EXHIBIT 1
SECOND AMENDMENT TO CREDIT AGREEMENT
AND COMPOSITE AMENDMENT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND COMPOSITE AMENDMENT
AGREEMENT, dated as of June 30, 2000 (the "Second Amendment"), is by and among
HI-RISE RECYCLING SYSTEMS, INC., a Florida corporation ("Hi-Rise"), IDC
ACQUISITION SUB, INC., a New York corporation ("IDC"), WILKINSON COMPANY, INC.,
an Ohio corporation ("Wilkinson"), RECYCLTECH ENTERPRISES INC., an Ontario
corporation ("Recycltech"), HESCO SALES, INC., a Florida corporation ("Hesco"),
UNITED TRUCK AND BODY CORPORATION, a Florida corporation ("United Truck"), HESCO
EXPORT CORPORATION, a Florida corporation ("Hesco Export"), BES-PAC, INC.,
formerly known as BPI ACQUISITION CORP., a South Carolina corporation ("Bes-Pac
Acquisition Corp."), and DII ACQUISITION CORP., a Connecticut corporation
("Devivo Acquisition Corp.") (Hi-Rise, IDC, Wilkinson, Recycltech, Hesco, United
Truck, Hesco Export, Bes-Pac Acquisition Corp. and Devivo Acquisition Corp. are
sometimes collectively referred to herein as the "Borrowers" and individually as
a "Borrower"); ACME CHUTE COMPANY, INC., a Florida corporation ("Acme Chute"),
DEVIVO INDUSTRIES, INC., a Connecticut corporation ("DeVivo"), ECOLOGICAL
TECHNOLOGIES, INC., a Connecticut corporation ("Eco"), KE CORPORATION, a
Delaware corporation ("Kohlman Acquisition Corp."), and AMERICAN GOOSENECK,
INC., an Arizona corporation ("American Gooseneck") (Acme Chute, DeVivo, Eco,
Kohlman Acquisition Corp. and American Gooseneck are sometimes collectively
referred to herein as the "Subsidiary Guarantors" and, together with the
Borrowers, the "Credit Parties"); GENERAL ELECTRIC CAPITAL CORPORATION, a New
York corporation (in its individual capacity, "GE Capital"), BANK OF AMERICA,
[N.A.,] successor in interest to NATIONSBANK, N.A., a national banking
association (in its individual capacity, "NationsBank"), KEY CORPORATE CAPITAL,
INC. (in its individual capacity, "KCCI"), the other Lenders signatory hereto
from time to time, GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent
for the Lenders ("Administrative Agent"), and BANK OF AMERICA, [N.A.,] successor
in interest to NATIONSBANK, N.A., as Revolver Agent for the Lenders ("Revolver
Agent" and, together with Administrative Agent, "Agents").
W I T N E S S E T H
WHEREAS, the Borrowers, GE Capital, NationsBank, KCCI and the Agents
have heretofore entered into that certain Credit Agreement, dated as of October
28, 1998 (the "Credit Agreement"), as amended by that certain First Amendment to
Credit Agreement and Composite Amendment Agreement, dated as of September 17,
1999 (the "First Amendment") (the Credit Agreement, as amended by the First
Amendment, is referred to herein as the "Credit Agreement"), pursuant to which
Credit Agreement the Lenders have extended revolving and term credit facilities
to the Borrowers of up to Sixty-One Million and No/100 Dollars ($61,000,000.00)
in the aggregate for the purpose of funding certain Acquisitions and refinancing
certain indebtedness of the Borrowers and (a) to provide working capital
financing for the Borrowers and (b) to finance capital expenditures of the
Borrowers (capitalized terms which are used herein and not defined herein shall
have the meanings given such terms in the Credit Agreement, as amended hereby);
and
WHEREAS, the Credit Parties have requested that the Lenders increase
the availability under the Revolving Credit Facility (Revolver A) on a seasonal
basis by TWO MILLION AND
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NO/100 DOLLARS ($2,000,000.00) (the "Seasonal Overline"), such that, subject to
the conditions of the Credit Agreement, as amended hereby, during the period
from and including April 30 through and including September 30 in each year, the
Maximum Amount (Revolver A) shall be equal to NINETEEN MILLION AND NO/100
DOLLARS ($19,000,000.00), and during the period from and including October 1
through and including April 29 in each year, the Maximum Amount (Revolver A)
shall be equal to SEVENTEEN MILLION AND NO/100 DOLLARS ($17,000,000.00); and
WHEREAS, as a condition to the Lenders' and the Agents' agreement to
increase the availability under the Revolving Credit Facility (Revolver A) and
to make certain additional modifications to the Credit Agreement, the Lenders
and the Agents have required that the Credit Parties enter into this Second
Amendment, which each of them has agreed so to do;
NOW THEREFORE, in consideration of the premises, and in reliance
thereon, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Preambles and Recitals. Each of the Credit Parties hereby
jointly and severally confirms the truth and accuracy of each of the preambles
and recitals set forth in the introduction to this Second Amendment and agrees
that each of the preambles and recitals set forth in the introduction to this
Second Amendment are incorporated herein by reference and are and shall be
deemed to be a part of this Second Amendment as if fully set forth herein.
Section 2. Amendments to Credit Agreement. The parties hereto hereby
agree that the Credit Agreement is hereby amended as follows:
ss.2.1. All references in the Credit Agreement to "this
Agreement," "herein," "hereof" or sections thereof shall be deemed to mean
references to the Credit Agreement as amended by this Second Amendment.
ss.2.2. The definition of "Loan Documents" is hereby amended
to include the Credit Agreement, as amended by this Second Amendment, together
with all other documents and instruments heretofore, contemporaneous herewith or
from time to time hereafter executed and delivered to or in favor of the
Administrative Agent, the Revolver Agent and/or the Lenders, or any one or more
of them, in connection with the Credit Agreement, as amended by this Second
Amendment, and/or evidencing and/or securing all or any portion of the
obligations and indebtedness of the Borrowers, and each of them, to the Lenders
and the Agents under the Credit Agreement, as amended by this Second Amendment,
together with any and all modifications, renewals and replacements therefor made
from time to time.
ss.2.3. Subsection (a) of Section 1.5 of the Credit Agreement
is hereby amended in its entirety to read as follows:
1.5 Interest and Applicable Margins.
(a) Borrowers shall pay interest to Revolver Agent, for the
ratable benefit of Lenders in accordance with the various Loans being
made by each Lender, in arrears on each applicable Interest Payment
Date, at the following rates:
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(i) with respect to the Revolving Credit Advances (Revolver A) and
Revolving Credit Advances (Revolver B), the Index Rate plus the
Applicable Revolver Index Margin per annum; (ii) with respect to the
Term Loan A, the Index Rate plus the Applicable Term Loan A Index
Margin per annum; (iii) with respect to Term Loan B, a fixed rate equal
to eleven percent (11%) per annum; (iv) with respect to the Acquisition
Loan Advances, the Index Rate plus the Applicable Acquisition Loan
Index Margin per annum; and (v) with respect to the Swing Line Loans,
the Index Rate plus the Applicable Revolver Index Margin per annum.
The Applicable Revolver Index Margin, the Applicable Term Loan
A Index Margin and the Applicable Acquisition Loan Index Margin, during
any period when the Leverage Ratio is at the applicable level set forth
below, will be equal to the corresponding rate per annum set forth
below for such Leverage Ratio:
<TABLE>
<CAPTION>
Applicable Term
Loan A Index Margin
and
Applicable Applicable Acquisition
Tier Leverage Ratio Revolver Index Margin Loan Index Margin
---- -------------- --------------------- -----------------
<S> <C> <C> <C>
IV Greater than or equal
to 3.75 to 1.00 1.00% 1.50%
III Less than 3.75 to 1.00
and greater than or equal 0.75% 1.25%
to 3.50 to 1.00
II Less than 3.50 to 1.00
and greater than or equal 0.50% 1.00%
to 3.25 to 1.00
I Less than 3.25 to 1.00 0.25% 0.75%
</TABLE>
The Applicable Revolver Index Margin, the Applicable Term Loan
A Index Margin and the Applicable Acquisition Loan Index Margin shall
be established at the end of each Fiscal Quarter (each, a
"Determination Date"). Any change in the Applicable Revolver Index
Margin, the Applicable Term Loan A Index Margin or the Applicable
Acquisition Loan Index Margin following each Determination Date shall
be determined based upon the computations set forth in the Compliance
Certificate furnished to the Agents and the Lenders pursuant to Section
(b) of Annex E, subject to review and confirmation of such computations
by the Agents, and shall be effective (the "Effective Date") commencing
on the first Business Day next following the date such Compliance
Certificate is received until the first Business Day following the date
on which a new Compliance Certificate is delivered; provided however,
if the Borrowers shall fail to deliver any such Compliance Certificate
within the time period required by Annex E, then the Applicable
Revolver Index Margin, the Applicable Term Loan A Index Margin and the
Applicable Acquisition Loan Index Margin, as the case may be, shall be
as set forth in Tier IV until the appropriate Compliance Certificate is
so delivered. From the Second Amendment Effective Date to the first
Effective Date next following September 30, 2000, the Applicable
Revolver Index Margin, the Applicable Term Loan A Index Margin and the
Applicable Acquisition Loan Index Margin, as the
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case may be, shall be as set forth in Tier IV.
