Exhibit 10.9
SECOND AMENDMENT TO CREDIT AGREEMENT
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This SECOND AMENDMENT (this "Amendment") dated as of June 14, 2000, is
among (a) WASTE INDUSTRIES, INC., a North Carolina corporation having its
principal place of business at 3301 Benson Drive, Suite 601, Raleigh, North
Carolina 27609 (the "Parent"), and each of the subsidiaries of the Parent (the
"Subsidiaries" and together with the Parent, the "Borrowers"), (b) FLEET
NATIONAL BANK (f/k/a BankBoston, N.A.), a national banking association having
its principal place of business at 100 Federal Street, Boston, Massachusetts
02110, and the other lending institutions listed on the signature pages hereto
(collectively, the "Banks"), (c) FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
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").
WHEREAS, the 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 Parent and the Noteholders (as defined in the Credit
Agreement) are parties to certain Purchase Agreements (as defined in the Credit
Agreement);
WHEREAS, the Borrowers have requested that the Banks and the
Administrative Agent modify certain provisions of the Credit Agreement to permit
the Parent to repurchase up to 1,000,000 shares of its capital stock for an
amount not to exceed $12,000,000; and
WHEREAS, the Administrative Agent and the Majority Banks have agreed,
subject to the satisfaction of the conditions precedent set forth herein, to
amend the Credit Agreement as set forth herein;
NOW, THEREFORE, the Borrowers, the Administrative Agent, the Banks and
the Documentation Agent hereby agree as follows:
ss.1. Defined Terms. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
ss.2. Amendment to Credit Agreement.
(a) Section 7.6 of the Credit Agreement is hereby amended by adding the
following at the end of the first sentence thereof:
"; provided, however, that the Parent may acquire up
to 1,000,000 shares of its capital stock for an amount not to
exceed $12,000,000."
ss.3. Representations and Warranties. Each of the Borrowers represents
and warrants to the Administrative Agent and the Banks as follows:
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(a) The representations and warranties of the Borrowers contained in
the Credit Agreement, as amended hereby, (i) were true and correct in all
material respects when made, and (ii) continue to be true and correct in all
material respects on the date hereof, except to the extent such representations
and warranties by their terms are made solely as of a prior date.
(b) The execution and delivery by the Borrowers of this Amendment and
the performance by the 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 corporate authority of each of the Borrowers,
(ii) have been duly authorized by all necessary corporate proceedings or actions
by each of the 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
Borrowers are subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrowers, and (iv) do not conflict with any provision
of the corporate charter, by-laws or any agreement or other instrument binding
upon any of the Borrowers.
(c) This Amendment, and the Credit Agreement as amended hereby, and the
other Loan Documents to which each of the Borrowers is a party constitute the
legal, valid and binding obligations of each of the Borrowers (as the case may
be) enforceable against each such Person in accordance with their respective
terms.
ss.4. Conditions to Effectiveness. This Amendment shall be effective
upon receipt by the Administrative Agent of the following:
(a) original counterpart signatures (or a faxed copy thereof with
originals to follow) to this Amendment, duly executed and delivered by the
Borrowers and the Majority Banks; and
(b) a copy of the duly executed amendments to the Purchase Agreements
to conform Sections 6G therein to this Amendment.
ss.5. 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 ss.15 of the Credit Agreement.
ss.6. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Amendment, all of
the terms, conditions and provisions of the Credit Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect, and that
this Amendment and the Credit Agreement shall be read and construed as one
instrument.
(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).
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(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 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
WASTE INDUSTRIES, INC.
KABCO OF NORTH CAROLINA, INC.
WASTE ENTERPRISES, INC.
WASTE INDUSTRIES EAST, INC.
NORTH MECKLENBURG SANITATION, INC.
WASTE INDUSTRIES SOUTH, INC.
WASTE INDUSTRIES OF GEORGIA, INC.
ECO SERVICES, INC.
WI-ACS, INC.
DUMPSTERS, INC.
RELIABLE TRASH SERVICE, INC.
RAILROAD AVENUE DISPOSAL, INC.
TRANS WASTE SERVICES, INC.
CURB APPEAL NEW HOME SERVICES, INC.
OLD KINGS ROAD SOLID WASTE, INC.
WASTE INDUSTRIES OF TENNESSEE, LLC
WASTE SERVICES OF DECATUR, LLC
LIBERTY WASTE LENDING COMPANY, LLC
WASTE INDUSTRIES OF VIRGINIA, LLC
QUICK-WAY SALVAGE, INC.
S&S ENTERPRISES, INC.
SOUTHERN WASTE SERVICES, INC.
SOUTHERN WASTE OF ALABAMA, INC.
SAMPSON COUNTY DISPOSAL, INC.
By: __________________________________________
Name:
Title:
FLEET NATIONAL BANK, (f/k/a BankBoston, N.A.),
individually and as Administrative Agent
By: __________________________________________
Name:
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:
CENTURA BANK
By:_________________________________
Name:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: ________________________________
Name:
By: ________________________________
Name: