Exhibit 10.63
THIRD AMENDMENT TO LOAN AGREEMENT{PRIVATE}
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THIS THIRD AMENDMENT TO LOAN AGREEMENT, dated as of December 31, 1996
(this "Amendment"), is between AMERICAN WASTE SERVICES, INC., an Ohio
corporation (the "Company"), the banks set forth on the signature pages hereof
(collectively, the "Banks") and NBD BANK, formerly known as NBD Bank, N.A., as
agent for the Banks (in such capacity, the "Agent").
RECITALS
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A. The Company, the Banks and the Agent are parties to a
Loan Agreement, dated as of December 23, 1994, as amended by a First Amendment
to Loan Agreement dated as of October 19, 1995 and a Second Amendment to Credit
Agreement dated as of February 19, 1996 (as now and hereafter amended, the "Loan
Agreement"), pursuant to which the Banks agreed, subject to the terms and
conditions thereof, to extend credit to the Company.
B. The Company has requested that the Agent and the Banks amend
certain terms and provisions of the Loan Agreement and the Agent and the Banks
are willing to do so strictly in accordance with the terms hereof.
TERMS
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In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1.
AMENDMENTS
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Upon fulfillment of the conditions set forth in Article 3 hereof, the
Loan Agreement shall be amended as follows:
1.1 Section 1.1 shall be amended as follows:
(a) The definition of "Applicable Floating Rate Margin" shall
be amended by deleting "37.5 basis points" and inserting "0 basis points" in
place thereof.
(b) The definition of "Maturity Date" shall be amended by
deleting the reference therein to "Effective Date" and inserting "Third
Amendment Effective Date" in place thereof.
(c) The definition of "Termination Date" shall be amended by
deleting the reference to "three (3) years from the Effective Date" and
inserting "December 31, 2000".
(d) A new definition of "Third Amendment Effective Date" shall
be added in appropriate alphabetical order as set forth below:
"Third Amendment Effective Date" shall mean December 31, 1996.
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1.2 Section 2.1(b) shall be amended by deleting the reference to
"$10,000,000" and inserting "$13,000,000" in place thereof.
1.3 Section 2.3(a) shall be amended by deleting "five-eighths of one
percent (5/8 of 1%)" and inserting "three-eighths of one percent (3/8 of 1%)".
1.4 Section 2.9 shall be deleted and the following shall be inserted
in place thereof:
2.9 Minimum Amounts. Except for Advances which exhaust the
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entire remaining amount of the Commitments, each Advance (other
than a Letter of Credit Advance) shall be in a minimum amount
of, with respect to Eurodollar Rate Loans, $500,000.00 and in an
integral multiple of $100,000.00, with respect to Floating Rate
Loans, $100,000.00 and in an integral multiple of $100,000.00
and each Letter of Credit Advance may be in any amount.
1.4 Section 5.2 shall be amended as follows:
(a) Section 5.2(a) shall be deleted and the following shall be
inserted in place thereof:
(a) Intentionally reserved.
(b) Section 5.2(b) shall be deleted in its entirety and the
following shall be inserted in place thereof:
(b) Tangible Net Worth. Permit or suffer Consolidated
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Tangible Net Worth of the Company and its Subsidiaries as of the end
of any fiscal quarter of the Company to be less than the sum of (i)
$62,000,000 plus (ii) an amount equal to 50% of the Cumulative Net
Income of the Company and its Subsidiaries.
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(c) Section 5.2(d) shall be deleted in its entirety and the
following shall be inserted in place thereof:
(d) Cash Flow Coverage Ratio. Permit or suffer the
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Consolidated Cash Flow Coverage Ratio of the Company and its
Subsidiaries to be less than (i) 1.0 to 1.0 for the period from and
including the Third Amendment Effective Date to and including December
31, 1997 and (ii) thereafter, 1.15 to 1.0, in each case, calculated as
of the end of each fiscal quarter for the four (4) consecutive fiscal
quarters then ending. For purposes of calculating the foregoing, the
Current Portion of Funded Indebtedness will include Revolving Credit
Loans to the extent required to be so classified under generally
accepted accounting principals and the effect of the following items
shall be excluded: (i) a one-time charge not to exceed $6,820,856 to
be taken in the fourth quarter of fiscal year 1995 related to closure
and post-closure obligations of East Liverpool Landfill, Inc., a
subsidiary of the Company, pursuant to a Trust Agreement dated
February 3, 1993 between East Liverpool Landfill, Inc. and The Second
National Bank of Warren, as trustee, (ii) a write-down of the value of
the landfill located in East Liverpool, not to exceed $11,685,216, to
be taken in the fourth quarter of fiscal year 1995 and (iii) the
following items to be taken in the fourth quarter of fiscal year 1995:
(A) a write-down of Dart assets in the amount of $291,991, (B) a
reserve in the amount of $940,500 related to legal action involving
the Indiana Department of Environmental Management and (C) a
prepayment premium in the amount of $750,391.