The Applicable L/C Margin will be 2.5% per annum. The
Applicable Unused Revolver Fee Margin will be 0.5% per annum. The
Applicable Unused Acquisition Line Fee Margin will be 0.375% per annum.
ss.2.4. Subsection (b)(v) of Section 1.3 of the Credit
Agreement is hereby amended in its entirety to read as follows:
(v) If Hi-Rise issues Stock or any warrants, options or other
rights to acquire Stock of Hi-Rise (other than Stock of Hi-Rise and
warrants, options and other rights to acquire Stock of Hi-Rise issued
to Borrowers' employees and consultants (other than in connection with
the Engel Investment (as defined in the Second Amendment) or in
connection with any Acquisition), no later than the Business Day
following the date of receipt of the proceeds thereof, Borrowers shall
prepay the Loans in an amount equal to seventy-five percent (75%) of
all such proceeds net of underwriting discounts and commissions and
other reasonable costs paid to non-Affiliates in connection therewith,
and, to the extent approved by Administrative Agent, net of reserves
for dividend payments in respect of preferred Stock issued subsequent
to the Second Amendment Effective Date, subject, however, to such
limits as may be established by the Administrative Agent in granting
its approval of any such reserves. Any such prepayment made from the
proposed equity offering being placed by HCFP/Brenner Securities, LLC
and anticipated to close by September 30, 2000, shall be applied as
follows: first to the repayment of the Revolving Credit Advances
(Revolver B) until such time as the aggregate principal amount of the
Revolving Credit Advances (Revolver B) then outstanding has been
reduced to eighty percent (80%) of the book value of Eligible Lease
Receivables as of the date of determination, all as determined in
accordance with GAAP, less any Reserves established by Administrative
Agent and Revolver Agent at such time; second, sixty percent (60%) to
the prepayment of the Revolving Loan (Revolver A) and forty percent
(40%) to the prepayment of the Term Loan B; and thereafter in
accordance with clause (c) below.
ss.2.5. Section 1.8 of the Credit Agreement is hereby amended
in its entirety to read as follows:
1.8 Eligible Lease Receivables. Based on the most recent
Borrowing Base Certificate delivered by Borrower Representative to
Administrative Agent and Revolver Agent and on other information
available to Administrative Agent and Revolver Agent, Administrative
Agent and Revolver Agent shall in their reasonable credit judgment
determine which Lease Receivables of each Borrower shall be "Eligible
Lease Receivables" for purposes of this Agreement. In determining
whether a particular Lease Receivable of any Borrower constitutes an
Eligible Lease Receivable, Administrative Agent and Revolver Agent
shall not include any such Lease Receivable to which any of the
exclusionary criteria set forth below applies. Administrative Agent and
Revolver Agent reserve the right, at any time and from time to time
after the Closing Date, to adjust any such criteria, to establish new
criteria and to adjust advance rates with respect to Eligible Lease
Receivables, in their reasonable credit judgment, subject to the
approval of Supermajority Revolving Lenders in the case of adjustments,
or new criteria or changes in advance rates which have the effect of
making more credit available. Eligible Lease Receivables shall not
include any Lease Receivable of any
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Borrower:
(a) (i) which does not arise from the Lease of goods by such
Borrower in the ordinary course of its business pursuant to a written
Lease which provides for an implicit interest rate at least equal to
the current market rate for comparable lease transactions, equal
amortization over the life of the lease on a monthly or quarterly basis
and on terms which are otherwise consistent with the Borrowers' past
practice and industry standards, or (ii) which does not arise from the
Lease of goods by such Borrower during the period commencing on the
date Lease Receivables in respect of such Lease are first included in
the calculation of the Borrowing Base (Revolver B) and ending on the
earlier of the date which is eighty-four (84) months following the date
Lease Receivables in respect of such Lease are first included in the
calculation of the Borrowing Base (Revolver B) or the termination date
of such Lease;
(b) (i) upon which Lease Receivable or the associated Lease
such Borrower's right to receive payment is not absolute or is
contingent upon the fulfillment of any condition whatsoever or (ii) as
to which Lease Receivable or the associated Lease such Borrower is not
able to bring suit or otherwise enforce its remedies against the Lessee
through judicial process;
(c) in the event that any defense, counterclaim, setoff or
dispute is asserted as to such Lease Receivable or the associated
Lease;
(d) that is not a true and correct statement of bona fide
obligation incurred in the amount of the Lease Receivable for
merchandise leased to and accepted by the applicable Lessee;
(e) which Lease Receivable and the associated Lease (i) are
not owned by such Borrower or (ii) are subject to any right, claim,
security interest or other interest of any other Person, other than
Liens in favor of Administrative Agent, on behalf of itself, Revolver
Agent and Lenders;
(f) that arises from a Lease to any director, officer, other
employee or Affiliate of any Credit Party, or to any entity which has
any common officer or director with any Credit Party;
(g) that is the obligation of a Lessee that is the United
States government or a political subdivision thereof, or any state or
municipality or department, agency or instrumentality thereof unless
Administrative Agent and Revolver Agent, in their sole discretion, have
agreed to the contrary in writing and such Borrower, if necessary or
desirable, has complied with the Federal Assignment of Claims Act of
1940, and any amendments thereto, or any applicable state statute or
municipal ordinance of similar purpose and effect, with respect to such
obligation;
(h) (i) that is the obligation of a Lessee located in a
foreign country (other than Canada, Puerto Rico and the United States
Virgin Islands), unless payment thereof is assured by a letter of
credit assigned and delivered to Administrative Agent, satisfactory to
Administrative Agent and Revolver Agent as to form, amount and issuer;
(ii) that is the obligation of an Lessee located in
Canada, Puerto
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Rico or the United States Virgin Islands, unless (x) payment thereof is
assured by a letter of credit assigned and delivered to Administrative
Agent, satisfactory to Administrative Agent and Revolver Agent as to
form, amount and issuer, or (y) Administrative Agent and Revolver
Agent, in their sole discretion, have agreed to the contrary in writing
and such Borrower, if necessary, has taken all such action as may be
required by Administrative Agent and Revolver Agent to establish and
maintain in favor of Administrative Agent for the benefit of the
Lenders a first, perfected security interest in and to such Account;
(i) to the extent such Borrower or any Subsidiary thereof is
liable for goods sold or services rendered by the applicable Lessee to
such Borrower or any Subsidiary thereof but only to the extent of the
potential offset;
(j) which Lease Receivable or the associated Lease is in
default; provided, that, without limiting the generality of the
foregoing, a Lease Receivable and the associated Lease shall be deemed
in default upon the occurrence of any of the following:
(i) it is not paid within sixty (60) days following the
due date of any payment under the applicable Lease;
(ii) if any Lessee obligated upon such Lease Receivable
suspends business, makes a general assignment for the benefit of
creditors or fails to pay its debts generally as they come due; or
(iii) if any petition is filed by or against any Lessee
obligated upon such Lease Receivable under any bankruptcy law or any
other federal, state or foreign (including any provincial)
receivership, insolvency relief or other law or laws for the relief of
debtors;
(k) which is the obligation of a Lessee if fifty percent (50%)
or more of the dollar amount of all Lease Receivables owing by that
Lessee are ineligible under the other criteria set forth in this
Section 1.8;
(l) as to which Lease Receivable or the associated Lease
Administrative Agent's Lien thereon, on behalf of itself, Revolver
Agent and Lenders, is not a first priority perfected Lien;
(m) as to which Lease Receivable or the associated Lease any
of the representations or warranties pertaining to Lease Receivables
and Leases set forth in this Agreement or the Security Agreements is
untrue;
(n) to the extent such Lease Receivable is evidenced by a
judgment, or Instrument;
(o) to the extent such Lease Receivable is evidenced by
Chattel Paper, unless the original of such Chattel Paper has been
delivered to Administrative Agent with all necessary endorsements, free
and clear of all Liens except those in favor of the Administrative
Agent, on behalf of itself, Revolver Agent and Lenders;
(p) to the extent such Lease Receivable exceeds any credit
limit established by Administrative Agent or Revolver Agent, in their
reasonable
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discretion;
(q) to the extent that such Lease Receivable, together with
all other Lease Receivables owing by such Lessee and its Affiliates as
of any date of determination; exceed twenty percent (20%) of all
Eligible Lease Receivable;
(r) which Lease Receivable is payable in any currency other
than Dollars; or
(s) which Lease Receivable or the associated Lease is
unacceptable to Administrative Agent or Revolver Agent in their
reasonable credit judgment.
ss.2.6. Annex A to the Credit Agreement is hereby amended to
amend or add the following defined terms, each of which shall read in their
entirety as follows
"Borrowing Base (Revolver A)" shall mean, as of any date of
determination by Administrative Agent and Revolver Agent, from time to
time, an amount equal to the sum at such time of:
(a) up to eighty percent (80%) of the book value of
Eligible Accounts as determined in accordance with GAAP, less
any Reserves established by Administrative Agent and Revolver
Agent at such time; provided that, during the period from and
including April 30, 2000 through and including September 30,
2000, "Eligible Accounts shall include all Accounts owed by
Allied Waste Industries, Inc., Republic Services, Inc. and
Waste Management, Inc. notwithstanding the provisions of
Sections 1.6(l)(i), (m) or (r) to the contrary, provided that
such Accounts are not otherwise ineligible under any other
provisions of Section 1.6; and
(b)(i) at any time other than as set forth in clause
(b)(ii) hereof, up to fifty percent (50%) of the book value of
Eligible Inventory valued on a first-in, first-out basis (at
the lower of cost or market) as determined in accordance with
GAAP, less any Reserves established by Administrative Agent
and Revolver Agent at such time; and
(ii) during the period from and including April
30, 2001 through and including September 30, 2001, up to sixty
percent (60%) of the book value of Eligible Inventory valued
on a first-in, first-out basis (at the lower of cost or
market) as determined in accordance with GAAP, less any
Reserves established by Administrative Agent and Revolver
Agent at such time.
"Borrowing Base (Revolver B)" shall mean, as of any date of
determination by Administrative Agent and Revolver Agent, from time to
time, an amount equal to the sum at such time of up to ninety percent
(90%) (the "Borrowing Base (Revolver B) Advance Rate") of the book
value of Eligible Lease Receivables as determined in accordance with
GAAP, less any Reserves established by Administrative Agent and
Revolver Agent at such time; provided that, so long as no Default shall
have occurred and be continuing, if, prior to September 30, 2000,
equity investments shall have been made in Hi-Rise by investors other
than any Affiliate or shareholder of Hi-Rise in existence as of the
Second Amendment Effective Date in an amount which, after giving effect
to the application of such investments to the
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repayment of the Revolving Credit Advances (Revolver B) in accordance
with the provisions of Section 1.3(b)(v), result in the reduction of
the aggregate principal amount of the Revolving Credit Advances
(Revolver B) then outstanding to eighty percent (80%) of the book value
of Eligible Lease Receivables as of the date of such determination, all
as determined in accordance with GAAP, less any Reserves established by
Administrative Agent and Revolver Agent at such time (the "Equity
Investment Trigger"), then the Borrowing Base (Revolver B) Advance Rate
shall be reduced to eighty percent (80%) as of the date the Equity
Investment Trigger occurs, and shall thereafter be reduced by an
additional one (1%) on the same day of each calendar month thereafter
until the Borrowing Base (Revolver B) Advance Rate shall have been
reduced to seventy-five percent (75%); provided further, that, if the
Equity Investment Trigger has not occurred on or prior to September 30,
2000, then the Borrowing Base (Revolver B) Advance Rate shall be
reduced by two percent (2%) per month (or one percent (1%) in the case
of the final reduction), commencing on October 1, 2000, and continuing
monthly on the first day of each calendar month thereafter until the
Borrowing Base (Revolver B) Advance Rate shall have been reduced to
seventy-five percent (75%); and provided further, that, without regard
to whether the Equity Investment Trigger has occurred, the Borrowing
Base (Revolver B) Advance Rate shall be reduced (which, by operation of
this proviso, shall not be less than eighty percent (80%)) as of the
date of each repayment of the Revolving Credit Advances (Revolver B)
made pursuant to the provisions of Section 1.3(b)(v) to an amount
(expressed as a percentage) equal to the percentage which the aggregate
principal amount of the Revolving Credit Loans (Revolver B) then
outstanding (after giving effect to such repayment) bears to the book
value of Eligible Lease Receivables as of such date of determination,
determined in accordance with GAAP, less any Reserves established by
Administrative Agent and Revolver Agent at such time.
