FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
Exhibit
10.1
EXECUTION
VERSION
FIRST
AMENDMENT
TO
AMENDED
AND RESTATED
This
FIRST
AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT
(this
“First
Amendment”)
is
made and entered into as of the 16th day of November, 2006, by and among
WASTE
CONNECTIONS, INC.,
a
Delaware corporation (the “Parent”),
the
Subsidiaries of the Parent identified on Schedule
2
to the
Credit Agreement defined below (together with the Parent, collectively the
“Borrowers”),
each
lender from time to time party to the Credit Agreement (collectively, the
“Lenders”
and,
individually, a “Lender”),
BANK
OF AMERICA, N.A.,
as
administrative agent for the Lenders (the “Administrative
Agent”)
and
DEUTSCHE
BANK SECURITIES, INC.,
as
syndication agent for the Lenders (the “Syndication
Agent”).
WHEREAS,
the
Borrowers, the Lenders, the Administrative Agent and the Syndication Agent
are
party to that certain Amended and Restated Revolving Credit and Term Loan
Agreement dated as of January 12, 2006, (as the same may be amended and in
effect from time to time, the “Credit
Agreement”),
pursuant to which the Lenders party thereto (the “Existing
Lenders”)
have
extended credit to the Borrowers on the terms set forth therein;
WHEREAS,
the
Borrowers have requested that the Lenders and the Administrative Agent make
certain amendments to the Credit Agreement with respect to the maturity and
pricing of the Loans,
WHEREAS,
certain
of the Existing Lenders have notified the Administrative Agent and the Borrowers
that they will withdraw as Lenders under the Credit Agreement (the “Withdrawing
Lenders”)
as of
the Effective Date (as defined below);
WHEREAS,
the
Lenders that are not Withdrawing Lenders wish to remain as parties to the
Credit
Agreement and, as applicable, either maintain or increase their respective
Commitment Percentage (the “Continuing
Lenders”);
and
WHEREAS,
the
Continuing Lenders and the Administrative Agent are willing to amend the
Credit
Agreement on the terms set forth herein;
NOW,
THEREFORE,
in
consideration of the foregoing, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree
as follows:
1. Definitions.
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Credit Agreement.
2. Amendments
to §1.1 of the Credit Agreement.
§1.1
of
the Credit Agreement is hereby amended by:
(a) deleting
the table contained within the definition of “Pricing Table” in its entirety and
substituting in lieu thereof the following table:
|
Level
|
Leverage
Ratio
|
Applicable
Eurodollar
Margin
(per
annum)
|
Applicable
Base
Rate
Margin
(per
annum)
|
Applicable
L/C
Margin
(per
annum)
|
Applicable
Commitment
Rate
(per
annum)
|
|
I
|
Greater
than or
equal
to 3.25:1
|
1.375%
|
0.00%
|
1.375%
|
0.250%
|
|
II
|
Greater
than or
equal
to 2.75:1
but
less than
3.25:1
|
1.125%
|
0.00%
|
1.125%
|
0.200%
|
|
III
|
Greater
than or
equal
to 2.25:1
but
less than
2.75:1
|
0.875%
|
0.00%
|
0.875%
|
0.175%
|
|
IV
|
Less
than
2.25:1
|
0.750%
|
0.00%
|
0.750%
|
0.150%
|
(b) deleting
the reference to “$850,000,000 on the Closing Date” which appears in the
definition of “Total Revolving Credit Commitment” and substituting in place
thereof the dollar amount “$750,000,000.”
(c) deleting
the date “January 12, 2011” which appears in subsection (i) of the definition of
“Revolving Credit Maturity Date” and substituting in place thereof the date
“January 12, 2012.”
3. Amendments
to §18 of the Credit Xxxxxxxxx. §00
of the Credit Agreement is hereby amended by:
(a) deleting
the dollar amount “$1,050,000,000” which appears in subsection (g)(ii) of such
Section and substituting in place thereof the dollar amount “$1,000,000,000;”
and
(b) inserting
the words “occurring after November 16, 2006” immediately after the words
“minus
any
previously effected permanent reductions of the Total Revolving Credit
Commitment and prepayments of the Term Loan” which appear in subsection (g)(ii)
of such Section.
4. Amendments
to Schedule 1 of the Credit Agreement.
Schedule 1 of the Credit Agreement is hereby amended by deleting such Schedule
in its entirety and substituting in lieu thereof Schedule 1 as set forth
on
Schedule
A
attached
hereto.
5. No
Waiver.
