EXHIBIT 4.7
AMENDING AGREEMENT NO. 2 AND CONSENT
THIS AMENDING AGREEMENT NO. 2 AND CONSENT (this "AGREEMENT") is
made as of May 1, 2003 among Capital Environmental Resource Inc./Ressources
Environnementales Capital Inc. (the "BORROWER"), various financial institutions,
as lenders (the "LENDERS") and Bank of America, N.A. (Canada Branch) ("BOFA"),
as Administrative Agent (the "ADMINISTRATIVE AGENT").
RECITALS:
A. Reference is made to the credit agreement dated as of June 27, 2002 among the
Borrower, the Lenders, the Administrative Agent and Canadian Imperial Bank of
Commerce as managing agent (the "MANAGING AGENT"), as amended by amending
agreement no. 1 dated as of July 31, 2002 among the Borrower, certain of the
Lenders, the Administrative Agent, the Managing Agent and The Toronto-Dominion
Bank as syndication agent (the "SYNDICATION AGENT") (collectively, the "CREDIT
AGREEMENT"). Capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement.
B. The Borrower has requested certain amendments to the Credit Agreement and the
Administrative Agent and the Lenders party hereto have agreed to such
amendments, as more fully set forth herein.
C. The Borrower has also requested the consent of the Administrative Agent and
the Lenders party hereto of its acquisition (the "OMNI ACQUISITION") of all of
the equity interests in Omni Waste of Osceola County LLC ("OMNI"; Omni and its
subsidiaries being hereinafter referred to collectively as the "TARGETS"), in
each case as more particularly set out below.
NOW THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. In reliance on the representations,
warranties, covenants and agreements set forth in this Agreement, and
notwithstanding any provisions of the Credit Agreement or any other Loan
Document to the contrary, the Administrative Agent and the Lenders party hereto
hereby agree to the amendments to the Credit Agreement as set forth below.
Effective as of the Effective Date, the Credit Agreement is hereby amended as
follows:
(a) The definitions of "Capital Expenditures", "Change of Control",
"Collateral Mortgage", "Funded Debt", "Guaranty" and "Security Agreement"
appearing in Section 1.1 of the Credit Agreement are hereby amended and restated
in their entirety to read as follows:
"CAPITAL EXPENDITURES" means, for any period, all expenditures
which, in accordance with GAAP, would be required to be capitalized and
shown on the consolidated balance sheet of the Borrower and its
Subsidiaries during such period, but excluding (a) up to US $12,000,000
of any capital expenditures made in connection with the Omni Acquisition
or in connection with the development of the Omni Landfill Site up
-2-
to and including (but not after) the date upon which the Omni Landfill
Site becomes operational and (b) expenditures made in connection with
the replacement or restoration of assets during such period, PROVIDED a
copy of the purchase order evidencing the replacement of such asset or
similar evidence is provided to the Administrative Agent within 90 days
of the loss or damage of such asset and such assets are replaced or
restored within 360 days of the loss or damage of such asset, and to the
extent financed (i) from insurance proceeds (or other similar
recoveries) paid on account of the loss of or damage to the assets being
replaced or restored, or (ii) with awards of compensation arising from
the taking by expropriation, eminent domain or condemnation of the
assets being replaced.
"CHANGE OF CONTROL" means (a) any Person or group of Persons,
acting jointly or otherwise in concert, other than the Permitted
Holders, shall acquire legal or beneficial ownership of 20% or more of
the outstanding shares of common stock of the Borrower, or (b) during
any 12-month period, individuals who at the beginning of such period
constituted Borrower's Board of Directors (together with any new
directors whose election by the Borrower's Board of Directors or whose
nomination for election by the Borrower's shareholders was approved by a
vote of a majority of the directors who either were directors at the
beginning of such period or whose election or nomination was previously
so approved) cease for any reason to constitute a majority of the Board
of Directors of the Borrower; PROVIDED THAT (i) the equity investments
made by certain Persons in the Borrower or any Subsidiary to consummate
the Omni Acquisition and the investments made by the Xxxxx Investors to
purchase the Xxxxx Preferred Stock and the Xxxxx Warrants under the
Xxxxx Preferred Stock Documents; (ii) the ability of the Xxxxx Investors
to appoint up to two members of the Borrower's Board of Directors under
the Xxxxx Preferred Stock Documents and (iii) the Exchange Event as
defined in Section 6.7 of the Xxxxx Subscription Agreement in each case
shall not apply to a determination of Change of Control.