"Commitments" shall mean, as of the date of any determination
thereof, (a) as to any Lender, the aggregate of such Lender's Revolving
Loan Commitment (Revolver A) (including without duplication the Swing
Line Lender's Swing Line Commitment (Revolver A) as a subset of its
Revolving Loan Commitment (Revolver A)), Revolving Loan Commitment
(Revolver B) (including without duplication the Swing Line Lender's
Swing Line Commitment (Revolver B) as a subset of its Revolving Loan
Commitment (Revolver B)), Term Loan Commitment (Term Loan A), Term Loan
Commitment (Term Loan B) and Acquisition Loan Commitment as set forth
on Annex J to the Agreement or in the most recent Assignment Agreement
executed by such Lender and (b) as to all Lenders, the aggregate of all
Lenders' Revolving Loan Commitments (Revolver A) (including without
duplication the Swing Line Lender's Swing Line Commitment (Revolver A)
as a subset of its Revolving Loan Commitment (Revolver A)), Revolving
Loan Commitments (Revolver B) (including without duplication the Swing
Line Lender's Swing Line Commitment (Revolver B) as a subset of its
Revolving Loan Commitment (Revolver B)), Term Loan Commitments (Term
Loan A), Term Loan Commitments (Term Loan B) and Acquisition Loan
Commitments, which aggregate commitment shall be Sixty-Three Million
and No/100 Dollars ($63,000,000.00), as to each of clauses (a) and (b),
as such Commitments may be reduced, amortized or adjusted from time to
time in accordance with the Agreement.
"Index Rate" shall mean, for any day, a floating rate equal to
the higher of (i) the rate publicly quoted from time to time by The
Wall Street Journal as the "base rate on corporate loans at large U.S.
money center commercial banks" (or, if
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The Wall Street Journal ceases quoting a base rate of the type
described, the highest per annum rate of interest published by the
Federal Reserve Board in Federal Reserve statistical release H.15 (519)
entitled "Selected Interest Rates" as the Bank prime loan rate or its
equivalent), or (ii) the Federal Funds Rate plus fifty (50) basis
points per annum. Each change in any interest rate provided for in the
Agreement based upon the Index Rate shall take effect at the time of
such change in the Index Rate.
"Revolving Loan Commitment (Revolver A)" shall mean, as of the
date of any determination thereof, (a) as to any Lender, the aggregate
commitment of such Lender to make Revolving Credit Advances (Revolver
A) (including without duplication Swing Line Advances (Revolver A) as a
subset of the Swing Line Lender's Revolving Loan Commitment (Revolver
A)) and/or incur Letter of Credit Obligations as set forth on Annex J
to the Agreement or in the most recent Assignment Agreement executed by
such Lender and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Advances (Revolver A) (including
without duplication Swing Line Advances (Revolver A) as a subset of the
Swing Line Lender's Revolving Loan Commitment (Revolver A)) and/or
incur Letter of Credit Obligations, which aggregate commitment shall be
Nineteen Million and No/100 Dollars ($19,000,000.00), as such amount
may be adjusted, if at all, from time to time in accordance with the
Agreement.
"Second Amendment" shall mean that certain Second Amendment to
Credit Agreement and Composite Amendment Agreement, dated as of the
Second Amendment Effective Date, by and among the Borrowers, the
Subsidiary Guarantors, the Lenders and the Agents.
"Second Amendment Effective Date" shall mean June 30, 2000.
ss.2.7. Annex G to the Credit Agreement is hereby amended in
its entirety to read as Annex G attached hereto and made a part hereof.
ss.2.8. Annex J to the Credit Agreement is hereby amended in
its entirety to read as Annex J attached hereto and made a part hereof.
ss.2.9. Exhibit 4.1(b) to the Credit Agreement is hereby
amended in its entirety to read as Exhibit 4.1(b) attached hereto and made a
part hereof.
Section 3. Composite Amendment.
ss.3.1. All references in each of the Loan Documents to the
"Agreement" and the "Credit Agreement" shall mean the Credit Agreement, as
amended by this Second Amendment, and all modifications, amendments and
extensions therefor from time to time.
ss.3.2. The parties hereto agree that the Collateral
Documents, and each of them, secure, in addition to all obligations presently
secured thereby, the full and timely payment performance by the Borrowers, and
each of them, of their respective obligations and indebtedness under and in
respect of the Credit Agreement, as amended by this Second
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Amendment, and each of the Notes, as herein contemplated to be consolidated,
amended and restated, as the case may be, in each case whether presently
existing or hereafter created or incurred, all of which obligations are and
shall be equally secured with and have the same priority as the obligations
originally secured by the Collateral Documents, and each of them, provided that
nothing herein shall be deemed or construed to mean that the Collateral
Documents by their own terms do not presently secure such obligations and
indebtedness.
Section 4. Representations and Warranties; No Defaults. Each of the
Credit Parties hereby jointly and severally represents and warrants that each of
the representations and warranties of the Credit Parties, and each of them, set
forth in the Credit Agreement and in each of the other Loan Documents, in each
case as amended by this Second Amendment, is true and correct as of the date
hereof and no Default or Event of Default has occurred and is continuing under
the Credit Agreement or any of the other Loan Documents, in each case as amended
by this Second Amendment. Each of the Credit Parties hereby jointly and
severally ratifies and confirms each of their respective obligations and
indebtedness under the Credit Agreement and each of the other Loan Documents, in
each case as amended by this Second Amendment, and represents and warrants to
the Lenders and the Agents that none of them has or claims any defenses, offsets
or counterclaims to any of their respective obligations and indebtedness under
the Credit Agreement or any of the other Loan Documents, in each case as amended
by this Second Amendment.
Section 5. Conditions Precedent. The following conditions shall be
conditions precedent to the effectiveness of this Second Amendment and the
amendments contemplated herein, each of which shall have been satisfied in the
sole opinion of the Lenders and the Agents and the Administrative Agent's
counsel:
(a) Second Amendment. The Lenders and the Agents shall have received this
Second Amendment, duly executed and completed by each of the Credit
Parties.
(b) Amended and Restated Revolving Credit Notes (Revolver A). Each of the
Lenders shall have received their respective Amended and Restated
Revolving Credit Note (Revolver A) as follows:
1. Amended and Restated Revolving Credit Note (Revolver A), dated
as of June 30, 2000, made by Borrowers payable to the order of
GE Capital in the original principal amount of $5,343,750.00.
2. Amended and Restated Revolving Credit Note (Revolver A), dated
as of June 30, 2000, made by Borrowers payable to the order of
NationsBank in the original principal amount of $7,956,250.00.
3. Amended and Restated Revolving Credit Note (Revolver A), dated
as of June 30, 2000, made by Borrowers payable to the order of
KCCI in the original principal amount of $5,700,000.00.
10
<PAGE>
(c) Equity Contribution. The Agents and the Lenders shall have received
evidence to their satisfaction that Donald Engel shall have made an
equity investment in Hi-Rise of at least $500,000.00 (the "Engel
Investment"). Hi-Rise shall not be permitted to return or repay (or set
aside reserves therefor) all or any portion of the Engel Investment
prior to October 30, 2000 and, thereafter, shall be permitted to return
or repay the Engel Investment only to the extent that (i) during the
period from the Second Amendment Effective Date to and including the
date of such return or repayment of the Engel Investment, no Default or
Event of Default shall have occurred, and (ii) after giving effect to
the return or repayment of the Engel Investment, the Borrowers shall
have Borrowing Availability of at least $2,500,000.00. [The Agent and
the Lenders hereby consent, notwithstanding the provisions of Section
6.5 of the Credit Agreement to the contrary, in connection with the
Engel Investment as contemplated herein, that such equity contribution
made be evidenced by the purchase by Donald Engel of preferred stock of
the Borrower providing for a dividend of not more than 13% per annum,
provided that the payment of such dividend shall be subject to the
conditions set forth in this subsection (c) for the return or repayment
of the Engel Investment. The foregoing consent is expressly limited to
the matters stated herein. The foregoing consent shall not be deemed to
constitute a waiver of (a) any further non-compliance with the
provisions of Section 6.5 of the Credit Agreement, or (b) the
non-compliance by any of the Credit Parties with any other term or
provision of the Credit Agreement or any of the other Loan Documents,
nor shall it be deemed, to extend to or affect compliance by any of the
Credit Parties with any other term or provision of the Credit Agreement
or any of the other Loan Documents.]
(d) Litigation. The Administrative Agent and the Lenders shall have
received a certificate signed by the Credit Parties, stating that no
litigation, investigation or proceeding before or by an arbitrator or
Governmental Authority is continuing or threatened against the Credit
Parties, or any of them, or any of their officers, directors or
Affiliates (i) with respect to the Credit Agreement, as amended by this
Second Amendment, the Notes, or any of the other Loan Documents, in
each case as amended by this Second Amendment, or any of the
transactions contemplated hereby or thereby, or (ii) which could have a
Material Adverse Effect on the business, prospects or financial
condition of the Credit Parties, or any of them.
(e) No Default. No Default or Event of Default shall have occurred and be
continuing after giving effect to the consummation of the transactions
contemplated in this Second Amendment.
(f) Supporting Documents. The Agents and the Lenders shall have received
each of the other certificates, documents, opinions and other
instruments described in the Closing Documents List attached hereto as
Schedule I and made a part hereof and all additional opinions,
documents and certificates that the Lenders, the Administrative Agent
or the Administrative Agent's counsel may reasonably require.
(g) Payment of Fees. The Borrowers shall have paid the Administrative Agent
for the pro rata benefit of the Lenders in accordance with their
respective Pro Rata Shares a non-refundable structuring fee equal to
$165,000.00, and shall have reimbursed the
11
<PAGE>
Administrative Agent for all other fees, costs and expenses of closing
presented as of the Second Amendment Effective Date.
All such opinions, certificates and documents specified in this Section 6 shall
be satisfactory in form and substance to the Lenders, the Administrative Agent
and the Administrative Agent's counsel.
Section 6. Effective Date. Upon the execution of this Second Amendment
by each of the parties hereto and the satisfaction of each of the conditions
precedent listed in Section 6 above, this Second Amendment shall be deemed to be
effective and the Credit Agreement and each of the other Loan Documents shall be
amended as set forth above, all as of the date set forth above.
Section 7. Miscellaneous. This Second Amendment shall be binding upon
and inure to the benefit of each of the Credit Parties, the Lenders and the
Agents and their respective heirs, executors, personal representatives,
successors and permitted assigns. This Second Amendment may be executed in any
number of counterparts, with each counterpart constituting an original, but
altogether constituting but one and the same instrument. Except as expressly
amended hereby, all terms and conditions contained in the Credit Agreement and
each of the other Loan Documents shall remain unchanged and in full force and
effect in accordance with it terms. Without limiting the generality of any of
the provisions of this Second Amendment, nothing contained herein shall in any
way invalidate, impair or release any covenant, condition, agreement or
stipulation contained in the Credit Agreement or any other Loan Document, shall
be deemed or construed to constitute a novation, satisfaction or refinancing of
all or any portion of the obligations and indebtedness evidenced and/or secured
by the Credit Agreement or any of the other Loan Documents or in any manner
affect or impair the validity, lien or priority of the Credit Agreement or any
of the other Loan Documents, in each case as amended by the this Second
Amendment.
Section 8. Construction. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of laws thereunder.
Section 9. Severability. In the event any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Second
Amendment or any part hereof, all of which are inserted conditionally on their
being valid in law, shall be declared invalid, this Second Amendment shall be
construed as if such word or words, phrase or phrases, sentence or sentences,
section or sections, or subsection or subsections, had not been inserted.
Section 10. Expenses. Each of the Credit Parties hereby jointly and
severally agrees to pay to the Administrative Agent all fees and costs incurred
or to be incurred by the Administrative Agent arising out of or in connection
with this Second Amendment, and/or any of the documents or instruments executed
or contemplated to be executed in conjunction with this Second Amendment,
including, without limitation, the fees and expenses of legal counsel,
appraisers, independent public accountants and other outside experts retained by
the Administrative Agent, in connection with the negotiation, documentation,
closing, administration and enforcement of this Second Amendment and/or any of
the documents and instruments
12
<PAGE>
executed in connection with this Second Amendment.
Section 11. JURY TRIAL WAIVER. EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS SECOND AMENDMENT, THE CREDIT AGREEMENT, THE
LOAN DOCUMENTS AND/OR ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT EXECUTED IN
CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE LENDERS AND THE AGENTS ENTERING INTO THIS
SECOND AMENDMENT AND MAKING THE FINANCIAL ACCOMMODATIONS TO THE CREDIT PARTIES
CONTEMPLATED HEREIN.
Section 12. RELEASE. IN CONSIDERATION OF THE ACCOMMODATIONS PROVIDED
HEREIN, EACH OF THE CREDIT PARTIES HEREBY UNCONDITIONALLY, IRREVOCABLY AND
FOREVER RELEASES, ACQUITS AND DISCHARGES EACH OF THE LENDERS AND THE AGENTS AND
EACH OF THEIR RESPECTIVE AFFILIATES AND EACH OF THE LENDERS' AND AGENTS' (AND
EACH OF THE LENDER'S AND THE AGENTS' AFFILIATES') OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS AND COUNSEL FROM ANY AND ALL CLAIMS, DEMANDS AND CAUSES OF
ACTION THAT ANY OF THEM HAD, NOW HAS OR MAY IN THE FUTURE HAVE AGAINST THE ANY
ONE OR MORE OF THE LENDERS OR THE AGENTS OR ANY OF THEIR RESPECTIVE AFFILIATES
OR ANY OF THE LENDERS' OR THE AGENTS' (OR ANY OF THE LENDER'S OR THE AGENTS'
AFFILIATES') AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR COUNSEL FOR
THE ACTS OR OMISSIONS OF ANY OF THE FOREGOING PARTIES FROM THE BEGINNING OF TIME
THROUGH, TO AND INCLUDING THE EFFECTIVE DATE OF THIS SECOND AMENDMENT,
INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR CONNECTED IN ANY
MANNER WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE CREDIT AGREEMENT, AS
AMENDED BY THIS SECOND AMENDMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
IN EACH CASE AS AMENDED BY THIS SECOND AMENDMENT, AS THE CASE MAY BE.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Second Amendment to be to be dated for reference as of the date first above
written, but have in fact duly executed and delivered this Second Amendment this
30th day of June, 2000.
BORROWERS: HI-RISE RECYCLING SYSTEMS, INC., a Florida
corporation
IDC ACQUISITION SUB, INC., a New York
corporation
WILKINSON COMPANY, INC., an Ohio
corporation
RECYCLTECH ENTERPRISES INC., an Ontario
corporation
HESCO SALES, INC., a Florida corporation
UNITED TRUCK AND BODY CORPORATION, a
Florida corporation
13
<PAGE>
HESCO EXPORT CORPORATION, a Florida
corporation
BES-PAC, INC., formerly known as BPI
ACQUISITION CORP., a South Carolina
corporation
DII ACQUISITION CORP., a Connecticut
corporation
By: /S/ J. GARY MCALPIN
------------------------------------------
Name: J. Gary McAlpin
Title:
SUBSIDIARY GUARANTORS: ACME CHUTE COMPANY, INC., a Florida
corporation
DEVIVO INDUSTRIES, INC., a Connecticut
corporation
ECOLOGICAL TECHNOLOGIES, INC., a
Connecticut corporation
KE CORPORATION, a Delaware corporation
AMERICAN GOOSENECK, INC., an Arizona
corporation
By: /S/ J. GARY MCALPIN
------------------------------------------
Name: J. Gary McAlpin
Title:
ADMINISTRATIVE AGENT: GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: /S/ TIMOTHY PERUSEK
------------------------------------------
Name: Timothy B. Perusek
Title: Senior Risk Mannager
REVOLVER AGENT: BANK OF AMERICA, [N.A.,] successor in
interest to NATIONSBANK, N.A.,
14
<PAGE>
as Revolver Agent
By: /S/ CHRIS A. FIELDS
------------------------------------------
Name: Chris A. Fields
Title: Vice President
LENDERS: GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------------------------
Name:
Title:
BANK OF AMERICA, [N.A.,] successor in
interest to NATIONSBANK, N.A.
By: /S/ CHRIS A. FIELDS
------------------------------------------
Name: Chris A. Fields
Title: Vice President
KEY CORPORATE CAPITAL, INC.
By: /S/ J. ERIC
------------------------------------------
Name: J. Eric
Title: Assistant Vice President
15
<PAGE>
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
The foregoing instrument was acknowledged before me this 30th day of
June, 2000, by Gary McAlpin, who personally appeared before me, being an officer
of each of HI-RISE RECYCLING SYSTEMS, INC., a Florida corporation, IDC
ACQUISITION SUB, INC., a New York corporation, WILKINSON COMPANY, INC., an Ohio
corporation, RECYCLTECH ENTERPRISES INC., an Ontario corporation, HESCO SALES,
INC., a Florida corporation, UNITED TRUCK AND BODY CORPORATION, a Florida
corporation, HESCO EXPORT CORPORATION, a Florida corporation, BES-PAC, INC.,
formerly known as BPI ACQUISITION CORP., a South Carolina corporation, DII
ACQUISITION CORP., a Connecticut corporation, ACME CHUTE COMPANY, INC., a
Florida corporation, DEVIVO INDUSTRIES, INC., a Connecticut corporation,
ECOLOGICAL TECHNOLOGIES, INC., a Connecticut corporation, KE CORPORATION, a
Delaware corporation, and AMERICAN GOOSENECK, INC., an Arizona corporation, on
behalf of each such corporation, and he acknowledged that he signed and
delivered the foregoing instrument as his own free will and voluntary act for
the purposes therein set forth. The above-named individual has produced the
following identification which is current or has been issued within the past
five years and bears a serial or other identifying number and did (did not) take
an oath:
[ ] the sworn written statement of a credible witness (who is presently
known to the Notary) that the signer is personally known to the
witness;
[X] a driver's license or non-driver's ID issued by Florida or any other
U.S. state;
[ ] a U.S. passport or a foreign passport stamped by the U.S. Immigration
and Naturalization Service;
[ ] a U.S. military ID;
[ ] a Canadian or Mexican driver's license issued by an official agency;
[ ] for an inmate in custody, an ID issued by the Florida Department of
Corrections;
/S/ LINDA M. BEETSCHEN
--------------------------------------------
Print Name: Linda M. Beetschen
---------------------------------
NOTARY PUBLIC
Commission Number:
--------------------------
My Commission Expires: 12/25/01
----------------------
(Notarial Seal)
16
<PAGE>
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
The foregoing instrument was acknowledged before me this 30th day of
June, 2000, by Timothy Perusek, who personally appeared before me, being the
Duly Authorized Signatory of GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation, on behalf of said corporation, and he acknowledged that he signed
and delivered the foregoing instrument as his own free will and voluntary act
for the purposes therein set forth. The above-named individual has produced the
following identification which is current or has been issued within the past
five years and bears a serial or other identifying number and did (did not) take
an oath:
[ ] the sworn written statement of a credible witness (who is presently
known to the Notary) that the signer is personally known to the
witness;
[X] a driver's license or non-driver's ID issued by Florida or any other
U.S. state;
[ ] a U.S. passport or a foreign passport stamped by the U.S. Immigration
and Naturalization Service;
[ ] a U.S. military ID;
[ ] a Canadian or Mexican driver's license issued by an official agency;
[ ] for an inmate in custody, an ID issued by the Florida Department of
Corrections;
/S/ LINDA M. BEETSCHEN
--------------------------------------------
Print Name: Linda M. Beetschen
---------------------------------
NOTARY PUBLIC
Commission Number:
--------------------------
My Commission Expires: 12/25/01
----------------------
(Notarial Seal)
17
<PAGE>
STATE OF GEORGIA )
) ss.