Except
as a result of the amendments set forth in §§2, 3 and 4 of this First Amendment,
nothing contained herein shall be deemed to (i) constitute a waiver of any
Default or Event of Default that may heretofore or hereafter occur or has
occurred and is continuing or to otherwise modify any provision of the Credit
Agreement, or (ii) give rise to any defenses or counterclaims to the
Administrative Agent’s or any of the Lenders’ right to compel payment of the
Obligations when due or to otherwise enforce their respective rights and
remedies under the Credit Agreement and the other Loan Documents.
2
6. Fees.
The
Borrowers hereby promise to pay, on the Effective Date, in consideration
of each
Continuing Lender consenting to this First Amendment, any upfront fee payable
to
each Continuing Lender, which upfront fee shall be earned as of the Effective
Date.
7. Conditions
to Effectiveness.
This
First Amendment shall become effective as of the date (the “Effective
Date”)
when
each of the following conditions is met:
(a) receipt
by the Administrative Agent of this First Amendment duly and properly
authorized, executed and delivered by each of the respective parties
hereto;
(b) execution
and delivery by the Borrowers to each Continuing Lender that requests an
Amended
and Restated Revolving Credit Note of such instruments as set forth in §2.3(b)
of the Credit Agreement;
(c) receipt
by the Continuing Lenders of all fees provided for in §6 of this First
Amendment;
(d)
payment
in full of the Withdrawing Lenders’ outstanding principal amount and any accrued
interest and other fees due to the Withdrawing Lenders under their Revolving
Credit Loans as of the Effective Date; and
(e) payment
of all of the Administrative Agent’s reasonable legal fees and expenses incurred
in the connection with the preparation and negotiation of this First
Amendment.
8. Representations
and Warranties.
The
Borrowers represent and warrant to the Administrative Agent and the Continuing
Lenders as follows:
(a) The
execution, delivery and performance of this First Amendment and the transactions
contemplated hereby (i) are within the corporate (or the equivalent company
or
partnership) authority of each of the Borrowers, (ii) have been duly authorized
by all necessary corporate (or other) proceedings, (iii) do not conflict
with or
result in any material breach or contravention of any provision of law, statute,
rule or regulation to which any of the Borrowers is subject or any judgment,
order, writ, injunction, license or permit applicable to any of the Borrowers
so
as to materially adversely affect the assets, business or any activity of
the
Borrowers, and (iv) do not conflict with any provision of the corporate charter,
articles or bylaws (or equivalent other company or partnership documents)
of the
Borrowers or any agreement or other instrument binding upon the Borrowers,
including, without limitation, the Indenture.
(b) The
execution, delivery and performance of this First Amendment will result in
valid
and legally binding obligations of the Borrowers enforceable against each
in
accordance with the respective terms and provisions hereof and thereof, except
as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of
creditors’ rights and except to the extent that availability of the remedy of
specific performance or injunctive relief or other equitable remedy is subject
to the discretion of the court before which any proceeding therefor may be
brought.
3
(c) The
execution, delivery and performance by the Borrowers of this First Amendment
and
the transactions contemplated hereby do not require any approval or consent
of,
or filing with, any governmental agency or authority other than those already
obtained, if any.
(d) The
representations and warranties contained in §6 of the Credit Agreement are true
and correct in all material respects as of the date hereof as though made
on and
as of the date hereof, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall
be
true and correct as of such earlier date and except to the extent of changes
resulting from transactions contemplated or permitted by this Agreement (as
amended by the First Amendment) and changes occurring in the ordinary course
of
business which singly or in the aggregate do not have a Material Adverse
Effect.
For purposes of this §8(d), the representations and warranties contained in §6.4
of the Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to §7.4 of the Credit Agreement.
(e) After
giving effect to this First Amendment, no Default or Event of Default under
the
Credit Agreement has occurred and is continuing.
9. Ratification,
etc.
Except
as expressly amended hereby, the Credit Agreement, the other Loan Documents
and
all documents, instruments and agreements related thereto are hereby ratified
and confirmed in all respects and shall continue in full force and effect.
This
First Amendment and the Credit Agreement shall hereafter be read and construed
together as a single document, and all references in the Credit Agreement,
any
other Loan Document or any agreement or instrument related to the Credit
Agreement shall hereafter refer to the Credit Agreement as amended by this
First
Amendment.
10. GOVERNING
LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF NEW YORK.
11.
Counterparts.
This
First Amendment may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which counterparts taken together
shall be deemed to constitute one and the same instrument.
[Remainder
of page left blank intentionally]
4
THE
BORROWERS:
WASTE
CONNECTIONS, INC.