"COLLATERAL MORTGAGE" means each of (i) the collateral mortgages
and fixed and floating charge debentures to be executed and delivered by
the Borrower and each of its Subsidiaries having an interest in any real
property, substantially in the form of Exhibits H-3 and H-4,
respectively and (ii) the mortgages and deeds of trust executed and
delivered by the Borrower and each of its Subsidiaries having an
interest in real property.
"FUNDED DEBT" means all Debt of the Borrower and its
Subsidiaries, excluding (i) obligations of the Borrower or any
Subsidiary in respect of any performance bonds, (ii) the obligations of
the Borrower or any Subsidiary in respect of undrawn letters of credit
supporting any performance bond, (iii) the obligations of the Borrower
or any Subsidiary in respect of undrawn letters of credit supporting
post-closure obligations, (iv) the obligations of the Borrower or any
Subsidiary in respect of undrawn letters of credit supporting Municipal
Service Contracts, (v) liabilities under Hedging Agreements, (vi) Debt
of the Borrower to Wholly-Owned Subsidiaries and Debt of Subsidiaries to
the Borrower or to other Wholly-Owned Subsidiaries, (vii) contingent
obligations in respect of the WSI Acquisition and (viii) royalty
payments due by the Borrower or a Subsidiary
-3-
to municipalities or other persons or entities under that certain
Royalty Agreement (the "OMNI ROYALTY AGREEMENT") dated as of May 1,
2003, without giving effect to any amendments thereto, entered into in
connection with the Omni Acquisition.
"GUARANTY" means (i) the Subsidiary Guaranty issued or to be
issued by various Subsidiaries, substantially in the form of EXHIBIT G
and (ii) the U.S. Subsidiary Guaranty and any other guaranty issued or
to be issued by any of the Borrower's Subsidiaries.
"SECURITY AGREEMENT" means each of the (i) the General Security
Agreements issued by various Canadian Subsidiaries and the General
Security Agreement issued by the Borrower, substantially in the form of
EXHIBITS H-1 and H-2, respectively and (ii) the U.S. Security Agreement
and any other security agreement issued or to be issued by the Borrower
or any of its Subsidiaries.
(b) The following definitions are hereby added to Section 1.1 of
the Credit Agreement:
"GANNARELLI DEBT" is defined in the Second Amendment.
"XXXXX INVESTORS" means Xxxxx Investment Associates VI, L.P., a
Delaware limited partnership and KEP VI, LLC, a Delaware limited
liability company.
"XXXXX PREFERRED STOCK" is defined in the Second Amendment.
"XXXXX PREFERRED STOCK DOCUMENTS" means those certain instruments
and documents (including without limitation subscription agreements,
warrants and certificates of designations) pursuant to which the Xxxxx
Investors have agreed to invest, in exchange for the Xxxxx Warrants and
shares of the Xxxxx Preferred Stock, net cash proceeds of at least
US$50,000,000 and up to US$100,000,000.
"XXXXX SUBSCRIPTION AGREEMENT" means that certain preferred
subscription agreement by and among Waste Services, Inc., the Borrower
and the Xxxxx Investors.
"XXXXX WARRANTS" is defined in the Second Amendment.
"MAJORITY PURCHASE AGREEMENT" is defined in the Second Amendment.
"OMNI ACQUISITION" is defined in the Second Amendment.
"OMNI LANDFILL SITE" means the landfill site acquired pursuant to
the Omni Acquisition.
"OMNI SUBSCRIPTION AGREEMENTS" means those certain instruments
and documents pursuant to which certain investors have invested, in
exchange for Series I Preferred Stock of the Borrower, US$28,500,000 in
net cash proceeds.
-4-
"SECOND AMENDMENT" means that certain Amending Agreement No. 2
and Consent dated as of May 1, 2003 between the Borrower, certain of the
Lenders and the Administrative Agent.
(c) Section 8.6.2 of the Credit Agreement is amended to delete
the reference to "at any time during any Computation Period" appearing
therein and replace it with "at the end of any Computation Period".
