1
Exhibit 10.8
SECOND AMENDMENT TO REVOLVING
CREDIT AND TERM LOAN AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT (this
"Second Amendment") is made and entered into as of the 7th day of September,
1995, by and among USA WASTE SERVICES, INC., a Delaware corporation (the
"Borrower"), its Subsidiaries listed on Schedule 1 to the Credit Agreement
defined below (collectively the "Guarantors"), THE FIRST NATIONAL BANK OF
BOSTON, a national banking association ("FNBB"), BANK OF AMERICA ILLINOIS, an
Illinois banking association ("BAI"), and J.P. MORGAN SECURITIES, INC., a
Delaware corporation ("J.P. Morgan") (collectively, the "Agents"), FNBB, BAI,
Morgan Guaranty Trust Company of New York, a New York state banking association
("MGT") and the other financial institutions party hereto (collectively, the
"Banks"), and MGT as the Administrative Agent and FNBB, as Documentation Agent
(collectively, the "Bank Agents").
WHEREAS, the Borrower, the Guarantors, the Banks, the Agents and the Bank
Agents are party to a Revolving Credit and Term Loan Agreement dated as of June
30, 1995, as amended by the First Amendment to Revolving Credit and Term Loan
Agreement dated as of August 11, 1995 (as so amended, the "Credit Agreement"),
pursuant to which the Banks have extended credit to the Borrower on the terms
set forth therein;
WHEREAS, the Borrower has requested that the Banks, the Agents, and the
Bank Agents amend the Credit Agreement, and the Banks, the Agents and the Bank
Agents are willing to amend the Credit Agreement on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENT TO Section 4.5 OF THE CREDIT AGREEMENT. Section 4.5 of
the Credit Agreement is hereby amended by deleting the percent "50%" set forth
in subclause (c) of such Section 4.5 and substituting in place thereof the
percentage "25%".
3. REPRESENTATIONS AND WARRANTIES. The Borrower and the Guarantors
jointly and severally represent and warrant as follows:
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(a) The execution, delivery and performance of this Second Amendment
and the Credit Agreement, as modified by this Second Amendment, and the
transactions contemplated hereby and thereby (i) are within the corporate
authority of the Borrower and each of the Guarantors, (ii) have been duly
authorized by all necessary corporate proceedings on the part of the respective
Borrower or Guarantor, (iii) do not conflict with or result in any material
breach or contravention of any provision of law, statute, rule or regulation to
which the Borrower or any Guarantor is subject or any judgment, order, writ,
injunction, license or permit applicable to the Borrower or any Guarantor so as
to materially adversely affect the assets, business or any activity of the
Borrower and the Guarantors as a whole, and (iv) do not conflict with any
provision of the corporate charter or bylaws of the Borrower or any Guarantor
or any agreement or other instrument binding upon the Borrower or any
Guarantor.
(b) The execution, delivery and performance of this Second Amendment
and the Credit Agreement, as modified by this Second Amendment, will result in
valid and legally binding obligations of the Borrower and the Guarantors party
thereto enforceable against each in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
(c) The execution, delivery and performance by the Borrower and the
Guarantors of this Second Amendment and the Credit Agreement, as modified by
this Second Amendment, and the consummation by the Borrower and the Guarantors
of the transactions contemplated hereby and thereby do not require any approval
or consent of, or filing with, any governmental agency or authority other than
those already obtained and those required after the date hereof in connection
with the Borrower's and the Guarantors' performance of their covenants
contained in Sections 7, 8 and 9 of the Credit Agreement.
(d) The representations and warranties contained in Section 6 of the
Credit Agreement are true and correct in all material respects as of the date
hereof as though made on and as of the date hereof.
(e) No Default or Event of Default under the Credit Agreement has
occurred and is continuing.
4. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and
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confirmed in all respects and shall continue in full force and effect. Each of
the Guarantors hereby confirms that its guaranty of the Guaranteed Obligations
contained in Section 27 of the Credit Agreement remains in full force and
effect. This Second Amendment and the Credit Agreement shall hereafter be read
and construed together as a single document, and all references in the Credit
Agreement, any other Loan Document or any agreement or instrument related to
the Credit Agreement shall hereafter refer to the Credit Agreement as amended
by this Second Amendment.
5. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS) AND SHALL TAKE EFFECT AS A SEALED
INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
6. COUNTERPARTS. This Second Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. EFFECTIVENESS. This Second Amendment shall become effective upon the
satisfaction of each of the following conditions (the "Effective Date"):
(a) This Second Amendment shall have been executed and delivered by
the Borrower, the Guarantors, the Majority Banks, the Agents and the Bank
Agents;
(b) All corporate action necessary for the valid execution, delivery
and performance by the Borrower of the Credit Agreement, as amended by this
Second Amendment, shall have been taken, and evidence thereof satisfactory to
the Agents shall have been provided to the Agents; and
(c) The Borrower shall have completed an equity offering with net cash
proceeds of at least $75,000,000 on or before November 30, 1995.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this Second
Amendment under seal as of the date first set forth above.
THE BORROWER:
USA WASTE SERVICES, INC.
By: /s/ EARL E. DEFRATES
------------------------------------
Earl E. DeFrates, Executive Vice
President and Chief Financial
Officer
THE GUARANTORS:
BEST PAK DISPOSAL, INC.
BIG DIPPER ENTERPRISES, INC.
BREM-AIR DISPOSAL, INC.
CENTRAL ILLINOIS DISPOSAL,
INC.
COUNTRYSIDE LANDFILL, INC.
CRYSTAL LAKE DISPOSAL, INC.
CUSTOM DISPOSAL SERVICES,
INC.
EARTHMOVERS, INC.
ELLIS-SCOTT, INC.
ENVIROFIL, INC.
ENVIROFIL OF ILLINOIS, INC.
(FORMERLY LEROY BROWN & SONS,
INC.)
ENVIROFIL SERVICES, INC.
ENVIRONMENTAL WASTE OF
SKAGIT COUNTY, INC.
By: /s/ EARL E. DEFRATES
------------------------------------
Earl E. DeFrates, Executive Vice
President and Chief Financial
Officer of each of the Companies
listed above
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EVH CO.
EWA, INC. (FORMERLY MARCH
ACQUISITION CORPORATION)
FORCEES, INC.
JUAN DE FUCA CORRUGATED,
LTD.
KITSAP COUNTY SANITARY
LANDFILL, INC.
LAKELAND PROPERTIES, INC.
LIBERTY LANDFILL, INC.
MEADOWBROOK CARTING CO.,
INC.
MID-JERSEY DISPOSAL CO., INC.
MID-VALLEY ACQUISITION
CORPORATION
MISSION DISPOSAL, INC.
NORTH SOUND SANITATION, INC.
QUALITY RECYCLING CO., INC.
SACRAMENTO VALLEY
ENVIRONMENTAL WASTE
COMPANY
SOIL REMEDIATION OF
PHILADELPHIA, INC.
SOUTH SOUND SANITATION, INC.
STANWOOD CAMANO DISPOSAL,
INC.
STOCKTON SCAVENGERS
ASSOCIATION
USA WASTE HAULING OF
PHILADELPIA, INC.
USA WASTE OF OKLAHOMA, INC.
(FORMERLY UNITED SANITATION
ASSOCIATES WASTE MANAGEMENT,
INC.)
USA WASTE OF ARIZONA, INC.
USA WASTE OF ILLINOIS, INC.
USA WASTE OF INDIANA, INC.
By: /s/ EARL E. DEFRATES
------------------------------------
Earl E. DeFrates, Executive Vice
President and Chief Financial
Officer of each of the Companies
listed above
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USA WASTE OF TEXAS, INC.
(FORMERLY USA WASTE SERVICES,
INC. OF TEXAS)
U.S.A. WASTE OF FAIRLESS
HILLS, INC.
CLEANSOILS FAIRLESS HILLS,
INC.
WEST VIRGINIA WASTE
SERVICES, INC.
