THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Dated as of October 26, 2005
Exhibit 20.1
This THIRD AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT (together with all
Exhibits, Schedules and Annexes hereto, this “Amendment”) is among WASTE SERVICES (CA)
INC., an Ontario corporation formerly known as CAPITAL ENVIRONMENTAL RESOURCE INC./RESSOURCES
ENVIRONNEMENTALES CAPITAL INC. (“WSCI”), WASTE SERVICES, INC., a Delaware corporation (the
“Borrower”), and XXXXXX COMMERCIAL PAPER INC., as administrative agent for the Lenders (in
such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENTS:
A. The Borrower, WSCI, the Lenders, the Administrative Agent, Xxxxxx Brothers Inc., as
Arranger, CIBC World Markets Corp., as Syndication Agent, Bank of America, N.A., as Documentation
Agent, and Canadian Imperial Bank of Commerce, as Canadian Agent, entered into an Amended and
Restated Credit Agreement, dated as of April 30, 2004 (as amended, restated, modified or
supplemented prior to the date hereof, and together with all Annexes, Exhibits and Schedules
thereto, the “Credit Agreement”; capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit Agreement).
B. The Borrower desires to amend the Credit Agreement to, among other things, permit the
incurrence of additional Indebtedness, in the form of new Tranche C Term Loans, to be used for the
purpose of prepaying the Tranche B Term Loans and for paying fees, costs and expenses incurred in
connection therewith or relating thereto.
C. Each existing Lender with a Tranche B Term Loan Commitment or with outstanding Tranche B
Term Loans (an “Existing Tranche B Term Loan Lender”) that executes and delivers to the
Administrative Agent a consent to this Amendment together with a conversion notice, in the form
attached hereto as Exhibit C (each, a “Conversion Notice”) will be considered a continuing
Lender (each a “Continuing Lender”) and will exchange all of its outstanding Tranche B Term
Loans for Tranche C Term Loans on the Amendment Effective Date.
D. Each Person (other than a Continuing Lender) that agrees to make Tranche C Term Loans (an
“Additional Lender”) will, execute and deliver to the Administrative Agent, on or prior to
the Third Amendment Effective Date, a Lender Addendum, in the form attached hereto as Exhibit D and
make such Tranche C Term Loans to the Borrower on the Amendment Effective Date in the manner
contemplated by Section 3.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AmendmentUpon the terms and subject to the conditions set forth herein
and in reliance on the representations and warranties of the Loan Parties set forth herein, the
Credit Agreement is hereby amended as follows:
(a) The following new definitions are hereby added to Section 1.1 of the Credit
Agreement in the appropriate alphabetical order:
“Conversion Notice”: as defined in the Third Amendment.
“Newly Manufactured”: with respect to any car, truck, trailer
or other vehicle acquired by any Group Member, equal to or less than three
years old (as measured using the model year of such car, truck, trailer or
other vehicle as a starting point) as of the date of the acquisition by such
Group Member.
“Third Amendment”: the Third Amendment to this Agreement,
dated as of October 26, 2005.
“Third Amendment Effective Date”: the Amendment Effective
Date, as defined in the Third Amendment.
“Tranche C Term Loan”: as defined in Section 2.1.
“Tranche C Term Loan Commitments”: as to any Lender, the
obligation of such Lender, if any, to make a Tranche C Term Loan to the
Borrower hereunder or under the Third Amendment in a principal amount not to
exceed the amount set forth in the Conversion Notice or the Lender Addendum
delivered by such Lender, or as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same
may be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Tranche C Term Commitments is $98,500,000.
“Tranche C Term Loan Facility”: as defined in the definition
of “Facility” in this Section 1.1.
“Tranche C Term Loan Lender”: each Lender that has a Tranche C
Term Loan Commitment or is the holder of a Tranche C Term Loan.