(d) Section 8.6.3 of the Credit Agreement is amended and restated
in its entirety to read as follows:
8.6.3 LEVERAGE RATIO. Not permit the Leverage Ratio at any time
during any Computation Period ending during the periods described below
to exceed the applicable ratio set forth below:
Maximum Leverage
Computation Periods Ending: Ratio
------------------------------------------- ----------------
March 31, 2003 3.50 : 1.00
April 1, 2003 - September 29, 2003 3.35 : 1.00
September 30, 2003 - March 31, 2004 3.00 : 1.00
April 1, 2004 - September 30, 2004 2.75 : 1.00
October 1, 2004 - March 31, 2005 2.50 : 1.00
April 1, 2005 - September 30, 2005 2.25: 1.00
October 1, 2005 and thereafter 2.00 : 1.00
PROVIDED that if, after the Closing Date, the Borrower incurs any
additional Subordinated Debt, then, in lieu of the foregoing maximum
Leverage Ratio, from and after the date on which such Subordinated Debt
is incurred, the Borrower shall not permit the Leverage Ratio and the
Senior Leverage Ratio at any time during any Computation Period ending
during the periods described below to exceed the applicable ratios set
forth below:
Maximum Leverage
Computation Periods Ending: Ratio
------------------------------------------- ----------------
March 31, 2003 - September 30, 2004 3.75 : 1.00
October 1, 2004 - March 31, 2005 3.50 : 1.00
April 1, 2005 and thereafter 3.25 : 1.00
-5-
Maximum Senior
Computation Periods Ending: Leverage Ratio
------------------------------------------- ----------------
March 31, 2003 3.50 : 1.00
April 1, 2003 - September 29, 2003 3.35 : 1.00
September 30, 2003 - March 31, 2004 3.00 : 1.00
April 1, 2004 - September 30, 2004 2.75 : 1.00
October 1, 2004 - March 31, 2005 2.50 : 1.00
April 1, 2005 - September 30, 2005 2.25: 1.00
October 1, 2005 and thereafter 2.00 : 1.00
(e) Section 8.6.5 is amended and restated in its entirety to read
as follows:
8.6.5. CAPITAL EXPENDITURES. Not permit the consolidated Capital
Expenditures of the Borrower and its Subsidiaries at any time during any
Computation Period ending during the periods described below to exceed
the applicable amounts set forth below:
Computation Periods Ending: Capital Expenditure Limit
------------------------------------------- -------------------------
January 1, 2003 - December 31, 2003 Cdn.$16,000,000
January 1, 2004 - Thereafter Cdn.$17,600,000
If, after the Closing Date, the Borrower or any of its Subsidiaries
completes an Acquisition, the maximum Capital Expenditure levels set
forth above will be increased by an amount equal to the consolidated
trailing 12-month depreciation of the Person which is the subject of
such Acquisition (or, in the case of an Acquisition of only a portion of
the assets of any Person, the consolidated depreciation of the Person
which is the subject of such Acquisition, solely to the extent such
consolidated depreciation relates to the assets acquired in such
Acquisition). Any such adjustment will be determined by the
Administrative Agent, based upon the consolidated audited financial
statements of the Person which is the subject of such Acquisition for
the most recently completed fiscal year of such Person for which audited
financial statements are available; PROVIDED THAT if such financial
statements are not available, such adjustments shall be made on the
basis of unaudited financial information in respect of the target of
such Acquisition, to the extent such unaudited financial information is
reasonably acceptable to the Administrative Agent. Additionally, upon
receipt and approval by the Administrative Agent of documentation
evidencing new Municipal Service Contracts, the maximum Capital
Expenditure levels set forth above (as adjusted) may be increased by a
total
-6-
amount of Cdn$8,000,000; provided, however, that for the 12-month period
ending December 31, 2003, the maximum Capital Expenditure levels set
forth above (as adjusted) may be increased by a total amount of
Cdn$12,100,000 upon receipt and approval by the Administrative Agent of
documentation evidencing new Municipal Service Contracts. Any such
increase in the maximum Capital Expenditure levels set forth above for
Municipal Service Contracts may only be used to fund Capital
Expenditures necessary to permit the Borrower or its Subsidiaries to
fulfil their obligations under the new Municipal Service Contracts.
