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Exhibit 4.2
SECOND AMENDMENT AGREEMENT
TO LONG TERM CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment Agreement") is made and
entered into as of this 20th day of June, 2000, by and among REPUBLIC SERVICES,
INC., a Delaware corporation (herein called the "Company"), the several
financial institutions signatory hereto (collectively, the "Lenders";
individually each a "Lender") and BANK OF AMERICA, N.A. (successor by merger of
Bank of America National Trust and Savings Association), as administrative agent
for the Lenders (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and the Lenders have
entered into a Long Term Credit Agreement dated July 10, 1998, as amended (the
"Agreement") pursuant to which the Lenders have agreed to make loans to the
Company in the aggregate principal amount of up to $500,000,000 as evidenced by
the Notes (as defined in the Agreement) and to issue Letters of Credit for the
benefit of the Company; and
WHEREAS, the Company has requested that the Agreement be amended in the
manner described herein and the Administrative Agent and the Lenders have
agreed, subject to the terms and conditions hereof, to make such amendment, as
provided herein;
NOW, THEREFORE, the Company, the Administrative Agent and the Lenders
do hereby agree as follows:
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1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENT. Subject to the conditions set forth herein, the Agreement
is hereby amended, effective as of the date hereof, as follows:
(a) The following new definitions are hereby added to SECTION
1.1 in the appropriate alphabetical order:
"CANADIAN CURRENCY EQUIVALENT AMOUNT means, with
respect to the Canadian Dollar and a specified Dollar amount,
the amount of Canadian Dollars into which such Dollar amount
would be converted, based on the Exchange Rate.
CANADIAN DOLLARS means the lawful currency of Canada.
CANADIAN L/C means a Letter of Credit which is
denominated in Canadian Dollars.
DOLLAR EQUIVALENT AMOUNT means, with respect to a
Canadian Dollar amount, the amount of Dollars into which the
Canadian Dollar amount would be converted, based on the
applicable Exchange Rate.
DOLLAR VALUE of a Letter of Credit in a Canadian
Dollar amount means the Dollar Equivalent Amount of the stated
amount of such Letter of Credit as recorded in the
Administrative Agent's records pursuant to SECTION 3.1(C).
EXCHANGE RATE means, with respect to the issuance of
a Canadian L/C, the Spot Rate of Exchange as of the date two
Business Days preceding the Valuation Date.
SPOT RATE OF EXCHANGE means, (i) in determining the
Dollar Equivalent Amount of a specified Canadian Dollar amount
as of any date, the spot exchange rate determined by the
Administrative Agent in accordance with its usual procedures
for the purchase by the Administrative Agent of Dollars with
Canadian Dollars at approximately 10:00 A.M. on the Business
Day that is two (2) Business Days prior to such date, and (ii)
in determining the Canadian Currency Equivalent Amount of a
specified Dollar amount on any date, the spot exchange rate
determined by the Administrative Agent in accordance with its
usual procedures for the purchase by the Administrative Agent
of Canadian
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Dollars with Dollars at approximately 10:00 A.M. on the
Business Day that is two (2) Business Days prior to such date.
VALUATION DATE means any of (i) the date of any
Credit Extension, (ii) the date of any L/C Borrowing, and
(iii) any other date when there are outstanding Canadian L/Cs
that the Administrative Agent shall determine the Dollar
Equivalent Amount of Canadian L/Cs."
(b) The definition of "L/C Obligations" in SECTION 1.1 is
hereby amended in its entirety so that as amended it shall read as
follows:
"L/C OBLIGATIONS means at any time the sum of (a) the
aggregate Dollar Equivalent Amount of all undrawn Canadian
L/Cs and Dollar amount of all other undrawn Letters of Credit
then outstanding, plus (b) the Dollar Equivalent Amount of all
unreimbursed drawings under all Canadian L/Cs, plus (c) the
Dollar amount of all unreimbursed drawings under all other
Letters of Credit, including all outstanding L/C Borrowings."
(c) CLAUSE (V) of SECTION 3.1(B) is amended in its entirety so
that as amended it shall read as follows:
"(v) such Letter of Credit is denominated in a
currency other than Dollars, or, in the case of BofA only, in
a currency other than Dollars or Canadian Dollars."
(d) A new subsection (c) is hereby added to SECTION 3.1 which
subsection (c) shall read as follows:
"(c) On the terms and conditions set forth herein,
BofA may Issue upon request and for the account of the Company
a standby Canadian L/C. For purposes of determining L/C
Obligations, any Canadian L/C shall be recorded in the
Administrative Agent's account in Dollars based on the Dollar
Equivalent Amount on the date of issuance of such Canadian
L/C; PROVIDED, HOWEVER, that the Administrative Agent shall
determine the Dollar Equivalent Amount of any Canadian L/C on
the Valuation Date for the purpose of determining L/C
Obligations. Any draw on a Canadian L/C shall be repaid in
Canadian Dollars in an amount equal to the amount of the draw
in Canadian Dollars. If at any time there is a drawing under a
Canadian L/C and the Company shall not promptly reimburse such
drawing as provided in SECTION 3.3, the Company shall be
obligated to immediately repay to the Administrative Agent for
the benefit of the Lenders an amount in Dollars equal to the
Dollar Equivalent Amount of the Canadian Dollars paid by BofA
to the beneficiary of such Canadian L/C on the date of such
drawing."