1.5 Sections 5.2(e) shall be amended by deleting the reference
therein to "1.5 to 1" and inserting "2.25 to 1" in place thereof.
ARTICLE 2.
REPRESENTATIONS
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The Company represents and warrants to the Agent and the Banks that:
2.1 The execution, delivery and performance of this Amendment is
within its powers, has been duly authorized and is not in contravention with any
law, of the terms of its Articles of Incorporation or By-laws, or any
undertaking to which it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of the
Company enforceable against it in accordance with the terms hereof subject to
the effects of any applicable
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bankruptcy, insolvency, reorganization, moratorium or other law affecting
creditors' rights generally, and to the effects of general principles of equity.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article 4 of the Loan Agreement are
true on and as of the date hereof with the same force and effect as if made on
and as of the date hereof.
2.4 No Event of Default or any event or condition which might become
an Event of Default with notice or lapse of time, or both, exists or has
occurred and is continuing on the date hereof.
ARTICLE 3.
CONDITIONS OF EFFECTIVENESS
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This Amendment shall not become effective until each of the following
has been satisfied:
3.1 This Amendment shall be signed by the Company, the Banks and the
Agent.
3.2 Each of the Guarantors shall have executed the Consent and
Agreement at the end of this Amendment.
3.3 The Company shall have paid an amendment fee for the pro rata
benefit of the Banks in an amount equal to $18,000.
ARTICLE 4.
MISCELLANEOUS
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4.1 References in the Loan Agreement or in any note, certificate,
instrument or other document to the "Loan Agreement" shall be deemed to be
references to the Loan Agreement as amended hereby and as further amended from
time to time.
4.2 The Company agrees to pay and to save the Agent harmless for the
payment of all costs and expenses arising in connection with this Amendment,
including the reasonable fees of counsel to the Agent in connection with
preparing this Amendment and the related documents.
4.3 The Company acknowledges and agrees that the Agent and the Banks
have fully performed all of their obligations under all documents executed in
connection with the Loan Agreement and all actions taken by the Agent and the
Banks are reasonable and appropriate under the circumstances and within their
rights under the Loan Agreement and all other documents executed in connection
therewith and otherwise available. The Company represents
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and warrants that it is not aware of any claims or causes of action against the
Bank, any participant lender or any of their successors or assigns.
4.4 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the Notes, the Guaranties and all other documents and
agreements executed by the Company in connection with the Loan Agreement in
favor of the Agent or any Bank are ratified and confirmed and shall remain in
full force and effect and that it has no set off, counterclaim or defense with
respect to any of the foregoing. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Loan Agreement.
4.5 This Amendment may be signed upon any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties signing this Amendment have caused
this Amendment to be executed and delivered as of December 31, 1996, to be
effective as of the Third Amendment Effective Date.
AMERICAN WASTE SERVICES, INC.
By: /s/ Timothy C. Coxson
_____________________________________
Its: Chief Financial Officer
________________________________
NBD BANK, INDIVIDUALLY AS A BANK AND AS AGENT
By: /s/ Andrew W. Strait
_____________________________________
Its: Vice President
________________________________
THE SECOND NATIONAL BANK OF WARREN
By: /s/ Norman H. Babcock
___________________________________
Its: Vice President
_________________________________
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CONSENT AND AGREEMENT
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As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment
and the consummation of the transactions contemplated hereby and agrees to all
terms and provisions of the above Amendment applicable to it;
(b) agrees that each Guaranty and all other agreements executed by any
of the undersigned in connection with the Credit Agreement or otherwise in favor
of the Agent or the Banks (collectively, the "Security Documents") are hereby
ratified and confirmed and shall remain in full force and effect, and each of
the undersigned acknowledges that it has no setoff, counterclaim or defense with
respect to any Security Document; and
(c) acknowledges that its consent and agreement hereto is a condition
to the Bank's obligation under this Amendment and it is in its interest and to
its financial benefit to execute this consent and agreement.
MAHONING LANDFILL, INC.
By: /s/ Timothy C. Coxson
___________________________________
Its: Chief Financial Officer
_________________________________
DARTAMERICA, INC.
By: /s/ Pamela J. Corso
___________________________________
Its: Vice President, Administration
_________________________________
EARTH SCIENCES CONSULTANTS, INC.
By: /s/ George P. Ellis
___________________________________
Its: CEO
________________________________
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ANTECH, LTD.
By: /s/ David M. Miller
___________________________________
Its: President
_________________________________
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