(f) Section 8.10(f) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(f) from and after February 1, 2003, good faith deposits
up to an aggregate of US $15,000,000 (including such deposits
made in connection with proposed acquisitions by the Borrower of
Earth Resource Management, Inc. and of a group of companies
collectively referred to as "Florida Recycling") made in
connection with prospective acquisitions to the extent such
deposits are funded solely from issuances of equity by the
Borrower or any Subsidiary (it being understood and agreed that
the amount of such deposits made in connection with acquisitions
actually consummated by the Borrower shall be added back to the
aggregate total amount available for all such deposits
hereunder);
(g) Section 9.1 of the Credit Agreement is hereby amended to
insert the following new subsections (s) and (t) which shall be stated
to read as follows:
(s) OMNI ACQUISITION-RELATED OBLIGATIONS. (i) The Xxxxx
Investors and the investors under the Omni Subscription
Agreements fail to fund, by May 1, 2003 (or such later closing
date as is agreed to under one or more amendments to the Majority
Purchase Agreement), net cash proceeds of at least US$50,000,000.
(ii) (A) Any breach, default or other event occurs under any of
the Xxxxx Preferred Stock Documents which permits one or more of
the holders of the Xxxxx Preferred Stock to require redemption of
the Xxxxx Preferred Stock or (B) one or more of the holders of
the Xxxxx Preferred Stock commence any proceeding or take any
action (1) to redeem the Xxxxx Preferred Stock, (2) to cause, or
attempt to cause, the payment of cash dividends under the Xxxxx
Preferred Stock or (3) which is otherwise restricted thereunder
as per the terms set forth in ANNEX B to the Second Amendment or
(C) the Borrower, the issuer of the Xxxxx Preferred Stock or any
Subsidiary agrees to any amendment to any of the Xxxxx Preferred
Stock Documents which amendment is materially adverse to the
interests, rights or remedies of any of the Lenders, the
Administrative Agent or the ability of the Borrower or any
Subsidiary to fufill its obligations under the Loan Documents.
(t) FLORIDA COLLATERAL MORTGAGE. Any filing for record of
a notice is made by any Person pursuant to Section 697.04,
Florida Statutes, limiting the maximum
-7-
principal amount that may be secured by any Collateral Mortgage
in respect of real property located in the State of Florida.
(h) SCHEDULE 1.1(B) to the Credit Agreement is hereby amended and
restated in its entirety to read as set forth on Annex A hereto.
2. WAIVERS AND CONSENTS. In reliance on the representations, warranties,
covenants and agreements set forth in this Agreement, the Administrative Agent
and the Lenders party hereto hereby consent to (i) the following waivers
requested by the Borrower as set forth in subsections (a) and (b) of this
SECTION 2 and (ii) the consummation of the following transactions by the
Borrower as set forth in subsections (c) and (d) of this SECTION 2, in each case
subject to the satisfaction of the remaining conditions in Section 8.11 of the
Credit Agreement and the conditions contained in Section 4 of this Agreement:
(a) The waiver of compliance with SECTION 8.6.3 of the Credit Agreement only to
the extent such Section would otherwise require, during all dates commencing on
January 1, 2003 and ending on or prior to June 30, 2003, compliance with such
Section at any time other than at the end of the Computation Periods ending on
March 31, 2003 and June 30, 2003, it being understood and agreed that compliance
with such Section on and after July 1, 2003 shall continue to be required at all
times during and at the end of all subsequent Computation Periods;
(b) The waiver of all Events of Default, if any, in effect on the date hereof
under SECTION 9.1(j) of the Credit Agreement as a result of the Borrower's
acquisition (the "XXXXXXXXX ACQUISITION") of 23.5% of the membership interests
in the capital of Omni from Xxxxxx X. Xxxxxxxxx, Xx. ("XXXXXXXXX") in violation
of SECTION 8.10 of the Credit Agreement; PROVIDED THAT the Xxxxxxxxx Acquisition
has been consummated (i) for aggregate consideration not in excess of
US$8,250,000 in cash PLUS 2,050,000 shares of common stock of the Borrower PLUS
the royalty payments in accordance with the Omni Royalty Agreement and (ii)
pursuant to a purchase agreement in the form provided to the Administrative
Agent (the "XXXXXXXXX PURCHASE AGREEMENT");
(c) The acquisition (the "MAJORITY ACQUISITION") of 76.5% of the membership
interests in the capital of Omni from certain sellers ("MAJORITY SELLERS") (for
aggregate consideration, including deposits heretofore made, not in excess of
US$57,325,000 PLUS the royalty payments in accordance with the Omni Royalty
Agreement) on the terms and conditions set forth in and pursuant to a purchase
agreement in the form provided to the Administrative Agent (the "MAJORITY
PURCHASE AGREEMENT"), the assumption of certain unsecured indebtedness in the
principal amount not in excess of US$3,500,000 currently owed by Omni to Xxxxxx
Xxxxxxxxxx (the "GANNARELLI DEBT"), the Omni Land Swap (as defined below) and
the Xxxxxx Lease and Option Transactions; PROVIDED THAT (i) no Unmatured Event
of Default or Event of Default has then occurred or is continuing or would arise
after giving effect to the Majority Acquisition, (ii) (A) the mortgage loan owed