“Tranche C Term Loan Percentage”: as to any Tranche C Term
Loan Lender at any time, the percentage which such Lender’s Tranche C Term
Loan Commitment then constitutes of the aggregate Tranche C Term Loan
Commitments (or, at any time after the Third Amendment Effective Date, the
percentage which the aggregate principal amount of such Lender’s Tranche C
Term Loans then outstanding constitutes of the aggregate principal amount of
the Tranche C Term Loans then outstanding).
(b) The definition of “Applicable Margin” contained in Section 1.1 of the Credit
Agreement is hereby amended and restated to read as follows:
“Applicable Margin”: for each Type of Loan under each
Facility, the rate per annum set forth opposite such Facility under the
relevant column heading below:
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| Canadian | ||||||||||||||||
| Prime Rate | Base Rate | Acceptance | Eurodollar | |||||||||||||
| Loans | Loans | Fee | Loans | |||||||||||||
US Revolving Credit
Facility (including
US Swing Line
Loans) |
N.A. | 3.50 | % | N.A. | 4.50 | % | ||||||||||
Canadian Revolving
Credit Facility
(including Canadian
Swing Line Loans) |
3.50 | % | 3.50 | % | 4.50 | % | 4.50 | % | ||||||||
Tranche B Term Loan
Facilities |
N.A. | 3.50 | % | N.A. | 4.50 | % | ||||||||||
Tranche C Term Loan
Facilities |
N.A. | 2.25 | % | N.A. | 3.25 | % | ||||||||||
provided, that on and after the first Adjustment Date occurring after the completion of two
full fiscal quarters of the Borrower after the Restatement Effective Date and in any event from and
after the Third Amendment Effective Date, the Applicable Margin with respect to Tranche B Term
Loans, Tranche C Term Loans, US Revolving Credit Loans, Canadian Revolving Credit Loans, US Swing
Line Loans and Canadian Swing Line Loans will be determined pursuant to the Pricing Grid.
(c) The definition of “Commitment” contained in Section 1.1 of the Credit Agreement
is hereby amended to insert the phrase, “, Tranche C Term Loan Commitment” immediately after the
phrase “Tranche B Term Loan Commitment.”
(d) The definition of “Consolidated EBITDA” contained in Section 1.1 of the Credit
Agreement is hereby amended to replace the words “not to exceed $3,000,000 over the term of this
Agreement” in clause (g) thereof, with the words “, provided, that in the event such
changes and expenses arise after the Third Amendment Effective Date the amount of such changes and
expenses shall not exceed $3,000,000.”
(e) The definition of “ECF Percentage” contained in Section 1.1 of the Credit
Agreement is hereby amended and restated to read as follows:
“ECF Percentage:” with respect to any fiscal year of the
Borrower, 50.0%; provided, that, with respect to any fiscal year of
the Borrower ending on or after December 31, 2005, the ECF Percentage shall
be 0.0% if the Consolidated Leverage Ratio as of the last day of such fiscal
year is not greater than 3.50 to 1.00.
The definition of “Facility” in Section 1.1 of the Credit Agreement is
hereby amended and restated as follows:
“Facility”: each of (a) the Tranche B Term Loan Commitment and
the Tranche B Term Loans made thereunder (the “Tranche B Term Loan
Facility”), (b) the Tranche C Term Loan Commitment and the Tranche C
Term Loans made thereunder (the “Tranche C Term Loan Facility”), (c)
the US Revolving Credit Commitments and the extensions of credit made
thereunder (the “US Revolving Credit Facility”), and (d) the
Canadian Revolving Credit Commitments and the extensions of credit made
thereunder (the “Canadian Revolving Credit Facility”).
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(f) The definition of “Interest Period” in Section 1.1 of the Credit Agreement is
hereby amended to delete the words “Tranche B Term Loan” in each place they appear in clause (ii)
therein and insert the phrase “Tranche C Term Loans” in lieu thereof.
(g) The definition of “Lender Addendum” in Section 1.1 of the Credit Agreement is
hereby amended and restated as follows:
“Lender Addendum”: with respect to any applicable Lender, a
Lender Addendum, substantially in the form of (i) Exhibit J or (ii) Exhibit
D to the Third Amendment.