AMERICAN
DISPOSAL COMPANY, INC.
AMERICAN
SANITARY SERVICE, INC.
ARROW
SANITARY SERVICE, INC.
BITUMINOUS
RESOURCES, INC.
XXXXXX
COUNTY LANDFILL, INC.
CAMINO
REAL ENVIRONMENTAL CENTER, INC.
COLD
CANYON LAND FILL, INC.
COMMUNITY
REFUSE DISPOSAL INC.
CONTRACTORS
WASTE SERVICES, INC.
CORRAL
DE XXXXXX LAND COMPANY
XXXXX
TRANSFER & RECYCLING, INC.
X.
X. DISPOSAL CO., INC.
DENVER
REGIONAL LANDFILL, INC.
EMPIRE
DISPOSAL, INC.
ENVIRONMENTAL
TRUST COMPANY
EVERGREEN
DISPOSAL, INC.
XXXXXX
COUNTY LANDFILL, INC.
FRANK’S
SERVICE, INC.
G
& P DEVELOPMENT, INC.
HIGH
DESERT SOLID WASTE FACILITY, INC.
(F/K/A
RHINO
SOLID WASTE, INC.)
ISLAND
DISPOSAL, INC.
J
BAR J LAND, INC.
KELLY’S
HAUL AWAY, INC.
LAKESHORE
DISPOSAL, INC.
LEALCO,
INC.
LES’
COUNTY SANITARY, INC.
MADERA
DISPOSAL SYSTEMS, INC.
MAMMOTH
DISPOSAL COMPANY
MANAGEMENT
ENVIRONMENTAL NATIONAL, INC.
XXXXX
COUNTY GARBAGE CO., INC.
MDSI
OF LA, INC.
MILLENNIUM
WASTE INCORPORATED
MISSION
COUNTRY DISPOSAL
MORRO
BAY GARBAGE SERVICE
XXXXXX’X
DISPOSAL COMPANY, INC.
NEBRASKA
ECOLOGY SYSTEMS, INC.
XXXXXX
COUNTY LANDFILL, INC.
NORTHERN
PLAINS DISPOSAL, INC.
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
5
NORTHWEST
CONTAINER SERVICES, INC.
OKLAHOMA
CITY WASTE DISPOSAL, INC.
OKLAHOMA
LANDFILL HOLDINGS, INC.
OSAGE
LANDFILL, INC.
PSI
ENVIRONMENTAL SERVICES, INC.
PSI
ENVIRONMENTAL SYSTEMS, INC.
RED
CARPET LANDFILL, INC.
RH
FINANCIAL CORPORATION
RURAL
WASTE MANAGEMENT, INC.
SAN
XXXX GARBAGE COMPANY
XXXXX
SOLID WASTE DISPOSAL COMPANY
SEDALIA
LAND COMPANY
SOUTH
COUNTY SANITARY SERVICE, INC.
SOUTHERN
PLAINS DISPOSAL, INC.
TACOMA
RECYCLING COMPANY, INC.
TENNESSEE
WASTE MOVERS, INC.
WASCO
COUNTY LANDFILL, INC.
WASTE
CONNECTIONS MANAGEMENT SERVICES, INC.
WASTE
CONNECTIONS OF ALABAMA, INC.
WASTE
CONNECTIONS OF ARIZONA, INC.
WASTE
CONNECTIONS OF ARKANSAS, INC.
WASTE
CONNECTIONS OF CALIFORNIA, INC.
(F/K/A
XXXXXX DISPOSAL SERVICE, INC.)
WASTE
CONNECTIONS OF COLORADO, INC.
WASTE
CONNECTIONS OF IDAHO, INC.
(F/K/A
MOUNTAIN XXXX ENVIRONMENTAL SERVICES, INC.)
WASTE
CONNECTIONS OF ILLINOIS, INC.
WASTE
CONNECTIONS OF IOWA, INC.
(F/K/A
XXXXXX WASTE SYSTEMS INC.)
WASTE
CONNECTIONS OF KANSAS, INC.
WASTE
CONNECTIONS OF KENTUCKY, INC.
WASTE
CONNECTIONS OF MINNESOTA, INC.
(F/K/A
XXXXXX’X SANITARY SERVICE, INC.)
WASTE
CONNECTIONS OF MISSISSIPPI, INC.
(F/K/A
LIBERTY WASTE SERVICES OF MISSISSIPPI HOLDINGS, INC.)
WASTE
CONNECTIONS OF MISSOURI, INC.
WASTE
CONNECTIONS OF MONTANA, INC.