by Omni, the Borrower or any Subsidiary to Southern Community Bank shall have
been repaid in full upon, or substantially concurrently with, the consummation
of the Majority Acquisition and (B) Southern Community Bank shall have (1)
released its liens on all assets and properties of Omni, the Borrower or any
Subsidiary (including without
-8-
limitation any portion of the Omni Landfill Site) and (2) executed and delivered
a payoff letter in form and substance acceptable to the Administrative Agent,
(iii) the Borrower shall have complied with Section 4 hereof and (iv) the Xxxxxx
Lease (as defined below) is subject and subordinate to the Omni Landfill
Mortgages and the Administrative Agent's Mortgage on the New Omni Property. As
used herein, "OMNI LAND SWAP" means certain transactions between Omni and
Bronsons, a Florida general partnership, pursuant to which Omni will make
aggregate cash payments not in excess of US$1,000,000 and exchange 2300 acres of
real property owned by it (for which it will obtain releases of various recorded
and unrecorded claims) for contiguous parcels adjacent to real property
currently owned by Omni (the "New Omni Property") comprising approximately 1900
acres, (whereby the New Omni Property shall become a portion of the location for
the Omni Landfill Site). As used herein, "XXXXXX LEASE AND OPTION TRANSACTIONS"
means certain real property lease and purchase option transactions between Omni
and H. Xxxx Xxxxxx, Xx. and Xxxxx Xxxx Xxxxxx III (with their successors and
assigns, the "Whaleys") which Omni agreed to enter into under an Agreement for
Lease/Purchase of Real Property dated February 25, 2000, which transactions
involve the lease, following the consummation of the Omni Land Swap, of
approximately 1,100 acres (apart from the Landfill Site) by Omni to the Whaleys
(such lease, the "XXXXXX LEASE") and the grant of an option by Omni to the
Whaleys with respect to the purchase of such acreage at fair market value; it
being understood and agreed that "XXXXXX LEASE AND OPTION TRANSACTIONS" will
also include any Asset Sale resulting from the exercise, if any, by the Whaleys
of the purchase option described above.
(d) The issuance from time to time by Waste Services, Inc. and or the Borrower
of certain redeemable preferred stock (the "XXXXX PREFERRED STOCK") and certain
warrants to purchase common stock (the "Xxxxx Warrants") to the Xxxxx Investors;
PROVIDED THAT (i) the Xxxxx Preferred Stock shall be subject to the terms,
conditions and restrictions as described in Annex B hereto and (ii) the Borrower
shall have complied with Section 4 hereof.
3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the
Administrative Agent and each Lender that, as of the Effective Date:
(a) This Agreement has been duly authorized, executed and delivered by the
Borrower and duly acknowledged by each Loan Party other than the Borrower, and
the Credit Agreement, as amended hereby, constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
(b) The representations and warranties of the Borrower and each other Loan Party
set forth in each Loan Document, as amended hereby and taking into account the
matters consented to herein, are true and correct in all material respects on
and as of the Effective Date (except where such representation or warranty
expressly relates to a different date).
(c) The Borrower and each other Loan Party are in compliance with their
respective covenants in each Loan Document, as amended hereby and taking into
account the matters consented to herein, and no Event of Default or Unmatured
Event of Default has occurred and is continuing or will result from the
effectiveness of this Agreement or the Omni Acquisition.
-9-
(d) No event or circumstance has occurred since December 31, 2002 that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(e) The Borrower has provided to the Administrative Agent true, complete and
correct executed copies of the Xxxxxxxxx Purchase Agreement and the Majority
Purchase Agreement and has provided the Administrative Agent with all other
material documents, instruments and agreements related to the Omni Acquisition,
including all amendments and modifications thereto (whether characterized as an
amendment, modification, waiver, consent or similar document) (collectively,
together with the Xxxxxxxxx Purchase Agreement and the Majority Purchase
Agreement, the "OMNI ACQUISITION DOCUMENTS"). No material rights or obligations
of any party to any of the Omni Acquisition Documents have been waived and no
party to any of the Omni Acquisition Documents is in default of its obligations
or in breach of any representations or warranties made thereunder (but only to
the extent of the knowledge of the Borrower in the case of any such party which
is a seller thereunder). Each of the Omni Acquisition Documents is a valid,
binding and enforceable obligation of each party thereto in accordance with its
terms and is in full force and effect, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability. Each representation and warranty made by each party in the Omni
Acquisition Documents is true and correct on the date hereof (but only to the
extent of the knowledge of the Borrower in the case of any such party which is a
seller thereunder). The Borrower will not amend, modify or waive any material
provision of the Omni Acquisition Documents.