COUNTY OF DEKALB )
The foregoing instrument was acknowledged before me this 30th day of
June, 2000, by Chris A. Fields, who personally appeared before me, being
the Vice President of BANK OF AMERICA, [N.A.,] successor in
interest to NATIONSBANK, N.A., a national banking association, on behalf of said
association, and he acknowledged that he signed and delivered the foregoing
instrument as his own free will and voluntary act for the purposes therein set
forth. The above-named individual has produced the following identification
which is current or has been issued within the past five years and bears a
serial or other identifying number and did (did not) take an oath:
[ ] the sworn written statement of a credible witness (who is presently
known to the Notary) that the signer is personally known to the
witness;
[X] a driver's license or non-driver's ID issued by Florida or any other
U.S. state;
[ ] a U.S. passport or a foreign passport stamped by the U.S. Immigration
and Naturalization Service;
[ ] a U.S. military ID;
[ ] a Canadian or Mexican driver's license issued by an official agency;
[ ] for an inmate in custody, an ID issued by the Florida Department of
Corrections;
/S/ JANET M. PEREZ
--------------------------------------------
Print Name: Janet M. Perez
---------------------------------
NOTARY PUBLIC
Commission Number:
--------------------------
My Commission Expires: 10/29/2000
----------------------
(Notarial Seal)
18
<PAGE>
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
The foregoing instrument was acknowledged before me this 30th day of
June, 2000, by ______________________, who personally appeared before me, being
the Asst. Vice President of KEY CORPORATE CAPITAL, INC., on behalf of
said corporation, and he acknowledged that he signed and delivered the foregoing
instrument as his own free will and voluntary act for the purposes therein set
forth. The above-named individual has produced the following identification
which is current or has been issued within the past five years and bears a
serial or other identifying number and did (did not) take an oath:
[X] the sworn written statement of a credible witness (who is presently
known to the Notary) that the signer is personally known to the
witness;
[ ] a driver's license or non-driver's ID issued by Florida or any other
U.S. state;
[ ] a U.S. passport or a foreign passport stamped by the U.S. Immigration
and Naturalization Service;
[ ] a U.S. military ID;
[ ] a Canadian or Mexican driver's license issued by an official agency;
[ ] for an inmate in custody, an ID issued by the Florida Department of
Corrections;
/S/ LAURIE E. FRONEK
--------------------------------------------
Print Name: Laurie E. Fronek
---------------------------------
NOTARY PUBLIC
Commission Number:
--------------------------
My Commission Expires: 7/15/04
----------------------
(Notarial Seal)
19
<PAGE>
ANNEX G (Section 6.10)
to
CREDIT AGREEMENT
FINANCIAL COVENANTS
Borrowers shall not breach or fail to comply with any of the
following financial covenants, each of which shall be calculated in accordance
with GAAP consistently applied:
(a) Maximum Capital Expenditures. Borrowers and their
Subsidiaries on a consolidated basis shall not make Capital Expenditures during
any Fiscal Year that exceed in the aggregate $1,000,000.00, or, in any event, if
after giving effect thereto, any Default or Event of Default shall have occurred
and be continuing.
(b) Minimum Fixed Charge Coverage Ratio. Borrowers and their
Subsidiaries shall have on a consolidated basis at the end of each Fiscal
Quarter, a Fixed Charge Coverage Ratio for the 12-month period then ended of not
less the following:
<TABLE>
<S> <C>
0.90 to 1.00 for the Fiscal Quarter ending June 30, 2000;
0.90 to 1.00 for the Fiscal Quarter ending September 30, 2000;
1.05 to 1.00 for the Fiscal Quarter ending December 31, 2000;
1.05 to 1.00 for the Fiscal Quarter ending March 31, 2001;
1.10 to 1.00 for the Fiscal Quarter ending June 30, 2001;
1.20 to 1.00 for the Fiscal Quarter ending September 30, 2001; and
1.25 to 1.00 for the Fiscal Quarter ending December 31, 2001 and for each
Fiscal Quarter ending thereafter.
</TABLE>
(c) Maximum Leverage Ratio. Borrowers and their Subsidiaries
on a consolidated basis shall have, at the end of each Fiscal Quarter set forth
below, a Leverage Ratio as of the last day of such Fiscal Quarter and for the
12-month period then ended of not more than the following:
<TABLE>
<S> <C>
5.75 to 1.00 for the Fiscal Quarter ending June 30, 2000;
5.00 to 1.00 for the Fiscal Quarter ending September 30, 2000;
4.10 to 1.00 for the Fiscal Quarter ending December 31, 2000;
3.80 to 1.00 for the Fiscal Quarter ending March 31, 2001;
3.35 to 1.00 for the Fiscal Quarter ending June 30, 2001;
3.05 to 1.00 for the Fiscal Quarter ending September 30, 2001; and
2.75 to 1.00 for the Fiscal Quarter ending December 31, 2001 and for each
Fiscal Quarter ending thereafter.
</TABLE>
(d) Total Indebtedness to Capitalization. Borrowers and their
Subsidiaries on a consolidated basis shall have, at the end of each Fiscal
Quarter set forth below, a ratio as of the last day of such Fiscal Quarter of
aggregate Indebtedness to Capitalization of not more than the following:
<TABLE>
<S> <C>
0.65 to 1.00 for the Fiscal Quarter ending June 30, 2000;
0.65 to 1.00 for the Fiscal Quarter ending September 30, 2000;
0.60 to 1.00 for the Fiscal Quarter ending December 31, 2000;
</TABLE>
20
<PAGE>
<TABLE>
<S> <C>
0.60 to 1.00 for the Fiscal Quarter ending March 31, 2001;
0.55 to 1.00 for the Fiscal Quarter ending June 30, 2001;
0.55 to 1.00 for the Fiscal Quarter ending September 30, 2001; and
0.50 to 1.00 for the Fiscal Quarter ending December 31, 2001 and for each
Fiscal Quarter ending thereafter.
</TABLE>
Unless otherwise specifically provided herein, any accounting
term used in the Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be computed
in accordance with GAAP consistently applied. That certain items or computations
are explicitly modified by the phrase "in accordance with GAAP" shall in no way
be construed to limit the foregoing. If any "Accounting Changes" (as defined
below) occur and such changes result in a change in the calculation of the
financial covenants, standards or terms used in the Agreement or any other Loan
Document, then Borrowers, Administrative Agent and Lenders agree to enter into
negotiations in order to amend such provisions of the Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating Borrowers' and their Subsidiaries' financial condition
shall be the same after such Accounting Changes as if such Accounting Changes
had not been made; provided, however, that the agreement of Requisite Lenders to
any required amendments of such provisions shall be sufficient to bind all
Lenders. "Accounting Changes" means (a) changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants (or successor thereto or any agency with similar
functions), (b) changes in accounting principles concurred in by any Borrower's
certified public accountants; (c) purchase accounting adjustments under A.P.B.
16 and/or 17 and EITF 88-16, and the application of the accounting principles
set forth in FASB 109, including the establishment of reserves pursuant thereto
and any subsequent reversal (in whole or in part) of such reserves; and (d) the
reversal of any reserves established as a result of purchase accounting
adjustments. All such adjustments resulting from expenditures made subsequent to
the Closing Date (including capitalization of costs and expenses or payment of
pre-Closing Date liabilities) shall be treated as expenses in the period the
expenditures are made and deducted as part of the calculation of EBITDA in such
period. If Administrative Agent, Borrowers and Requisite Lenders agree upon the
required amendments, then after appropriate amendments have been executed and
the underlying Accounting Change with respect thereto has been implemented, any
reference to GAAP contained in the Agreement or in any other Loan Document
shall, only to the extent of such Accounting Change, refer to GAAP, consistently
applied after giving effect to the implementation of such Accounting Change. If
Administrative Agent, Borrowers and Requisite Lenders cannot agree upon the
required amendments within thirty (30) days following the date of implementation
of any Accounting Change, then all Financial Statements delivered and all
calculations of financial covenants and other standards and terms in accordance
with the Agreement and the other Loan Documents shall be prepared, delivered and
made without regard to the underlying Accounting Change.
21
<PAGE>
ANNEX J (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
Lenders:
GE Capital:
Revolving Loan Commitment (Revolver A):
During the period from and including April 30
through and including September 30 $ 5,343,750.00
During the period from and including October 1
through and including April 29 $ 4,781,250.00
Revolving Loan Commitment (Revolver B): $ 3,150,000.00
Term Loan Commitment (Term Loan A): $ 1,050,000.00
[(Current principal balance outstanding: $816,667.00)]
Term Loan Commitment (Term Loan B): $ 6,300,000.00
Acquisition Loan Commitment: $ 5,625,000.00
NationsBank:
Revolving Loan Commitment (Revolver A) (including a Swing
Line Commitment (Revolver A) of $1,000,000.00):
During the period from and including April 30
through and including September 30 $ 7,956,250.00
During the period from and including October 1
through and including April 29 $ 7,118,750.00
Revolving Loan Commitment (Revolver B):
[(including a Swing Line Commitment (Revolver B)
of $1,000,000.00):] $ 3,150,000.00
Term Loan Commitment (Term Loan A): $ 3,150,000.00
[(Current principal balance outstanding: $2,400,000.00)]
Term Loan Commitment (Term Loan B): $ - 0 -
Acquisition Loan Commitment: $ 8,375,000.00
KCCI:
22
<PAGE>
Revolving Loan Commitment (Revolver A):
During the period from and including April 30
through and including September 30 $ 5,700,000.00
During the period from and including October 1
through and including April 29 $ 5,100,000.00
Revolving Loan Commitment (Revolver B): $ 2,700,000.00
Term Loan Commitment (Term Loan A): $ 1,800,000.00
[(Current principal balance outstanding: $1,400,000.00)]
Term Loan Commitment (Term Loan B): $ 2,700,000.00
Acquisition Loan Commitment: $ 6,000,000.00
23
<PAGE>
EXHIBIT 4.1(b)
TO
CREDIT AGREEMENT
FORM OF BORROWING BASE CERTIFICATE
HI-RISE RECYCLING SYSTEMS, INC.
AND ITS SUBSIDIARIES
Pursuant to the Credit Agreement, dated as of October 28, 1998 (as amended from
time to time, the "Credit Agreement"; the capitalized terms defined therein
being used herein as therein defined) among Hi-Rise Recycling Systems, Inc., IDC
Acquisition Sub, Inc., Wilkinson Company, Inc., Recycltech Enterprises Inc,
Hesco Sales, Inc., United Truck and Body Corporation, Hesco Export Corporation,
BPI Acquisition Corp., and DII Acquisition Corp., General Electric Capital
Corporation, Bank of America, [N.A.,] successor in interest to NationsBank,
N.A., Key Corporate Capital, Inc., the other Lenders signatory thereto from time
to time (together with General Electric Capital Corporation, Bank of America,
[N.A.,] successor in interest to NationsBank, N.A. and Key Corporate Capital,
Inc,, the "Lenders"), General Electric Capital Corporation, as Administrative
Agent for the Lenders ("Administrative Agent"), and NationsBank, NA., as
Revolver Agent for the Lenders ("Revolver Agent"), the undersigned Borrower
Representative certifies for itself and each of the other Borrowers that as of
the close of business on the date set forth below, the Borrowing Base (Revolver
A) is computed as set forth below.
