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Fourth Amendment To Revolving Credit Agreement

This is an actual contract by Eastern Environmental Services.

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Sectors: Manufacturing
Governing Law: Massachusetts, View Massachusetts State Laws
Effective Date: March 31, 1997
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Exhibit 10.46


FOURTH AMENDMENT TO
REVOLVING CREDIT AGREEMENT
AND
SECOND AMENDMENT TO PLEDGE AGREEMENT
------------------------------------


THIS FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT and SECOND AMENDMENT TO PLEDGE AGREEMENT (this "Fourth Amendment") is made and entered into as of the 31st day of March, 1997, by and among EASTERN ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the "Parent"), its Subsidiaries listed on the signature pages hereto (the Parent and such Subsidiaries herein collectively referred to as the "Borrowers" and, individually, as a "Borrower"), each of which Borrowers having its principal place of business at 1000 Crawford Place, Mount Laurel, New Jersey 08054 and THE FIRST NATIONAL BANK OF BOSTON ("FNBB"), a national banking association having its principal place of business at 100 Federal Street, Boston, Massachusetts 02110, BANK OF AMERICA ILLINOIS, an Illinois banking corporation having its head office at 231 South LaSalle Street, Chicago, Illinois 60697 ("B of A") and such banks or other financial institutions which become a party hereto (each a "Bank," and, collectively, the "Banks"), and FNBB as Agent for the Banks (the "Agent").


WHEREAS, the Borrowers, the Banks and the Agent have entered into a Revolving Credit Agreement dated as of September 25, 1996 and amended by a First Amendment to Revolving Credit Agreement dated as of November 14, 1996, a Second Amendment to Revolving Credit Agreement dated as of November 26, 1996, and a Third Amendment to Revolving Credit Agreement and First Amendment to Pledge Agreement dated as of January 27, 1997 (as further amended and in effect from time to time, the "Credit Agreement") pursuant to which the Banks extended credit to the Borrowers on the terms set forth therein;


WHEREAS, the Banks and the Borrowers have agreed to amend the Credit Agreement as hereinafter set forth;


NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: -2-


1. DEFINITIONS. Capitalized terms used herein without definition have the
----------- meanings ascribed to them in the Credit Agreement.


2. AMENDMENT TO SCHEDULE 1 OF THE CREDIT AGREEMENT. SCHEDULE 1 to the
--------- -- -------- - -- --- ------ --------- Credit Agreement is hereby amended to add Apex Waste Services, Inc. ("Apex"), Donno Company, Inc. ("Donno"), Residential Service, Inc. ("RSI"), Suffolk Waste Systems, Inc. ("Suffolk"), and NRT Realty Corp. ("NRT") each as a Subsidiary of the Parent and as a Borrower. An amended and restated SCHEDULE 1 is attached to this Fourth Amendment. The Borrowers represent and warrant that the entities listed on SCHEDULE 1 hereto are all of the Subsidiaries of the Parent, and that each such Subsidiary which is not identified as an inactive Subsidiary is a Borrower.


3. AMENDMENT TO (S)1.1 OF THE CREDIT AGREEMENT. The following definition
--------- -- ------ -- --- ------ --------- appearing in (S)1.1 of the Credit Agreement is hereby deleted in its entirety and the following substituted in place thereof:


"Proforma EBITDA. For any twelve month period, the Consolidated Net
-------- ------ Income (or Deficit) of the Borrowers determined in accordance with GAAP, provided that, with respect to any Subsidiary (other than R & A Bender, Inc. ("Bender"), the Waste Services Companies (as defined in (S)7 of the Third Amendment to the Credit Agreement), or Apex) acquired within the past twelve months or to be acquired, the calculation of Consolidated Net Income (or Deficit) for the period prior to such Subsidiary's acquisition may include reference to such Subsidiary's historical financial statements (which have been reviewed and analyzed by the Parent in accordance with its standard due diligence practices and which are in form and substance satisfactory to the Banks) as such statements may be adjusted by agreement between the Banks and the Borrowers as if such Subsidiary had been owned for those twelve months, plus (a) interest expense, (b) income taxes, (c) depreciation and landfill depletion expenses, and (d) amortization expense, to the extent that each of the same has been deducted in calculating such Consolidated Net Income (or Deficit), plus the following amounts relating to Bender: (e) $4,400,000 for the fiscal quarter ending December 31, 1996, (f) $3,200,000 for the fiscal quarter ending March 31, 1997, (g) $2,000,000 for the fiscal quarter ending June 30, 1997, and (h) $800,000 for the fiscal quarter ending September 30, 1997, plus the following amounts relating to the Waste Services Companies: (i) $3,150,000 for the fiscal quarter ending March 31, 1997, (j) $2,100,000 for the fiscal quarter ending June 30, 1997, and (k) $1,050,000 for the fiscal quarter ending -3-


September 30, 1997, plus the following amounts relating to Apex: (1)
$2,490,000 for the fiscal quarter ending March 31, 1997, and (m) $1,245,000
for the fiscal quarter ending June 30, 1997, but excluding onetime charges
of not more than (x) $2,820,000 relating to the change of control onetime
charges taken in the fiscal quarter ended June 30, 1996 and (y) $1,857,000
relating to pooling charges for the acquisition of Super Kwik taken in the
fiscal quarter ended September 30, 1996."


5. AMENDMENT TO PLEDGE AGREEMENT. By executing this Fourth Amendment
--------- -- ------ --------- where indicated below, each of Apex, Donno, RSI, Suffolk, and NRT (i) hereby grants to the Agent for the benefit of the Banks, to secure the payment and performance of the Obligations, all of such Borrower's right title and interest in all Collateral (as defined in the Pledge Agreement), and (ii) agrees to be bound by the terms and conditions of the Pledge Agreement as if it were an original party thereto.

6. CONSENT TO APEX ACQUISITION. Any Event of Default which would
------- -- ---- ----------- otherwise occur under subclause (e) of (S)7.4 of the Credit Agreement as a result of the transaction described in the draft Reorganization Plan and Agreement (the "Reorganization Plan") dated March 24, 1997 by and among Apex Waste Services, Inc., Robert A. Kinsley, Scott R. Wagner, Dennis M. Grimm, William J. Holbrook, and Eastern Environmental Services, Inc. is hereby waived, provided that (a) the aggregate cash purchase price paid in connection therewith (including the amount of all Indebtedness assumed) shall not exceed $16,000,000, and (b) the Borrowers shall comply with all other provisions of (S)7.4 of the Credit Agreement and with (S)7.1 thereof.

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