4. CONDITIONS TO EFFECTIVENESS. This Agreement shall become effective on the
date (the "EFFECTIVE DATE") that the Administrative Agent shall have received
(a) this Agreement, duly executed by the Borrower and the Required Lenders, and
duly acknowledged by each Loan Party other than the Borrower, (b) copies of the
Omni Subscription Agreements and the Xxxxx Preferred Stock Documents, duly
executed by each investor party thereto and certified in each case by the
Borrower to be true and correct, all in form and substance satisfactory to the
Administrative Agent and its counsel, (c) evidence reasonably satisfactory to
the Administrative Agent that on or before June 30, 2003 (i) the Omni
Acquisition has been completed and (ii) the Xxxxx Investors and the investors
under the Omni Subscription Agreements have invested net cash proceeds in an
amount sufficient to fund, among other things, the portion of the consideration
due under the Majority Purchase Agreement , (d) as a condition to the
effectiveness of the consent hereunder to the Omni Acquisition, fully executed
copies of the Omni Acquisition Documents, certified in each case by the Borrower
to be true and correct and all in form and substance satisfactory to the
Administrative Agent and its counsel and (e) for the account of each Lender that
executes and delivers to the Administrative Agent or its counsel its signature
page hereto by such time as is required by the Administrative Agent, an
amendment fee equal to 0.25% of such Lender's Commitment.
The continued effectiveness of the consent set forth in Section 2 of this
Agreement is subject to the Administrative Agent's satisfaction that (x) by no
later than 30 days after the date hereof, the Administrative Agent shall have
received executed copies of the assumption agreement, legal opinions and any
other instruments and documents reasonably requested by the Administrative
-10-
Agent in connection with the amalgamation (effective January 1, 2003) of certain
Subsidiaries with the Borrower and (y) by no later than 60 days after the date
of consummation of the Omni Acquisition:
(1) The Administrative Agent shall have received executed security documents
requested by the Administrative Agent (including without limitation first
priority mortgages on the relevant parcels of land constituting the Omni
Landfill Site (the "Omni Landfill Mortgages") and other security documents from
the applicable Target and each of its subsidiaries), the other documents
contemplated by Sections 8.11 and 8.25 of the Credit Agreement and any other
instruments and documents requested by, and in form and substance satisfactory
to, the Administrative Agent; and
(2) All the security documents and other relevant instruments and documents
referred to in the foregoing Section 4(1) shall have been registered in all
offices in which, in the opinion of the Administrative Agent or its counsel,
registration is necessary or of advantage to perfect and protect the priority of
the Liens intended to be created thereby, and duplicate copies of such security
documents (or financing statements in respect thereof, as applicable) bearing or
accompanied by appropriate endorsements or certificates of registration shall
have been delivered to the Administrative Agent. The Administrative Agent shall
have received and be satisfied with the results of all personal property,
bankruptcy, execution and other searches conducted by the Administrative Agent
and its counsel with respect to the Borrower, the Targets and any subsidiaries
thereof in all jurisdictions selected by the Administrative Agent and its
counsel.
5. CREDIT AGREEMENT IN EFFECT. Except as specifically stated herein, this
Agreement shall not constitute (a) a modification or alteration of the terms,
conditions or covenants of any other Loan Document, or (b) a waiver, release or
limitation upon the exercise by the Administrative Agent or the Lenders of any
of their rights, legal or equitable, thereunder. The Credit Agreement shall
continue in full force and effect in accordance with the provisions thereof and
all Loan Documents issued or granted in connection therewith are hereby ratified
and confirmed and shall continue in full force and effect. Each of the
Administrative Agent and the Lenders reserves any and all rights and remedies
which such Person has had, has or may have had under the Loan Documents. After
this Agreement becomes effective as provided herein, any reference to the Credit
Agreement shall refer to the Credit Agreement as amended hereby.