WASTE
CONNECTIONS OF NEBRASKA, INC.
WASTE
CONNECTIONS OF NEW MEXICO, INC.
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
6
WASTE
CONNECTIONS OF OKLAHOMA, INC.
(F/K/A
B & B SANITATION, INC.)
WASTE
CONNECTIONS OF OREGON, INC.
(F/K/A
SWEET HOME SANITATION SERVICE, INC.)
WASTE
CONNECTIONS OF SOUTH DAKOTA, INC.
(F/K/A
XXXXX ENTERPRISES, INC.)
WASTE
CONNECTIONS OF TENNESSEE, INC.
(FKA
LIBERTY WASTE SERVICES OF TENNESSEE HOLDINGS, INC.)
WASTE
CONNECTIONS OF THE CENTRAL VALLEY, INC.
(F/K/A/
KINGSBURG DISPOSAL SERVICE, INC.)
WASTE
CONNECTIONS OF UTAH, INC.
WASTE
CONNECTIONS OF WASHINGTON, INC.
WASTE
CONNECTIONS OF WYOMING, INC.
WASTE
CONNECTIONS TRANSPORTATION COMPANY, INC.
WASTE
SERVICES OF N.E. MISSISSIPPI, INC.
WCI
OF GEORGIA, INC.
WEST
BANK ENVIRONMENTAL SERVICES, INC.
WEST
COAST RECYCLING AND TRANSFER, INC.
WYOMING
ENVIRONMENTAL SERVICES, INC.
WYOMING
ENVIRONMENTAL SYSTEMS, INC.
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
COLUMBIA
RESOURCE CO., X.X.
XXXXXX-BUTTES
LIMITED PARTNERSHIP
By:
Management
Environmental National, Inc.,
its
General Partner
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
7
EL
PASO DISPOSAL, LP
By: Waste
Connections of Texas, LLC,
its
General Partner
By: Waste
Connections Management Services, Inc.,
its
Manager
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
GLACIER
DISPOSAL, L.L.C.
SUNRISE
SANITATION, LLC
WASTE
CONNECTIONS OF MISSISSIPPI DISPOSAL SERVICES, LLC
WASTE
CONNECTIONS OF XXXXXXX, LLC
By:
Waste
Connections, Inc.,
its
Managing Member
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
WASTE
CONNECTIONS OF TEXAS, LLC
By:
Waste
Connections Management Services, Inc.,
its
Manager
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
RAILROAD
AVENUE DISPOSAL, LLC
XXXXX
WASTE SERVICES, LLC
WASTE
SOLUTIONS GROUP OF SAN XXXXXX, LLC
By:
Waste
Connections, Inc.
Its
Manager
By:
Worthing
X. Xxxxxxx
Chief
Financial Officer
8
BANK
OF AMERICA, N.A,
as
Administrative Agent
By:___________________________
Name:
Title:
BANK
OF AMERICA, N.A,
as
a
Lender, Swing Line Lender
and
Issuing Bank
By:___________________________________
Name:
Title:
[LENDERS]
Schedule
1
Lenders;
Commitments; Commitment Percentages
|
Lender
|
Commitment
|
Commitment
Percentage
|
|
Bank
of America, N.A.
|
$130,000,000
|
17.333333333%
|
|
Deutsche
Bank Trust Company Americas
|
$110,000,000
|
14.666666667%
|
|
Xxxxx
Fargo Bank, N.A.
|
$85,000,000
|
11.333333333%
|
|
Union
Bank of California, N.A.
|
$70,000,000
|
9.333333333%
|
|
JPMorgan
Chase
|
$50,000,000
|
6.666666667%
|
|
Key
Bank National Association
|
$40,000,000
|
5.333333333%
|
|
Commerzbank
AG, New York and Grand Cayman Branches
|
$40,000,000
|
5.333333333%
|
|
US
Bank National Association
|
$35,000,000
|
4.666666667%
|
|
Guaranty
Bank
|
$35,000,000
|
4.666666667%
|
|
Sumitomo
Mitsui Banking Corporation
|
$30,000,000
|
4.000000000%
|
|
First
Bank d/b/a First Bank & Trust
|
$25,000,000
|
3.333333333%
|
|
Citicorp
North America, Inc.
|
$25,000,000
|
3.333333333%
|
|
Bank
of the West
|
$25,000,000
|
3.333333333%
|
|
People's
Bank
|
$25,000,000
|
3.333333333%
|
|
PNC
Bank, National Association
|
$25,000,000
|
3.333333333%
|
|
$750,000,000.00
|
100.000000000%
|