constitute the legal, valid and binding obligations of each of
the Existing Borrowers (as the case may be) enforceable against each
such Person in accordance with their respective terms;
5. that the Existing Borrowers are in current compliance with and after
giving effect to the Reorganization (including any borrowings made or
to be made in connection therewith), and to the extent that such
Existing Borrowers survive the Reorganization, will continue to be in
compliance with all of the covenants in Section 8 of the Credit
Agreement on a pro forma historical combined basis as if the
Reorganization occurred on the first day of the period of measurement;
and
6. that, taking into account the effects of this Amendment, no Material
Adverse Effect will result from the consummation of the
Reorganization.
Section 12. Effectiveness.
-------------
(a) With the exception of Sections 3, 6, 7 and 8 hereof, this Amendment
shall be effective upon the occurrence of the following (the "Fifth Amendment
Effective Date"):
(i) receipt by the Administrative Agent of this Amendment signed by the
Existing Borrowers, the Administrative Agent and the Majority Banks;
(ii) receipt by the Administrative Agent of the Prudential Consent signed
by each Noteholder;
(iii) receipt by the Administrative Agent of evidence of proper
authorization by the Borrowers of this Amendment and the Reorganization;
(iv) the consummation of the Reorganization;
(v) a copy of conforming amendments to the Purchase Agreements;
(vi) an amendment fee, payable to each Bank executing this Amendment, in
the amount of 0.05% of the applicable Bank's Total Commitment (the
"Amendment Fee"), provided, that each Bank executing this Amendment must
--------
have returned a copy of its original executed counterpart of this Amendment
to the Administrative Agent, via facsimile, by 5:00 P.M. on March 30, 2001
in order to be entitled to the Amendment Fee;
(vii) receipt by the Collateral Agent of the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇ LLP addressed to the Collateral Agent regarding the
Reorganization, the Collateral Agent's rights in the Collateral, the valid
formation of the Existing
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Borrowers and the due authority of the Existing Borrowers to execute the
Loan Documents, as well as such other matters as reasonably requested by
the Collateral Agent and other opinions as the Collateral Agent may
reasonably request;
(viii) an updated Schedule 5.17 to the Credit Agreement;
(ix) receipt by the Administrative Agent of all filings, recordings,
deliveries of instruments and other actions necessary or desirable in the
opinion of the Administrative Agent to effect, protect and preserve a
legal, valid and enforceable first priority (except for Permitted Liens)
security interest in and lien upon the Collateral shall have been duly
taken. The Administrative Agent shall have received evidence thereof in
form and substance satisfactory to the Administrative Agent; and
(x) receipt by the Administrative Agent of all such other closing documents
as reasonably requested by the Administrative Agent.
(b) Sections 3, 6, 7 and 8 of this Amendment shall become effective upon:
(i) the Bond Closing Date; and
(ii) the pledge and delivery of the Intercompany Debentures to the
Collateral Agent.
Section 13. Costs and Expenses.
------------------
The Borrowers acknowledge and agree that the reasonable costs and expenses
incurred by the Administrative Agent (including attorneys' fees) in the
preparation, negotiation and execution of this Amendment and the other documents
and instruments contemplated hereby are for the account of the Borrowers as
provided in Section 15 of the Credit Agreement.
Section 14. Miscellaneous Provisions.
------------------------
(a) The consents and waivers granted herein are limited strictly to their
terms, shall apply only to the specific transactions described herein, shall not
extend to or affect any of the Borrowers' Obligations contained in the Credit
Agreement, the other Loan Documents and shall not impair any rights consequent
thereon. The Administrative Agent and the Banks shall not have any obligation to
issue any further consent with respect to the subject matter of this Amendment
or any other matter. Except as expressly set forth herein, nothing contained
herein shall be deemed to be a waiver of, or shall in any way impair or
prejudice, any rights of the Administrative Agent or the Banks under the Credit
Agreement or the other Loan Documents.
(b) THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT UNDER SEAL UNDER THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE GOVERNED
BY, AND CONSTRUED ACCORDING TO, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
(c) This Amendment may be executed in any number of counterparts, but all
such counterparts shall together constitute but one instrument. In making proof
of this
-14-
Amendment it shall not be necessary to produce or account for more than one
counterpart signed by each party hereto by and against which enforcement hereof
is sought.
(d) Headings or captions used in this Amendment are for convenience of
reference only and shall not define or limit the provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
WASTE INDUSTRIES, INC.
