own (directly or
indirectly), free and clear of all Liens or other encumbrances (other than any
Lien or encumbrance created by the Loan Documents), 100% of the outstanding
shares of each class of Capital Stock of any Subsidiary Guarantor on a fully
diluted basis, or, in the case of NASDI, at least 65% of the outstanding equity
capital, or 100% of the outstanding Voting Stock, of NASDI, or (B) to have the
power (directly or indirectly) to direct or cause the direction of the
management or policies of any such Subsidiary Guarantor (subject, in the case of
NASDI, to the terms of NASDI's limited liability company agreement and other
organizational documents); or
(F)
SCHEDULE I OF THE CREDIT AGREEMENT IS
HEREBY AMENDED AS FOLLOWS:
(I)
THE DEFINITION OF "EBITDA" IS HEREBY AMENDED TO ADD THE
FOLLOWING NEW CLAUSE (B)(II) TO THE FIRST SENTENCE OF SUCH DEFINITION
IMMEDIATELY FOLLOWING CLAUSE (B)(I) AND PRIOR TO CLAUSE (C) THEREOF:
AND
(II) NET INCOME ATTRIBUTABLE TO THE MINORITY EQUITY INTEREST IN NASDI THAT
IS NOT OWNED, DIRECTLY OR INDIRECTLY, BY THE BORROWER TO THE EXTENT THE NET
INCOME IN RESPECT OF SUCH MINORITY EQUITY INTEREST IS DISTRIBUTED TO THE HOLDER
OR HOLDERS OF SUCH MINORITY EQUITY INTEREST.
(II)
THE DEFINITION OF "NASDI" IS HEREBY AMENDED TO DELETE SUCH
DEFINITION IN ITS ENTIRETY AND TO REPLACE SUCH DEFINITION WITH THE FOLLOWING
DEFINITION:
"NASDI" MEANS NORTH AMERICAN SITE DEVELOPERS, INC., A MASSACHUSETTS CORPORATION,
AND, UPON THE CONSUMMATION OF THE NASDI RESTRUCTURING, MEANS NORTH AMERICAN SITE
DEVELOPERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY.
(III)
THE DEFINITION OF "NET CASH PROCEEDS" IS HEREBY AMENDED TO ADD
THE FOLLOWING PROVISO TO THE END OF SUCH DEFINITION:
provided, however, that Net Cash Proceeds shall exclude any cash proceeds
received by the Borrower or any of its Subsidiaries from the sale of any assets
or equity interests (including, without limitation, by way of merger,
consolidation, reorganization or similar transaction) of NASDI or NASDI Holdings
to the extent that (a) the Borrower or such Subsidiary is required to (i)
distribute such proceeds as an equity distribution to the
3
holders of NASDI's equity interests other than the Borrower or any of its
Subsidiaries (including, without limitation, distributions of available cash
flow and liquidating distributions) pursuant to NASDI's limited liability
company agreement or other organizational documents or (ii) pay such proceeds to
Christopher Berardi (or his heirs, executor or assigns) as a bonus pursuant to
his employment agreement as then in effect and (b) the aggregate amount so
excluded does not exceed 35% of the gross amount of such cash proceeds
(including the amount of cash subsequently received in respect of any non-cash
proceeds) received by the Borrower and its Subsidiaries from such sale or
similar transaction.
(IV)
THE FOLLOWING DEFINITIONS OF "BERARDI", "NASDI HOLDINGS" AND "NASDI
RESTRUCTURING" ARE HEREBY ADDED IN THE APPROPRIATE ALPHABETICAL LOCATIONS:
"BERARDI" MEANS CHRISTOPHER A.
BERARDI OR AN ENTITY CONTROLLED BY CHRISTOPHER A. BERARDI, AND INCLUDES ANY
HEIRS, EXECUTORS AND PERMITTED ASSIGNS OR TRANSFEREES.
"NASDI HOLDINGS" MEANS