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(e) Subsection (a) of SECTION 3.8 is amended in its entirety
so that as amended it shall read as follows:
"(a) The Company shall pay to the Administrative
Agent for the account of each Lender a letter of credit fee
with respect to each Letter of Credit equal to the L/C Fee
Rate (plus, upon notice from the Administrative Agent (acting
at the request or with the consent of the Required Lenders)
during the existence of an Event of Default, and for so long
as such Event of Default shall continue, 2%) per annum of the
average daily maximum amount available to be drawn on such
Letter of Credit or in the case of a Canadian L/C the Dollar
Equivalent Amount of the average daily maximum amount,
computed on a quarterly basis and on the Termination Date (or
such later date on which such Letter of Credit shall expire or
be fully drawn)."
(f) SECTION 8.6 is hereby amended in its entirety so that as
amended it shall read as follows:
"8.6 LIMITATIONS ON SUBSIDIARY INDEBTEDNESS. The
Company shall not permit the sum of the aggregate amount of
all Indebtedness of Subsidiaries (excluding (i) the existing
Indebtedness listed on SCHEDULE 8.6 and extensions, renewals
and refinancings thereof so long as the principal amount
thereof is not increased and (ii) extensions of credit
permitted under SECTION 8.5(C)) to exceed 20% of Consolidated
Tangible Assets."
3. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants that:
(a) The representations and warranties made by Company in
ARTICLE VI of the Agreement are true on and as of the date hereof;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Company and its Subsidiaries
since the date of the most recent financial reports of the Company
received by each Lender under SECTION 7.1 thereof, other than changes
in the ordinary course of business, none of which has a Material
Adverse Effect;
(c) The business and properties of the Company and its
Subsidiaries are not and have not been adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
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(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constitutes an
Unmatured Event of Default or an Event of Default on the part of the
Company under the Agreement, the Notes or any other Loan Document
either immediately or with the lapse of time or the giving of notice,
or both.
4. CONDITIONS. This Amendment Agreement shall become effective upon the
Company delivering to the Administrative Agent (i) seventeen (17) counterparts
of this Amendment Agreement duly executed by the Company, the Administrative
Agent and the Lenders and (ii) receipt by the Administrative Agent of all fees
and expenses due in connection with this Amendment Agreement.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing, in
the manner provided in the Agreement, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any proceeding or
succeeding breach thereof.
6. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
COMPANY:
REPUBLIC SERVICES, INC.
WITNESS:
/s/ R. MALLOY MCKEITHEN By: /s/ EDWARD LANG
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Name: Edward Lang
Title: Vice President-Finance & Treasurer
/s/ TERRY L. WITCHER
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BANK OF AMERICA, N.A.,
as Administrative Agent and a
Documentation Agent
By: /s/ RICHARD M. STARKE
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Name: Richard M. Starke
Title: Managing Director
BANK OF AMERICA, N.A., as Swing Line
Lender, as an Issuing Lender and as a Lender
By: /s/ RICHARD M. STARKE
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Name: Richard M. Starke
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Title: Managing Director
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THE CHASE MANHATTAN BANK,
as Documentation Agent and as a Lender
By: /s/ GAIL WEISS
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Name: Gail Weiss
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Title: Vice President
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BANK ONE, N.A.,
as Documentation Agent, as an Issuing
Lender and as a Lender
By: /s/ DIANNA MCCARTHY
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Name: Dianna McCarthy
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Title: Vice President
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ABN AMRO BANK, N.V.,
as a Lender
By: /s/ LAURIE D. FLOM
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Name: Laurie D. Flom
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Title: Group Vice President
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By: /s/ MARY L. HONDA
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Name: Mary L. Honda
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Title: Vice President
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BANCA DI ROMA,
as a Lender
By: /s/ STEVEN PALEY
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Name: Steven Paley
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Title: FVP
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By: /s/ ALESSANDRO PAOLI
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Name: Alessandro Paoli
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Title: Asst. Treasurer
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BANK OF NEW YORK,
as a Lender
By: /s/ DAVID SIEGEL
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Name: David Siegel
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Title: Vice President
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CIBC, INC.,
as a Lender
By: /s/ STEPHANIE E. DEVANE
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Name: Stephanie E. Devane
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Title: Executive Director
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CIBC World Market Corp., as agent
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CITIBANK, N.A.,
as a Lender
By: /s/ DAVID L. HARRIS
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Name: David L. Harris
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Title: Vice President
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COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
as a Lender
By: /s/ HARRY P. YERGEY
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Name: Harry P. Yergey
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Title: Senior Vice President & Manager
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By: /s/ SUBASH R. VISWANATHAN
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Name: Subash R. Viswanathan
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Title: Vice President
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DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
as a Lender
By: /s/ IAIN STUART
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Name: Iain Stuart
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Title: Vice President
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By: /s/ STEPHANIE STROKE
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Name: Stephanie Stroke
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Title: Vice President
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AMSOUTH BANK,
as a Lender
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ MARY A. MORGAN
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Name: Mary A. Morgan
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Title: SVP
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FLEET NATIONAL BANK,
as a Lender
By: /s/ MICHAEL NATOCA
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Name: Michael Natoca
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Title: Vice President
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SUNTRUST BANK,
as a Lender
By: /s/ W. DAVID WISDOM
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Name: W. David Wisdom
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Title: Vice President
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WELLS FARGO BANK,
as a Lender
By: /s/ RON SINGH
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Name: Ron Singh
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Title: Vice President
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WESTDEUTSCHE LANDESBANK,
GIROZENTRALE, New York Branch
as a Lender
By: /s/ DUNCAN M. ROBERTSON
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Name: Duncan M. Robertson
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Title: Director
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By: /s/ BARRY S. WADLER
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Name: Barry S. Wadler
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Title: Manager
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