Exhibit
10.37
AMENDMENT
NO. 4 TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT
This
AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT (this “
Amendment ”) is made and entered into as of June 14,
2004 by and among CASELLA WASTE SYSTEMS, INC. , a Delaware
corporation (the “ Parent ”), and each of its
Subsidiaries listed on Schedule 1 to the Credit
Agreement referred to below (other than the Excluded Subsidiaries)
(the Parent and such Subsidiaries herein collectively referred to
as the “ Borrowers ”), FLEET NATIONAL
BANK (“ Fleet ”) and the other financial
institutions party to the Credit Agreement executing this Amendment
(as defined below), and Fleet as administrative agent for itself
and the other Lenders
(in such capacity, the “
Administrative Agent ”). Capitalized terms used
herein without definition shall have the respective meanings
provided therefor in the Credit Agreement.
WHEREAS , the Borrowers, the Administrative Agent and
the financial institutions referred to therein as Lenders (the
“ Lenders ”), are parties to a Second Amended
and Restated Revolving Credit and Term Loan Agreement, dated as of
January 24, 2003, as amended by an Amendment No. 1 and Release to
Second Amended and Restated Revolving Credit and Term Loan
Agreement, dated as of April 30, 2003, an Amendment No. 2 to Second
Amended and Restated Revolving Credit and Term Loan Agreement,
dated as of August 26, 2003, and an Amendment No. 3 and Consent to
Certain Acquisitions to Second Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of November 21, 2003 (as
otherwise amended and restated and in effect from time to time, the
“ Credit Agreement ”), pursuant to which the
Lenders have extended credit to the Borrowers on the terms set
forth therein;
WHEREAS,
the Borrowers
have requested that the Administrative Agent and the Required
Lenders amend the Credit Agreement as provided more fully herein
below;
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 hereto agree as follows:
§1.
Amendments to Credit Agreement . The Credit Agreement is
hereby amended as follows:
§1.1
Amendments to Section 1.1 .
(a) The
definition of “Consolidated Adjusted Net Income” in
Section 1.1 is hereby amended in its entirety to read as
follows:
“Consolidated
Adjusted Net Income . For any period, the
Consolidated Net Income (or Loss) of the Parent and its
Subsidiaries determined in accordance with GAAP, plus , to
the extent deducted and without duplication, (a) adjustments for
non-cash write-offs attributable to the use of a fair value
methodology for recognition and measurement of impairment of
goodwill not identified with impaired assets in accordance with
Financial Accounting Standards Board Statement No. 142 up to an
aggregate amount of $62,825,000, (b) charges incurred by the
Borrowers in connection with the early termination of interest rate
hedging contracts up to an aggregate amount of $4,000,000, (c)
adjustments for non-cash, non-recurring charges related to losses
from asset impairment charges or resulting from sales of the
Specified Entities or their assets up to an aggregate amount of
$15,000,000, and cash charges related to losses from such asset
impairment charges or sales up to $1,000,000, (d) the
non-recurring, non-cash write-off of debt issuance expenses related
to the refinancing of
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Indebtedness
under the Existing Credit Agreement, such write-off not to exceed
$4,000,000, (e) non-cash charges relating to asset write-offs up to
an aggregate of $1,200,000 and (f) charges incurred by the
Borrowers in connection with unsuccessful landfill developments up
to an aggregate of $3,000,000.”
(b) The definition of
“Generally Accepted Accounting Principles or GAAP” in
Section 1.1. is hereby amended in its entirety to read as
following
“
Generally Accepted Accounting
Principles or GAAP . When used in
general, Generally Accepted Accounting Principles means principles
that are consistent with the principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year ended on the April 30, 2004, as shall be
concurred in by independent certified public accountants of
recognized standing whose report expresses an unqualified opinion
(other than a qualification regarding changes in Generally Accepted
Accounting Principles) as to financial statements in which such
principles have been applied; and when used with reference to the
Borrowers, such principles shall include (to the extent consistent
with such principles) the accounting practices reflected in the
consolidated financial statements for the year ended on the April
30, 2004.”
(c) Schedule 3
(EBITDA), referred to in the definition of Consolidated
EBITDA in Section 1.1. of the Credit Agreement is updated by
the Schedule 3 (EBITDA) as attached hereto.
2. Amendment Fee . The Borrowers shall
pay to the Administrative Agent for the account of each Lender and
its Lender Affiliates party to the Credit Agreement (collectively,
the “ Financial Institutions ”) which has
executed a counterpart signature page to this Amendment, a work fee
(“the Amendment Fee ”) in the aggregate amount
equal to 0.125% on their Commitment or Term Loan.
3. Conditions to Effectiveness .
This Amendment shall become
effective when (a) the Administrative Agent shall have received a
counterpart signature page to this Amendment duly executed and
delivered by each of the Borrowers and the Required Lenders and (b)
and the payment of the Amendment Fee.
4. Representations and Warranties
. Each of the Borrowers represents and warrants to
the Lenders and the Administrative Agent as follows:
(a)
The execution, delivery and performance of each of this Amendment
and the performance by the Borrowers of their obligations and
agreements under this Amendment and the Credit Agreement as amended
hereby and thereby are within the corporate or equivalent company
power and authority of such Borrower and have been or will be
authorized by proper corporate or equivalent company proceedings,
and do not (i) require any consent or approval of the equity
holders of such Borrower which has not been obtained, (ii)
contravene any provision of the constituent documents of such
Borrower or any law, rule or regulation applicable to such
Borrower, or (iii) contravene any provision of, or constitute an
event of default or event which, but for the requirement that time
elapse or notice be given, or both, would constitute an event of
default under, any other material agreement, instrument or
undertaking binding on such Borrower.
(b)
This Amendment and all of the terms and provisions hereof and
thereof are the legal, valid and binding obligations of such
Borrower enforceable in accordance with their respective terms
except as limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of
creditors’ rights generally, and except as the remedy
of
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specific performance or of
injunctive relief is subject to the discretion of the court before
which any proceeding therefor may be brought.
(c)
The execution, delivery and performance of this Amendment does not
require any approval or consent of, or filing or registration with,
any governmental or other agency or authority, or any other
party.
(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
(except to the extent of changes
resulting from transactions contemplated or permitted by the Credit
Agreement as amended by this Amendment and changes occurring in the
ordinary course of business which singly or in the aggregate are
not materially adverse, and to the extent that such representations
and warranties relate expressly to an earlier
date).
(e)
After giving effect to this Amendment, no Default or Event of
Default under the Credit Agreement will occur or be
continuing.
5. 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 confirmed in all