The undersigned represents and warrants for Itself and each of the other
Borrowers that this Borrowing Base Certificate is a true and correct statement
of, and that the information contained herein is true and correct in all
material respects regarding, the status of Eligible Accounts, Eligible Inventory
and Eligible Lease Receivables and that the amounts reflected herein are in
compliance with the provisions of the Credit Agreement and the Appendices
thereto. The undersigned further represents and warrants for itself and each of
the other Borrowers that there is no Default or Event of Default and all
representations and warranties contained in the Credit Agreement and other Loan
Documents are true and correct as of the date of this Borrowing Base
Certificate, except to the extent that such representations or warranties
expressly relate to an earlier date and except for changes therein expressly
permitted or contemplated by the Credit Agreement or any other Loan Document.
The undersigned understands that the Revolving Lenders will extend loans in
reliance upon the information contained herein. In the event of a conflict
between the following summary of eligibility criteria and ss.ss. 1.6, 1.7 and
1.8 of the Credit Agreement, the Credit Agreement shall govern. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
specified in the Credit Agreement.
24
<PAGE>
<TABLE>
<CAPTION>
BORROWING BASE (REVOLVER A)
Hi-Rise Bes-Pac
------- -------
<S> <C> <C>
AR Balance (As of: ________) $_________ $_________
Less: Balances over 90 Days from Invoice $_________ $_____
Credit Balances > 90 Days from Invoice $_________ $_________
Insiders and Related Parties $_________ $_________
Cash/COD Accounts $_________ $_________
Contra Accounts $_________ $_________
Cross-Aged at 50.0% $_________ $_________
Consignments Out $_________ $_________
Finance Charges $_________ $_________
Other: _________________ $_________ $_________
Other: _________________ $_________ $_________
Total Ineligible Accounts Receivable $_________ $_________
Eligible Accounts Receivable $_________ $_________
Eligible Accounts Receivable at 80.0% A1 $_________ A2 $_________
Inventory Balance (As of ________) $_________ $_________
Less: Work-In-Process $_________ $_________
Slow Moving/Obsolete $_________ $_________
Consignment: $_________ $_________
Other: _________________ $_________ $_________
Other: _________________ $_________ $_________
Total Ineligible Inventory $_________ $_________
Eligible Inventory $_________ $_________
Eligible Inventory at 50.0% B1 $_________ B2 $_________
Borrowing Base Availability (Revolver A) (A1+B1+A2+B2)$_________
BORROWING BASE (REVOLVER B)
Lease Receivable Balance (As of ________) $_________
Less: Unearned Income Balance $_________
Other: _________________ $_________
Other: _________________ $_________
Total Ineligible Lease Receivable $_________
Eligible Lease Receivable $_________
</TABLE>
--------------------
1 During the period from and including April 30, 2000 through and
including September 30, 2000, "Eligible Accounts shall include all Accounts owed
by Allied Waste Industries, Inc., Republic Services, Inc. and Waste Management,
Inc. notwithstanding the provisions of Sections 1.6(l)(i), (m) or (r) to the
contrary, provided that none of the other exclusionary criteria in Section 1.6
apply to any such Accounts.
2 During the period from and including April 30, 2001 through and
including September 30, 2001, up to sixty percent (60%) of the book value of
Eligible Inventory valued on a first-in, first-out basis (at the lower of cost
or market) as determined in accordance with GAAP, less any Reserves established
by Administrative Agent and Revolver Agent at such time
25
<PAGE>
<TABLE>
<S> <C> <C>
Eligible Lease Receivable at 90.0% A $_________
Reserve - Customer Deposits B $_________
Reserve - Other: _______________ C $_________
Borrowing Base Availability (Revolver B) (A-B-C) $_________
</TABLE>
IN WITNESS WHEREOF, the undersigned Borrower Representative has duly
executed and delivered this Borrowing Base Certificate on behalf of itself and
each of the other Borrowers as of the date first above written.
HI-RISE RECYCLING SYSTEMS, INC., a Florida
Corporation
By: ________________________________
Duly Authorized Signatory
--------------------
3 The advance rate against Eligible Lease Receivables of ninety percent
(90%) is subject to adjustment as more fully set forth in the definition of
"Borrowing Base (Revolver B)" set forth in the Credit Agreement.
26
<PAGE>
SCHEDULED I TO
SECOND AMENDMENT TO CREDIT AGREEMENT
AND COMPOSITE AMENDMENT AGREEMENT
CLOSING DOCUMENTS LIST
The following documents and showings are to be delivered in connection
with the closing of that certain Second Amendment to Credit Agreement and
Composite Amendment Agreement, dated as of June 30, 2000 (the "Second
Amendment"), by and among HI-RISE RECYCLING SYSTEMS, INC., a Florida corporation
("Hi-Rise"), IDC ACQUISITION SUB, INC., a New York corporation ("IDC"),
WILKINSON COMPANY, INC., an Ohio corporation ("Wilkinson"), RECYCLTECH
ENTERPRISES INC., an Ontario corporation ("Recycltech"), HESCO SALES, INC., a
Florida corporation ("Hesco"), UNITED TRUCK AND BODY CORPORATION, a Florida
corporation ("United Truck"), HESCO EXPORT CORPORATION, a Florida corporation
("Hesco Export"), BES-PAC, INC., formerly known as BPI ACQUISITION CORP., a
South Carolina corporation ("Bes-Pac Acquisition Corp."), and DII ACQUISITION
CORP., a Connecticut corporation ("Devivo Acquisition Corp.") (Hi-Rise, IDC,
Wilkinson, Recycltech, Hesco, United Truck, Hesco Export, Bes-Pac Acquisition
Corp. and Devivo Acquisition Corp. are sometimes collectively referred to herein
as the "Borrowers" and individually as a "Borrower"); ACME CHUTE COMPANY, INC.,
a Florida corporation ("Acme Chute"), DEVIVO INDUSTRIES, INC., a Connecticut
corporation ("DeVivo"), ECOLOGICAL TECHNOLOGIES, INC., a Connecticut corporation
("Eco"), KE CORPORATION, a Delaware corporation ("Kohlman Acquisition Corp."),
and AMERICAN GOOSENECK, INC., an Arizona corporation ("American Gooseneck")
(Acme Chute, DeVivo, Eco, Kohlman Acquisition Corp. and American Gooseneck are
sometimes collectively referred to herein as the "Subsidiary Guarantors" and,
together with the Borrowers, the "Credit Parties"); GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation (in its individual capacity, "GE Capital"),
BANK OF AMERICA, [N.A.,] successor in interest to NATIONSBANK, N.A., a national
banking association (in its individual capacity, "NationsBank"), KEY CORPORATE
CAPITAL, INC. (in its individual capacity, "KCCI"), the other Lenders signatory
hereto from time to time, GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent for the Lenders ("Administrative Agent"), and BANK OF
AMERICA, [N.A.,] successor in interest to NATIONSBANK, N.A., as Revolver Agent
for the Lenders ("Revolver Agent" and, together with Administrative Agent,
"Agents").
----------------------------------------------------------------------------
1. Second Amendment
2. Amended and Restated Revolving Credit Note (Revolver A), dated as of
June 30, 2000, made by Borrowers payable to the order of GE Capital in
the original principal amount of $5,343,750.00.
3. Amended and Restated Revolving Credit Note (Revolver A), dated as of
June 30, 2000, made by Borrowers payable to the order of NationsBank in
the original principal amount of $7,956,250.00.
27
<PAGE>
4. Amended and Restated Revolving Credit Note (Revolver A), dated as of
June 30, 2000, made by Borrowers payable to the order of KCCI in the
original principal amount of $5,700,000.00.
5. a. Letter Agreement, dated June 30, 2000, from the Borrowers with
respect to the execution and delivery of the Second Amendment
and Notes outside of the State of Florida.
b. Affidavit of Out-of-State Execution and Delivery.
c. Affidavit of Out-of-State Delivery.
6. Opinion of Olshan Grundman Frome Rozenweig & Wolosky LLP, counsel to
the Credit Parties, dated June 30, 2000.
7. Evidence of Equity Contribution of $500,000 from Donald Engel.
8. [Documents related to change of Name of United Truck and Body
Corporation and establishment of business location in Mississippi.]
28
<PAGE>
AMENDED AND RESTATED
REVOLVING NOTE (REVOLVER A)
Dated as of June 30, 2000 Atlanta, Georgia
$5,343,750.00
FOR VALUE RECEIVED, the undersigned, HI-RISE RECYCLING SYSTEMS, INC., a
Florida corporation ("Hi-Rise"), IDC ACQUISITION SUB, INC., a New York
corporation ("IDC"), WILKINSON COMPANY, INC., an Ohio corporation ("Wilkinson"),
RECYCLTECH ENTERPRISES INC., an Ontario corporation ("Recycltech"), HESCO SALES,
INC., a Florida corporation ("Hesco"), UNITED TRUCK AND BODY CORPORATION, a
Florida corporation ("United Truck"), HESCO EXPORT CORPORATION, a Florida
corporation ("Hesco Export"), BES-PAC, INC., formerly known as BPI ACQUISITION
CORP., a South Carolina corporation ("Bes-Pac Acquisition Corp."), and DII
ACQUISITION CORP., a Connecticut corporation ("Devivo Acquisition Corp.")