(h) The definition of “Majority Facility Lenders” in Section 1.1 of the Credit
Agreement is hereby amended and restated as follows:
“Majority Facility Lenders”: with respect to (i) the Tranche B
Term Loan Facility, the holders of more than 50% of the sum of the aggregate
unpaid principal amount of the Tranche B Term Loans, (ii) the Tranche C Term
Loan Facility, the holders of more than 50% of the sum of the aggregate
unpaid principal amount of the Tranche C Term Loans or (iii) the Revolving
Credit Facilities, the holders of more than 50% of the Total Revolving
Credit Commitments then in effect or, if the Revolving Credit Commitments
have been terminated, the Total Revolving Extensions of Credit then
outstanding.”.
(i) The definition of “Term Loan” contained in Section 1.1 of the Credit Agreement
is hereby amended and restated as follows:
“Term Loan”: the collective reference to the Tranche B Term
Loans, the Tranche C Term Loans and any loans made under the Incremental
Facility.
(j) The definition of “Term Loan Facilities” contained in Section 1.1 of the Credit
Agreement is hereby amended to insert the phrase “, Tranche C Term Loan Facilities” immediately
after the phrase “Tranche B Term Loan Facilities”.
(k) The definition of “Term Loan Lenders” contained in Section 1.1 of the Credit
Agreement is hereby amended to delete the period at the end thereof and insert the phrase “and the
Tranche C Term Loan Lenders.” in lieu thererof.
(l) The definition of “Term Loan Percentages” contained in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
“Term Loan Percentages”: with respect to (i) any Lender
holding Tranche B Term Loans, the Tranche B Term Loan Percentage of such
Lender and (ii) any Lender holding Tranche C Term Loans, the Tranche C Term
Loan Percentage of such Lender.
(m) The following definitions contained in Section 1.1 of the Credit Agreement are
hereby deleted in their entirety:
(i) “Actual Leverage Ratios”
(ii) “Quarterly Test Date”
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(iii) “Target Leverage Ratios”
(iv) “TLR Certificate”
(n) Section 2.1 is hereby amended and restated in its entirety to read as follows:
“Subject to the terms and conditions hereof and of the Third Amendment,
(a) the Tranche C Term Loan Lenders severally agree to make (or convert
Tranche B Term Loans into) term loans (each, a “Tranche C Term
Loan”) to the Borrower on the Third Amendment Effective Date in an
amount for each Tranche C Term Loan Lender not to exceed the amount of the
Tranche C Term Loan Commitment of such Lender. The Term Loans may from
time to time be Eurodollar Loans or Base Rate Loans, as determined in
accordance with Section 2 of the Third Amendment or Section 2.13 hereof.”
(o) Section 2.2 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“Procedure for Tranche C Term Loans. Each Tranche C Term Loan
shall be made in accordance with Section 2 of the Third Amendment.”
(p) Section 2.3 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“Repayment of Term Loans. The Tranche C Term Loan of each
Tranche C Term Loan Lender shall mature in 22 consecutive quarterly
installments, commencing on December 31, 2005, each of which shall be in an
amount equal to such Lender’s Tranche C Term Loan Percentage multiplied by
the amount set forth below opposite such installment:
| Installment | Principal Amount | |||
December 31, 2005 |
$ | 250,000 | ||
March 31, 2006 |
$ | 250,000 | ||
June 30, 2006 |
$ | 250,000 | ||
September 30, 2006 |
$ | 250,000 | ||
December 31, 2006 |
$ | 250,000 | ||
March 31, 2007 |
$ | 250,000 | ||
June 30, 2007 |
$ | 250,000 | ||
September 30, 2007 |
$ | 250,000 | ||
December 31, 2007 |
$ | 250,000 | ||
March 31, 2008 |
$ | 250,000 | ||
June 30, 2008 |
$ | 250,000 | ||
September 30, 2008 |
$ | 250,000 | ||
December 31, 2008 |
$ | 250,000 | ||
March 31, 2009 |
$ | 250,000 | ||
June 30, 2009 |
$ | 250,000 | ||
September 30, 2009 |
$ | 250,000 | ||
December 31, 2009 |
$ | 250,000 | ||
March 31, 2010 |
$ | 250,000 | ||
June 30, 2010 |
$ | 23,500,000 | ||
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| Installment | Principal Amount | |||
September 30, 2010 |
$ | 23,500,000 | ||
December 31, 2010 |
$ | 23,500,000 | ||
March 31, 2011 |
$ | 23,500,000 | ||
(q) Section 2.4(a) of the Credit Agreement is hereby amended by deleting the last
sentence thereof in its entirety.