6. APPLICABLE LAW. This Agreement shall be construed in accordance with and
governed by the laws of Ontario.
7. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which, when taken together, shall
constitute one instrument. Delivery of an executed counterpart of a signature
page of this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.
8. EXPENSES. The Borrower agrees to reimburse the Administrative Agent and the
Lenders for their out-of-pocket expenses in connection with this Agreement and
the transactions
-11-
contemplated hereby, including the legal fees and disbursements of Blake,
Xxxxxxx & Xxxxxxx LLP and Sidley Xxxxxx Xxxxx & Xxxx, counsel for the
Administrative Agent and the Lenders.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
CAPITAL ENVIRONMENTAL BANK OF AMERICA, N.A. (CANADA
RESOURCE INC./RESSOURCES BRANCH), as Administrative Agent and as a
ENVIRONNEMENTALES CAPITAL Lender
INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx Sales xx Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx III Name: Xxxxxx Sales xx Xxxxxxx
Title: Secretary Title: Assistant Vice-President
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Lender
By: /s/ Xxxxxx XxXxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Manager, Commercial Credit
THE TORONTO-DOMINION BANK, as a
Lender
By: /s/
------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/
------------------------------------
Name:
Title:
ACKNOWLEDGEMENT
The undersigned acknowledges and approves the foregoing Agreement and
agrees that each Loan Document to which it is a party is hereby ratified and
confirmed and remains in full force and effect.
DATED May 1, 2003.
RAM-PAK COMPACTION SYSTEMS LTD.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Authorized Officer
ANNEX A
SCHEDULE 1.1B
PRICING SCHEDULE
The Applicable Margins, the Stamping Fee Rate and the rate for Letter of
Credit fees and non-use fees shall be determined based on the applicable
Leverage Ratio as set forth below.
=======================================================================
LEVERAGE RATIO APPLICABLE APPLICABLE RATE FOR
MARGIN FOR MARGIN FOR NON-USE
CANADIAN PRIME RATE FEES
EURODOLLAR LOANS AND
RATE LOANS, U.S. BASE
STAMPING RATE LOANS(1)
FEE RATE
AND RATE
FOR LETTER
OF CREDIT
FEES
-----------------------------------------------------------------------
Level I greater than 3.75% 2.25% 0.50%
or equal to
3.25 to 1.00
-----------------------------------------------------------------------
Level II greater than 3.50% 2.00% 0.50%
or equal to
2.75 to 1.00
but less than
3.25 to 1.00
-----------------------------------------------------------------------
Level III greater than 3.25% 1.75% 0.50%
or equal to
2.25 to 1.00
but less than
2.75 to 1.00
-----------------------------------------------------------------------
Level IV greater than 3.00% 1.50% 0.50%
or equal to
1.75 to 1.00
but less than
2.25 to 1.00
-----------------------------------------------------------------------
Level V less than 1.75 2.75% 1.25% 0.50%
to 1.0
=======================================================================
The Applicable Margins, the Stamping Fee Rate and the rate for
Letter of Credit fees and non-use fees shall be based, commencing on May
1, 2003, on Level I until the Borrower delivers to the Administrative
Agent the financial statements for the Fiscal Quarter ending June 30,
2003 as required by SECTION 8.1 and the related compliance certificate
in the form of EXHIBIT C by the due date therefor, and from time to time
thereafter, shall be adjusted, to the extent applicable, as of the 45th
day (or, in the case of the last Fiscal Quarter of any Fiscal Year, as
of the 90th day) after the end of each Fiscal Quarter based on the
Leverage Ratio as of the last day of such Fiscal Quarter; PROVIDED that
if the Borrower fails to deliver the financial statements required by
SECTION 8.1 and the related compliance certificate in the form of
EXHIBIT C by the due date therefor, the Applicable Margins, the Stamping
Fee Rate and the rate for Letter of Credit fees and non-
-----------------
(1) U.S. Base Rate Loans pricing applies only in the limited circumstances
described in SECTION 2.2.2(g).
-2-
use fees that would apply at Level I shall be applicable from the
due date until such financial statements and the related compliance
certificate in the form of EXHIBIT C are delivered, and PROVIDED FURTHER
that if the Borrower or any Subsidiary issues any Subordinated Debt,
the Applicable Margins, the Stamping Fee Rate and the rate for Letter
of Credit fees and non-use fees that would apply at Level I shall be
applicable.