(Hi-Rise, IDC, Wilkinson, Recycltech, Hesco, United Truck, Hesco Export, Bes-Pac
Acquisition Corp. and Devivo Acquisition Corp. are sometimes collectively
referred to herein as the "Borrowers" and individually as a "Borrower"), HEREBY
JOINTLY AND SEVERALLY PROMISE TO PAY to the order of GENERAL ELECTRIC CAPITAL
CORPORATION ("Lender"), at the offices of BANK OF AMERICA, [N.A.,] successor in
interest to NATIONSBANK, N.A., a national banking association, as Revolver Agent
for Lenders ("Revolver Agent"), at its address at 100 S.E. 2nd Street, 15th
Floor, Miami, Florida 33131, Attention: Mr. John Foreman, or at such other place
as Revolver Agent may designate from time to time in writing, in lawful money of
the United States of America and in immediately available funds, the amount of
FIVE MILLION THREE HUNDRED FORTY THREE THOUSAND SEVEN HUNDRED FIFTY AND NO/100
DOLLARS AND NO CENTS ($5,343,750.00) or, if less, the aggregate unpaid amount of
all Revolving Credit Advances (Revolver A) made to the undersigned under the
"Credit Agreement" (as hereinafter defined). All capitalized terms used but not
otherwise defined herein have the meanings given to them in the Credit Agreement
or in Annex A thereto.
This Revolving Note (Revolver A) is one of the Revolving Notes
(Revolver A) issued pursuant to that certain Credit Agreement dated as of
October 28, 1998, by and among Borrowers, General Electric Capital Corporation,
Bank of America, [N.A.,] successor in interest to NationsBank, N.A., Key
Corporate Capital, Inc. and the other Persons signatory thereto from time to
time as Lenders, General Electric Capital Corporation, as Administrative Agent
and Revolver Agent (including all annexes, exhibits and schedules thereto, and
as from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), and is entitled to the benefit and security of the Credit
Agreement, the Security Agreement and all of the other Loan Documents referred
to therein. Reference is hereby made to the Credit Agreement for a statement of
all of the terms and conditions under which the Loans evidenced hereby are made
and are to be repaid. The date and amount of each Revolving Credit Advance
(Revolver A) made by Lenders to Borrowers, the rates of interest applicable
thereto and each payment made on account of the principal thereof, shall be
recorded by Revolver Agent on its books; provided that the failure of Revolver
Agent to make any such recordation shall not affect the obligations of Borrowers
to make a payment when due of any amount owing under the Credit Agreement or
this Note in respect of the Revolving Credit Advances (Revolver A) made by
Lender to Borrowers.
1
<PAGE>
This Revolving Note (Revolver A) amends and restates that certain
Amended and Restated Revolving Note (Revolver A), dated as of October 1, 1999
(the "Original Note (Revolver A)"), made by the Borrowers payable to the order
of the Lender in the original principal amount of $4,781,250.00. The outstanding
principal balance of the Original Note (Revolver A), together with all accrued
and unpaid interest thereon, shall, without any further action on the part of
any party, be deemed to be outstanding under this Revolving Note (Revolver A)
with the same allocation between principal and interest as under said Original
Note (Revolver A). Acceptance by the Lender of this Revolving Note (Revolver A)
shall not be deemed or construed as any payment, satisfaction, novation or
refinancing of all or any portion of the indebtedness evidenced by the Original
Note (Revolver A).
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note (Revolver A) becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension.
Upon and after the occurrence of any Event of Default, this Revolving
Note (Revolver A) may, as provided in the Credit Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
Time is of the essence of this Revolving Note (Revolver A). Demand,
presentment, protest and notice of nonpayment and protest are hereby waived by
each Borrower.
Except as provided in the Credit Agreement, this Revolving Note
(Revolver A) may not be assigned by Lender to any Person.
THIS REVOLVING NOTE (REVOLVER A) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE.
IN WITNESS WHEREOF, the undersigned Borrowers have caused this
Revolving Note (Revolver A) to be dated for reference as of the date first above
written, but have in fact duly executed and delivered this Revolving Note
(Revolver A) this 30th day of June, 2000.
HI-RISE RECYCLING SYSTEMS, INC., a Florida
corporation
IDC ACQUISITION SUB, INC., a New York
corporation
WILKINSON COMPANY, INC., an Ohio
corporation
RECYCLTECH ENTERPRISES INC., an Ontario
corporation
2
<PAGE>
HESCO SALES, INC., a Florida
corporation
UNITED TRUCK AND BODY CORPORATION, a Florida
corporation
HESCO EXPORT CORPORATION, a Florida
corporation
BES-PAC, INC., formerly known as BPI
ACQUISITION CORP., a
South Carolina corporation
DII ACQUISITION CORP., a Connecticut
corporation
By: /S/ J. GARY MCALPIN
------------------------------------------
Name:
Title:
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
The foregoing instrument was acknowledged before me this 30th day of
June, 2000, by Gary McAlpin, who personally appeared before me, being an officer
of each of HI-RISE RECYCLING SYSTEMS, INC., a Florida corporation, IDC
ACQUISITION SUB, INC., a New York corporation, WILKINSON COMPANY, INC., an Ohio
corporation, RECYCLTECH ENTERPRISES INC., an Ontario corporation, HESCO SALES,
INC., a Florida corporation, UNITED TRUCK AND BODY CORPORATION, a Florida
corporation, HESCO EXPORT CORPORATION, a Florida corporation, BES-PAC, INC.,
formerly known as BPI ACQUISITION CORP., a South Carolina corporation, and DII
ACQUISITION CORP., a Connecticut corporation, on behalf of each such
corporation, and he acknowledged that he signed and delivered the foregoing
instrument as his own free will and voluntary act for the purposes therein set
forth. The above-named individual has produced the following identification
which is current or has been issued within the past five years and bears a
serial or other identifying number and did (did not) take an oath:
[ ] the sworn written statement of a credible witness (who is presently
known to the Notary) that the signer is personally known to the
witness;
[X] a driver's license or non-driver's ID issued by Florida or any other
U.S. state;
[ ] a U.S. passport or a foreign passport stamped by the U.S. Immigration
and Naturalization Service;
[ ] a U.S. military ID;
[ ] a Canadian or Mexican driver's license issued by an official agency;
[ ] for an inmate in custody, an ID issued by the Florida Department of
Corrections;
3
<PAGE>
/S/ LINDA M. BEETSCHEN
--------------------------------------------
Print Name: Linda M. Beetschen
---------------------------------
NOTARY PUBLIC
Commission Number:
--------------------------
My Commission Expires: 12/25/01
----------------------
(Notarial Seal)
4
<PAGE>
AMENDED AND RESTATED
REVOLVING NOTE (REVOLVER A)
Dated as of June 30, 2000 Atlanta, Georgia
$7,956,250.00
FOR VALUE RECEIVED, the undersigned, HI-RISE RECYCLING SYSTEMS, INC., a
Florida corporation ("Hi-Rise"), IDC ACQUISITION SUB, INC., a New York
corporation ("IDC"), WILKINSON COMPANY, INC., an Ohio corporation ("Wilkinson"),
RECYCLTECH ENTERPRISES INC., an Ontario corporation ("Recycltech"), HESCO SALES,
INC., a Florida corporation ("Hesco"), UNITED TRUCK AND BODY CORPORATION, a
Florida corporation ("United Truck"), HESCO EXPORT CORPORATION, a Florida
corporation ("Hesco Export"), BES-PAC, INC., formerly known as BPI ACQUISITION
CORP., a South Carolina corporation ("Bes-Pac Acquisition Corp."), and DII
ACQUISITION CORP., a Connecticut corporation ("Devivo Acquisition Corp.")
(Hi-Rise, IDC, Wilkinson, Recycltech, Hesco, United Truck, Hesco Export, Bes-Pac
Acquisition Corp. and Devivo Acquisition Corp. are sometimes collectively
referred to herein as the "Borrowers" and individually as a "Borrower"), HEREBY
JOINTLY AND SEVERALLY PROMISE TO PAY to the order of BANK OF AMERICA, [N.A.,]
successor in interest to NATIONSBANK, N.A. ("Lender"), at the offices of BANK OF
AMERICA, [N.A.,] successor in interest to NATIONSBANK, N.A., a national banking
association, as Revolver Agent for Lenders ("Revolver Agent"), at its address at
100 S.E. 2nd Street, 15th Floor, Miami, Florida 33131, Attention: Mr. John
Foreman, or at such other place as Revolver Agent may designate from time to
time in writing, in lawful money of the United States of America and in
immediately available funds, the amount of SEVEN MILLION NINE HUNDRED FIFTY SIX
THOUSAND TWO HUNDRED FIFTY AND NO/100 DOLLARS AND NO CENTS ($7,956,250.00) or,
if less, the aggregate unpaid amount of all Revolving Credit Advances (Revolver
A) made to the undersigned under the "Credit Agreement" (as hereinafter
defined). All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement or in Annex A thereto.
This Revolving Note (Revolver A) is one of the Revolving Notes
(Revolver A) issued pursuant to that certain Credit Agreement dated as of
October 28, 1998, by and among Borrowers, General Electric Capital Corporation,
Bank of America, [N.A.,] successor in interest to NationsBank, N.A., Key
Corporate Capital, Inc. and the other Persons signatory thereto from time to
time as Lenders, General Electric Capital Corporation, as Administrative Agent
and Revolver Agent (including all annexes, exhibits and schedules thereto, and
as from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), and is entitled to the benefit and security of the Credit
Agreement, the Security Agreement and all of the other Loan Documents referred
to therein. Reference is hereby made to the Credit Agreement for a statement of
all of the terms and conditions under which the Loans evidenced hereby are made
and are to be repaid. The date and amount of each Revolving Credit Advance
(Revolver A) made by Lenders to Borrowers, the rates of interest applicable
thereto and each payment made on account of the principal thereof, shall be
recorded by Revolver Agent on its books; provided that the failure of Revolver
Agent to make any such recordation shall not affect the obligations of Borrowers
to make a payment when due of any amount owing under the Credit Agreement or
this Note in respect of the Revolving Credit Advances (Revolver A) made by
Lender to Borrowers.
1
<PAGE>
This Revolving Note (Revolver A) amends and restates that certain
Amended and Restated Revolving Note (Revolver A), dated as of October 1, 1999
(the "Original Note (Revolver A)"), made by the Borrowers payable to the order
of the Lender in the original principal amount of $7,118,750.00. The outstanding
principal balance of the Original Note (Revolver A), together with all accrued
and unpaid interest thereon, shall, without any further action on the part of
any party, be deemed to be outstanding under this Revolving Note (Revolver A)
with the same allocation between principal and interest as under said Original
Note (Revolver A). Acceptance by the Lender of this Revolving Note (Revolver A)
shall not be deemed or construed as any payment, satisfaction, novation or
refinancing of all or any portion of the indebtedness evidenced by the Original
Note (Revolver A).
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note (Revolver A) becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension.
Upon and after the occurrence of any Event of Default, this Revolving
Note (Revolver A) may, as provided in the Credit Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
Time is of the essence of this Revolving Note (Revolver A). Demand,
presentment, protest and notice of nonpayment and protest are hereby waived by
each Borrower.