WPP, INC.
WASTE RECOVERY
CORPORATION
CHAMBERS ACQUISITION CORP.
CHAMBERS DEVELOPMENT
COMPANY, INC.
CHAMBERS CLEARVIEW
ENVIRONMENTAL LANDFILL,
INC.
CHAMBERS DEVELOPMENT OF
OHIO, INC.
CHAMBERS DEVELOPMENT OF
VIRGINIA, INC.
CHAMBERS ENTERPRISES, INC.
CHAMBERS INTERNATIONAL,
INC.
CHAMBERS LAUREL HIGHLANDS
LANDFILL, INC.
CHAMBERS MAPLEWOOD
LANDFILL, INC.
CHAMBERS MEDICAL
TECHNOLOGIES, INC.
(INCORPORATED 2/12/85)
CHAMBERS MEDICAL
TECHNOLOGIES, INC.
(INCORPORATED 4/26/91)
By: /s/ EARL E. DEFRATES
------------------------------------
Earl E. DeFrates, Executive Vice
President and Chief Financial
Officer of each of the Companies
listed above
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CHAMBERS MEDICAL
TECHNOLOGIES OF SOUTH
CAROLINA, INC.
CHAMBERS NEW JERSEY LAND,
INC.
CHAMBERS OAKRIDGE USA
LANDFILL, INC.
CHAMBERS ORANGE COUNTY
LANDFILL, INC.
CHAMBERS RESOURCES, INC.
CHAMBERS RICHLAND COUNTY
LANDFILL, INC.
CHAMBERS SERVICES, INC.
CHAMBERS SMYRNA LANDFILL,
INC.
CHAMBERS WASTE SYSTEMS OF
CALIFORNIA, INC.
CHAMBERS WASTE SYSTEMS OF
FLORIDA, INC.
CHAMBERS WASTE SYSTEMS OF
MISSISSIPPI, INC.
CHAMBERS WASTE SYSTEMS OF
NEW YORK, INC.
CHAMBERS WASTE SYSTEMS OF
NORTH CAROLINA, INC.
CHAMBERS WASTE SYSTEMS OF
OHIO, INC.
CHAMBERS WASTE SYSTEMS OF
NEW JERSEY, INC.
CHAMBERS WASTE SYSTEMS OF
RHODE ISLAND, INC.
CHAMBERS WASTE SYSTEMS OF
SOUTH CAROLINA, INC.
CHAMBERS WASTE SYSTEMS OF
TEXAS, INC.
By: /s/ EARL E. DEFRATES
------------------------------------
Earl E. DeFrates, Executive Vice
President and Chief Financial
Officer of each of the Companies
listed above
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CHAMBERS WASTE SYSTEMS OF
VIRGINIA, INC.
CHAMBERS OF DELAWARE, INC.
CHAMBERS OF GEORGIA, INC.
CHAMBERS OF ILLINOIS, INC.
CHAMBERS OF INDIANA, INC.
CHAMBERS OF NEW JERSEY,
INC.
CHAMBERS OF NEW JERSEY
RECYCLING, INC.
CHAMBERS OF MARYLAND, INC.
CHAMBERS OF
MASSACHUSETTS, INC.
CHAMBERS OF MISSISSIPPI, INC.
CHAMBERS OF PENNSYLVANIA,
INC.
CHAMBERS OF TENNESSEE, INC.
CHAMBERS OF WEST VIRGINIA,
INC.
DAUPHIN MEADOWS, INC.
THE H. SIENKNECHT CO.
LCS SERVICES, INC.
WILLIAM H. MARTIN, INC.
MORRIS COUNTY TRANSFER
STATION, INC.
RAIL-IT CORPORATION
REMOTE LANDFILL SERVICES,
INC.
CDC SERVICES, INC.
SOUTHERN ALLEGHENIES
DISPOSAL SERVICES, INC.
U.S. SERVICES CORPORATION
U.S. UTILITIES SERVICES CORP.
CHAMBERS R & B LANDFILL,
INC.