By:
-------------------------------------
Name:
Title:
DUPLIN COUNTY DISPOSAL, LLC
VAN BUREN COUNTY LANDFILL, LLC
WASTE INDUSTRIES LANDCO, LLC
WASTE SERVICES OF NORTH CAROLINA,
LLC
NORTH MECKLENBURG SANITATION, LLC
ECO SERVICES, LLC
SOUTHERN WASTE SERVICES OF
MISSISSIPPI, LLC
QUICK-WAY SALVAGE, LLC
KABCO OF NORTH CAROLINA, LLC
WI-ACS, LLC
RELIABLE TRASH SERVICE, LLC
SOUTHERN WASTE OF ALABAMA, LLC
WASTE INDUSTRIES OF MISSISSIPPI, LLC
WASTE SERVICES OF MEMPHIS, LLC
WASTECO, LLC
LAURENS COUNTY LANDFILL, LLC
S & S ENTERPRISES OF MISSISSIPPI, LLC
▇▇▇▇▇▇▇ COUNTY DISPOSAL MERGECO,
LLC
By: Waste Industries, Inc.,
its Manager
By:
---------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MANAGEMENT, LLC
SHAMROCK ENVIRONMENTAL SERVICES, LLC
TRANSWASTE SERVICES, LLC
By:
------------------------------------
Name:
Title:
S. & S. ENTERPRISES, INC.
▇▇▇▇▇▇▇ COUNTY DISPOSAL, INC.
RAILROAD AVENUE DISPOSAL, INC.
By:
------------------------------------
Name:
Title:
OLD KINGS ROAD SOLID WASTE, LLC
WASTE INDUSTRIES PROPERTY CO., LLC
RAILROAD AVENUE DISPOSAL, LLC
By: Waste Industries of Mississippi, LLC,
its Manager
By: Waste Industries, Inc.,
its Manager
By:
-----------------------------------------
Name:
Title:
LIBERTY WASTE LENDING COMPANY, LLC
By: Waste Services of Memphis, LLC,
its Manager
By: Waste Industries, Inc.,
its Manager
By:
----------------------------------
Name:
Title:
-17-
WASTE SERVICES OF TENNESSEE, LLC
By: WasteCo, LLC
its Manager
By: Waste Industries, Inc.,
its Manager
By:
--------------------------
Name:
Title:
WASTE INDUSTRIES OF TENNESSEE, LLC
By: Waste Services of Tennessee, LLC,
its Manager
By: WasteCo, LLC,
its Manager
By: Waste Industries, Inc.,
its Manager
By:
----------------------
Name:
Title:
WASTE SERVICES OF DECATUR, LLC
By: Waste Industries of Tennessee, LLC,
its Manager
By: Waste Services of Tennessee, LLC,
its Manager
By: WasteCo, LLC,
its Manager
By: Waste Industries, Inc.,
its Manager
By:
------------------------
Name:
Title:
-18-
WASTE HOLDINGS, INC.
By:
-----------------------------------------
Name:
Title:
WASTE INDUSTRIES MERGECO, LLC
By: Waste Holdings, Inc.,
its Manager
By:
-------------------------------
Name:
Title:
-19-
AGENTS AND BANKS
----------------
FLEET NATIONAL BANK, individually and as
Administrative Agent
By:
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director
BRANCH BANKING AND TRUST COMPANY,
individually and as Documentation Agent
By:
-----------------------------------------
Name:
COMERICA BANK
By:
-----------------------------------------
Name:
WACHOVIA BANK, N.A.
By:
-----------------------------------------
Name:
FIRST UNION NATIONAL BANK
By:
-----------------------------------------
Name:
CITIZENS BANK OF MASSACHUSETTS (as
successor to USTRUST)
By:
-----------------------------------------
Name:
-20-
CENTURA BANK
By:
-----------------------------------------
Name:
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By:
-----------------------------------------
Name:
By:
-----------------------------------------
Name:
-21-
NOTEHOLDERS
(for the purposes of Sections 6, 7 and 8 only)
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:
-----------------------------------------------
Title: Vice President
PRUCO LIFE INSURANCE COMPANY
By:
-----------------------------------------------
Title: Vice President
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
By:
-----------------------------------------------
Title: Vice President
U.S. PRIVATE PLACEMENT FUND
By: Prudential Private Placement Investors, L.P.,
As Investment Advisor,
by Prudential Private Placement
Investments, Inc., as its general partner
By:
-----------------------------------------------
Title: Vice President