Except as provided in the Credit Agreement, this Revolving Note
(Revolver A) may not be assigned by Lender to any Person.
THIS REVOLVING NOTE (REVOLVER A) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE.
IN WITNESS WHEREOF, the undersigned Borrowers have caused this
Revolving Note (Revolver A) to be dated for reference as of the date first above
written, but have in fact duly executed and delivered this Revolving Note
(Revolver A) this 30th day of June, 2000.
HI-RISE RECYCLING SYSTEMS, INC., a Florida
corporation
IDC ACQUISITION SUB, INC., a New York
corporation
WILKINSON COMPANY, INC., an Ohio
corporation
RECYCLTECH ENTERPRISES INC., an Ontario
corporation
2
<PAGE>
HESCO SALES, INC., a Florida corporation
UNITED TRUCK AND BODY CORPORATION, a
Florida corporation
HESCO EXPORT CORPORATION, a Florida
corporation
BES-PAC, INC., formerly known as BPI
ACQUISITION CORP., a South Carolina
corporation
DII ACQUISITION CORP., a Connecticut
corporation
By: /S/ J. GARY MCALPIN
------------------------------------------
Name: J. Gary McAlpin
-------------------------------------
Title:
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
The foregoing instrument was acknowledged before me this 30th day of
June, 2000, by Gary McAlpin, who personally appeared before me, being an officer
of each of HI-RISE RECYCLING SYSTEMS, INC., a Florida corporation, IDC
ACQUISITION SUB, INC., a New York corporation, WILKINSON COMPANY, INC., an Ohio
corporation, RECYCLTECH ENTERPRISES INC., an Ontario corporation, HESCO SALES,
INC., a Florida corporation, UNITED TRUCK AND BODY CORPORATION, a Florida
corporation, HESCO EXPORT CORPORATION, a Florida corporation, BES-PAC, INC.,
formerly known as BPI ACQUISITION CORP., a South Carolina corporation, and DII
ACQUISITION CORP., a Connecticut corporation, on behalf of each such
corporation, and he acknowledged that he signed and delivered the foregoing
instrument as his own free will and voluntary act for the purposes therein set
forth. The above-named individual has produced the following identification
which is current or has been issued within the past five years and bears a
serial or other identifying number and did (did not) take an oath:
[ ] the sworn written statement of a credible witness (who is presently
known to the Notary) that the signer is personally known to the
witness;
[X] a driver's license or non-driver's ID issued by Florida or any other
U.S. state;
[ ] a U.S. passport or a foreign passport stamped by the U.S. Immigration
and Naturalization Service;
[ ] a U.S. military ID;
[ ] a Canadian or Mexican driver's license issued by an official agency;
[ ] for an inmate in custody, an ID issued by the Florida Department of
Corrections;
3
<PAGE>
/S/ LINDA M. BEETSCHEN
--------------------------------------------
Print Name: Linda M. Beetschen
---------------------------------
NOTARY PUBLIC
Commission Number:
--------------------------
My Commission Expires: 12/25/01
----------------------
(Notarial Seal)
4
<PAGE>
AMENDED AND RESTATED
REVOLVING NOTE (REVOLVER A)
Dated as of June 30, 2000 Atlanta, Georgia
$5,700,000.00
FOR VALUE RECEIVED, the undersigned, HI-RISE RECYCLING SYSTEMS, INC., a
Florida corporation ("Hi-Rise"), IDC ACQUISITION SUB, INC., a New York
corporation ("IDC"), WILKINSON COMPANY, INC., an Ohio corporation ("Wilkinson"),
RECYCLTECH ENTERPRISES INC., an Ontario corporation ("Recycltech"), HESCO SALES,
INC., a Florida corporation ("Hesco"), UNITED TRUCK AND BODY CORPORATION, a
Florida corporation ("United Truck"), HESCO EXPORT CORPORATION, a Florida
corporation ("Hesco Export"), BES-PAC, INC., formerly known as BPI ACQUISITION
CORP., a South Carolina corporation ("Bes-Pac Acquisition Corp."), and DII
ACQUISITION CORP., a Connecticut corporation ("Devivo Acquisition Corp.")
(Hi-Rise, IDC, Wilkinson, Recycltech, Hesco, United Truck, Hesco Export, Bes-Pac
Acquisition Corp. and Devivo Acquisition Corp. are sometimes collectively
referred to herein as the "Borrowers" and individually as a "Borrower"), HEREBY
JOINTLY AND SEVERALLY PROMISE TO PAY to the order of KEY CORPORATE CAPITAL, INC.
("Lender"), at the offices of BANK OF AMERICA, [N.A.,] successor in interest to
NATIONSBANK, N.A., a national banking association, as Revolver Agent for Lenders
("Revolver Agent"), at its address at 100 S.E. 2nd Street, 15th Floor, Miami,
Florida 33131, Attention: Mr. John Foreman, or at such other place as Revolver
Agent may designate from time to time in writing, in lawful money of the United
States of America and in immediately available funds, the amount of FIVE MILLION
SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS AND NO CENTS ($5,700,000.00) or, if
less, the aggregate unpaid amount of all Revolving Credit Advances (Revolver A)
made to the undersigned under the "Credit Agreement" (as hereinafter defined).
All capitalized terms used but not otherwise defined herein have the meanings
given to them in the Credit Agreement or in Annex A thereto.
This Revolving Note (Revolver A) is one of the Revolving Notes
(Revolver A) issued pursuant to that certain Credit Agreement dated as of
October 28, 1998, by and among Borrowers, General Electric Capital Corporation,
Bank of America, [N.A.,] successor in interest to NationsBank, N.A., Key
Corporate Capital, Inc. and the other Persons signatory thereto from time to
time as Lenders, General Electric Capital Corporation, as Administrative Agent
and Revolver Agent (including all annexes, exhibits and schedules thereto, and
as from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), and is entitled to the benefit and security of the Credit
Agreement, the Security Agreement and all of the other Loan Documents referred
to therein. Reference is hereby made to the Credit Agreement for a statement of
all of the terms and conditions under which the Loans evidenced hereby are made
and are to be repaid. The date and amount of each Revolving Credit Advance
(Revolver A) made by Lenders to Borrowers, the rates of interest applicable
thereto and each payment made on account of the principal thereof, shall be
recorded by Revolver Agent on its books; provided that the failure of Revolver
Agent to make any such recordation shall not affect the obligations of Borrowers
to make a payment when due of any amount owing under the Credit Agreement or
this Note in respect of the Revolving Credit Advances (Revolver A) made by
Lender to Borrowers.
This Revolving Note (Revolver A) amends and restates that certain
Amended and
1
<PAGE>
Restated Revolving Note (Revolver A), dated as of October 1, 1999 (the "Original
Note (Revolver A)"), made by the Borrowers payable to the order of the Lender in
the original principal amount of $5,100,000.00. The outstanding principal
balance of the Original Note (Revolver A), together with all accrued and unpaid
interest thereon, shall, without any further action on the part of any party, be
deemed to be outstanding under this Revolving Note (Revolver A) with the same
allocation between principal and interest as under said Original Note (Revolver
A). Acceptance by the Lender of this Revolving Note (Revolver A) shall not be
deemed or construed as any payment, satisfaction, novation or refinancing of all
or any portion of the indebtedness evidenced by the Original Note (Revolver A).
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note (Revolver A) becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension.
Upon and after the occurrence of any Event of Default, this Revolving
Note (Revolver A) may, as provided in the Credit Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
Time is of the essence of this Revolving Note (Revolver A). Demand,
presentment, protest and notice of nonpayment and protest are hereby waived by
each Borrower.
Except as provided in the Credit Agreement, this Revolving Note
(Revolver A) may not be assigned by Lender to any Person.
THIS REVOLVING NOTE (REVOLVER A) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE.
IN WITNESS WHEREOF, the undersigned Borrowers have caused this
Revolving Note (Revolver A) to be dated for reference as of the date first above
written, but have in fact duly executed and delivered this Revolving Note
(Revolver A) this 30th day of June, 2000.
HI-RISE RECYCLING SYSTEMS, INC., a Florida
corporation
IDC ACQUISITION SUB, INC., a New York
corporation
WILKINSON COMPANY, INC., an Ohio
corporation
RECYCLTECH ENTERPRISES INC., an Ontario
corporation
HESCO SALES, INC., a Florida corporation
2
<PAGE>
UNITED TRUCK AND BODY CORPORATION, a
Florida corporation
HESCO EXPORT CORPORATION, a Florida
corporation
BES-PAC, INC., formerly known as BPI
ACQUISITION CORP., a South Carolina
corporation
DII ACQUISITION CORP., a Connecticut
corporation
By: /S/ J. GARY MCALPIN
------------------------------------------
Name: J. Gary McAlpin
-------------------------------------
Title:
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
The foregoing instrument was acknowledged before me this 30th day of
June, 2000, by J. Gary McAlpin, who personally appeared before me, being an
officer of each of HI-RISE RECYCLING SYSTEMS, INC., a Florida corporation, IDC
ACQUISITION SUB, INC., a New York corporation, WILKINSON COMPANY, INC., an Ohio
corporation, RECYCLTECH ENTERPRISES INC., an Ontario corporation, HESCO SALES,
INC., a Florida corporation, UNITED TRUCK AND BODY CORPORATION, a Florida
corporation, HESCO EXPORT CORPORATION, a Florida corporation, BES-PAC, INC.,
formerly known as BPI ACQUISITION CORP., a South Carolina corporation, and DII
ACQUISITION CORP., a Connecticut corporation, on behalf of each such
corporation, and he acknowledged that he signed and delivered the foregoing
instrument as his own free will and voluntary act for the purposes therein set
forth. The above-named individual has produced the following identification
which is current or has been issued within the past five years and bears a
serial or other identifying number and did (did not) take an oath:
[ ] the sworn written statement of a credible witness (who is presently
known to the Notary) that the signer is personally known to the
witness;
[X] a driver's license or non-driver's ID issued by Florida or any other
U.S. state;
[ ] a U.S. passport or a foreign passport stamped by the U.S. Immigration
and Naturalization Service;
[ ] a U.S. military ID;
[ ] a Canadian or Mexican driver's license issued by an official agency;
[ ] for an inmate in custody, an ID issued by the Florida Department of
Corrections;
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/S/ LINDA M. BEETSCHEN
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Print Name: Linda M. Beetschen
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NOTARY PUBLIC
Commission Number:
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My Commission Expires: 12/25/01
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(Notarial Seal)
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