(r) Section 2.4(c) of the Credit Agreement is hereby amended by deleting the last
sentence thereof in its entirety.
(s) Section 2.8(a) of the Credit Agreement is hereby amended by amending and
restating clause (iii) thereof in its entirety to read as follows:
“(iii) the principal amount of each Tranche C Term Loan of such Tranche
C Term Loan Lender in installments according to the amortization schedule
set forth in Section 2.3 (or on such earlier date on which the Loans become
due and payable pursuant to Section 8).”
Section 2.11 of the Credit Agreement is hereby amended by (i) inserting the phrase “(a)” prior
to the words “Each of the Borrower and CERI” in the first line thereof, (ii) adding a new clause
(b) to read as follows:
”(b) In the event that, on or prior to the first anniversary of the
Third Amendment Effective Date, any Term Loan Lender receives a Repricing
Prepayment (as defined below), then at the time thereof, the Borrower shall
pay to such Term Loan Lender a prepayment premium equal to 1.0% of the
amount of such Repricing Prepayment. As used herein, with respect to any
Term Loan Lender, a “Repricing Prepayment” is the amount of
principal of the Term Loans of such Term Loan Lender that is prepaid by the
Borrower substantially concurrently with the incurrence by the Borrower or
any of its Subsidiaries of new replacement term loans that have interest
rate margins lower than the Applicable Margin then in effect for the Term
Loan so prepaid; provided, that no refinancing of the Term Loans in
connection with the termination of this agreement shall be a Repricing
Prepayment.”
(t) Section 6.10(i) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(i) Notwithstanding anything in this Section 6.10 or in Section 5.11
of the Guarantee and Collateral Agreement to the contrary, with respect to
any Newly Manufactured cars, trucks, trailers and other vehicles, the
ownership interest in which is evidenced by a certificate of title, acquired
on or after January 1, 2004, from and after the date which is 45 days after
the Second Amendment Effective Date and until the date that the Borrower
delivers a certificate to the Administrative Agent pursuant to Section
6.2(b) demonstrating a Consolidated Leverage Ratio not greater than 4.50 to
1.00, the Borrower shall take any and all actions necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in substantially all such Newly
Manufactured cars, trucks, trailers and other
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vehicles which are owned by any Group Member located in the United
States of America; provided, that, at the expiration of such period
the Administrative Agent shall, at the request of the Borrower release such
perfected security interest and return all certificates of title and take
all other actions necessary or advisable to release such perfected security
interests.”
(u) Section 7.1(a) of the Credit Agreement is hereby amended to add the following
proviso after the words “the ratio set forth below opposite such fiscal quarter”:
“(provided, that if the Borrower incurs more than $5,000,000 of Indebtedness
pursuant to Section 7.2(g)(ii) prior to June 30, 2007, the maximum Consolidated
Leverage Ratio for FQ3 2005 or, if later, the date of such incurrence, through and
including FQ2 2007, shall be 4.25 : 1.00)”.