By: /s/ EARL E. DEFRATES
------------------------------------
Earl E. DeFrates, Executive Vice
President and Chief Financial
Officer of each of the Companies
listed above
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RAIL-IT LIMITED PARTNERSHIP
By: Rail-It Corporation, Its General Partner
By: /s/ EARL E. DEFRATES
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Title: Executive VP & CFO
-------------------------------------
THE BANKS AND AGENTS:
THE FIRST NATIONAL BANK OF BOSTON,
Individually and as Documentation Agent and
Issuing Bank and as Agent
By: [ILLEGIBLE]
----------------------------------------
Title: Managing Director
-------------------------------------
BANK OF AMERICA, ILLINOIS, Individually
and as Agent
By: [ILLEGIBLE]
----------------------------------------
Title: Vice President
-------------------------------------
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Individually and as the Administrative Agent
By: /s/ LAURA E. REIM
----------------------------------------
Title: Vice President
-------------------------------------
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J.P. MORGAN SECURITIES INC., as Agent
By:
----------------------------------------
Title:
-------------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ASHBY
----------------------------------------
Title: Senior Manager Loan Operations
-------------------------------------
BANK ONE, TEXAS N.A.
By:
----------------------------------------
Title:
-------------------------------------
BANQUE PARIBAS, HOUSTON
AGENCY
By: /s/ TIMOTHY A. DONNON
----------------------------------------
Title: Regional General Manager
-------------------------------------
By: /s/ SCOTT CLINGAN
----------------------------------------
Title: Vice President
-------------------------------------
BHF-BANK AG
By: [ILLEGIBLE]
----------------------------------------
Title: AVP
-------------------------------------
By: [ILLEGIBLE]
----------------------------------------
Title: VP
-------------------------------------
CIBC INC.
By:
----------------------------------------
Title:
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COMERICA BANK
By:
----------------------------------------
Title:
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK,
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ STEPHEN A. RICH
----------------------------------------
Title: Vice President
-------------------------------------
By: /s/ W. JEFFREY VOLLACK
----------------------------------------
Title: Vice President, Manager
-------------------------------------
CREDIT LYONNAIS NEW YORK
BRANCH
By: [ILLEGIBLE]
----------------------------------------
Title: Vice President
-------------------------------------
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By: [ILLEGIBLE]
----------------------------------------
Title: Authorized Signature
-------------------------------------
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By: /s/ JEAN M. HANNINGAN
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Title: Assistant Vice President
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By: /s/ JOHN AUGSBURGER
----------------------------------------
Title: Vice President
-------------------------------------
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: [ILLEGIBLE]
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Title: Vice President
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FLEET BANK OF MASSACHUSETTS, N.A.
By: /s/ MARYANN S. SMITH
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Title: Vice President
-------------------------------------
THE FUJI BANK, LIMITED, HOUSTON
AGENCY
By: [ILLEGIBLE]
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Title: Vice President and Senior Manager
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HIBERNIA NATIONAL BANK
By: /s/ TROY J. VILLAFARRA
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Title: Vice President
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THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By: [ILLEGIBLE]
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Title: Joint General Manager
-------------------------------------
NATWEST BANK N.A.
By: /s/ DILCIA PENA HILL
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Title: Vice President
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THE NIPPON CREDIT BANK, LTD.
By: [ILLEGIBLE]
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Title: Vice President & Manager
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THE SUMITOMO BANK, LTD. -
HOUSTON AGENCY
By: [ILLEGIBLE]
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Title: General Manager
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SOCIETY NATIONAL BANK
By: [ILLEGIBLE]
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Title: VP & Manager
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UNION BANK
By: [ILLEGIBLE]
----------------------------------------
Title: [ILLEGIBLE]
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WELLS FARGO BANK, N.A.
By: [ILLEGIBLE]
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Title: SVP
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VAN KAMPEN MERRITT PRIME RATE INCOME TRUST
By:
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Title:
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THE SANWA BANK, LIMITED, DALLAS AGENCY
By: /s/ MATTHEW G. PATRICK
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Title: Vice President
-------------------------------------