EXHIBIT 10.64
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FOURTH AMENDMENT TO LOAN AGREEMENT
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THIS FOURTH AMENDMENT TO LOAN AGREEMENT, dated as of July 15, 1997
(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, a Second Amendment to Credit
Agreement dated as of February 19, 1996 and a Third Amendment to Loan Agreement
dated as of December 31, 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:
l.1 Section 1.1 shall be amended as follows:
(a) The definition of "Maturity Date" shall be amended by deleting
the reference therein to "Third Amendment Effective Date" and inserting
"December 31, 1996" in place thereof.
(b) A new definition of "Fourth Amendment Effective Date" shall be
added in appropriate alphabetical order as set forth below:
"Fourth Amendment Effective Date" shall mean July 15, 1997.
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1.2 Section 2.1 (b) shall be deleted and the following shall be
inserted in place thereof:
2.1(b) Limitation on Amount of Advances. Notwithstanding
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anything in this Agreement to the contrary, the aggregate
principal amount of the Advances made by Banks at any time
outstanding shall not exceed $23,000,000 until December 31, 1997,
at which time the aggregate principal amount of the Advances made
by Banks at any time outstanding shall reduce to $18,000,000
provided, however, that the aggregate principal amount of Letter
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of Credit Advances outstanding at any time shall not exceed
$13,000,000.
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 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 $5,000.
3.4 The Company shall have delivered to the Agent for each Bank, in
exchange for the Revolving Credit Note and Term Note heretofore delivered to
such Bank pursuant to Section 2.4 (c) of the Loan Agreement, new Revolving
Credit Note (Exhibits B-1, B-2, B-3 and B-4) and new Term Note (Exhibits C-1,
C-2, C-3 and C-4) for each of the periods referenced in Section 2.1 (b) of the
Loan Agreement, each dated the date of the Notes being exchanged, payable to
such Bank in a principal amount equal to the amount of the Commitment,
respectively, set forth opposite such Bank's name on the signature pages hereof,
and each of such Revolving Credit Notes and Term Notes delivered to the Banks
shall constitute a "Note" under the Loan Agreement amended hereby.
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 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 July 15, 1997, to be effective
as of the Fourth Amendment Effective Date.
AMERICAN WASTE SERVICES, INC.
By:________________________
Its: _________________________
NBD BANK, Individually as a Bank
and as Agent
611 Woodward Avenue By:______________________________
Detroit, MI 48226
Its: ______________________________
Attention: Agency Administration
Facisimile No.: (313) 225-2747
Fascimile
Confirmation No.: (313) 225-2747
Telephone No.: (313) 225-4749
Commitment Amount until 12/31/97: $19,600,000.00
Commitment Amount subsequent to 12/31/97: $15,000,000.00
Addresses for Notices: THE SECOND NATIONAL BANK OF WARREN
108 Main Avenue, S.W.
Warren, OH 44482 By:____________________________
Attention Larry Stofira
Its:_____________________________
Facisimile No.: (216) 841-0219
Facisimile
Confirmation No.: (216) 841-0219
Telephone No.: (216) 841-0126
Commitment Amount until 12/31/97: $3,400,000.00
Commitment Amount subsequent to 12/31/97: $3,000,000.00
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:_______________________
Its:________________________
DARTAMERICA, INC.
By:_________________________
Its: _________________________
EARTH SCIENCES CONSULTANTS, INC.
By:__________________________
Its: __________________________
ANTECH, LTD.
By:___________________________
Its:___________________________