(v) Section 7.2(g) of the Credit Agreement is hereby amended (i) to delete the
following text in clause (i) thereof: “if the then applicable Actual Leverage Ratios are not
greater than the Target Leverage Ratios and the Borrower shall have delivered the TLR Certificate,
if applicable”, (ii) to delete the following text immediately prior to clause (ii) thereof: “if the
then applicable Actual Leverage Ratios are not greater than the Target Leverage Ratios and the
Borrower shall have delivered the TLR Certificate, if applicable”, and (ii) to amend and restate
clause (ii) as follows: “unsecured subordinated Indebtedness of the Borrower in an aggregate
principal amount not to exceed $5,000,000, the proceeds of which may be used for general corporate
purposes, provided that such amount may be increased to $100,000,000 if (x) prior to and after
giving effect to the incurrence of such Indebtedness the Consolidated Leverage Ratio is less than
4.25 to 1.00 or, if less, the then applicable maximum Consolidated Leverage Ratio under Section
7.1(a) and (y) the Borrower provides written confirmation to the Administrative Agent of the
effectiveness of the proviso set forth in Section 7.1(a);”.
(w) Section 7.2 of the Credit Agreement is further amended (i) to delete the “and”
at the end of Section 7.2(i), (ii) to re-letter paragraph (j) as paragraph (k); and (iii) to insert
the following new paragraph (j):
“(j) Indebtedness issued to insurance companies to finance insurance
premiums payable to such insurance companies in connection with insurance
policies purchased by a Loan Party in the ordinary course of business in an
aggregate amount not to exceed $5,000,000 at any time outstanding; and”
(x) Section 7.3 of the Credit Agreement is amended (i) to delete the “and” at the
end of Section 7.3(l), (ii) to re-letter paragraph (m) as paragraph (n) and (iii) to add a new
Section 7.3(m) to read as follows:
“(m) Liens on unearned premiums in respect of insurance policies
securing insurance premium financing permitted under Section 7.2(j); and”
(y) Section 7.5(e) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(e) the Disposition of assets not otherwise permitted to be disposed
of pursuant to this Section 7.5 having a fair market value of $15,000,000,
in the aggregate for any fiscal year of the Borrower.”
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(z) Section 7.5(g) of the Credit Agreement is hereby amended to delete the proviso
at the end thereof and insert the following proviso in lieu thereof:
“; provided further that the fair market value of all
such assets of the Group Members exchanged or “swapped” in any fiscal year
of the Borrower does not exceed $15,000,000”
(aa) Section 7.7 of the Credit Agreement is hereby amended (i) to replace the number
“$45,000,000” with the number “$50,000,000” and (ii) to delete the following text in clause (a)
thereof: “or, with respect to any fiscal year, if the then applicable Actual Leverage Ratios are
not greater than the Target Leverage Ratios and the Borrower shall have delivered the TLR
Certificate, if applicable, $50,000,000” .
(bb) Section 7.8(h)(iv) of the Credit Agreement is hereby amended (i) to replace the
number “$100,000,000 in clause (x) thereof with the number “$75,000,000” and (ii) to replace the
number “$40,000,000” in clause (y) thereof with the number “$30,000,000”.
(cc) Section 7.8(h) of the Credit Agreement is hereby further amended (i) to insert
the word “and” immediately after the end of clause (iv) thereof, (ii) to delete the “; and” at the
end of clause (v) thereof and insert a “.” in lieu thereof and (iii) to delete clause (vi) thereof
in its entirety.
(dd) Section 10.1(b) of the Credit Agreement is hereby amended to delete the
following text in the first sentence thereof: “if the then applicable Actual Leverage Ratios are
not greater than the Target Leverage Ratios and the Borrower shall have delivered the TLR
Certificate, if applicable.”
(ee) Annex A of the Credit Agreement is hereby amended and restated in its entirety
as the Annex A attached hereto as Exhibit A.
(ff) Exhibit G-1 to the Credit Agreement is hereby amended and restated in its
entirety and replaced with Exhibit G-1 attached hereto as Exhibit B.
2. Tranche C Term Loans.
(a) The “Tranche C Term Loan Commitment” of (i) any Continuing Lender shall
be the principal amount of its then outstanding Tranche B Term Loans or such lesser amount as is
determined by the Administrative Agent and notified to such Lender prior to the Amendment Effective
Date and (ii) any Additional Lender shall be the amount of such commitment set forth in the Lender
Addendum delivered by such Lender or such lesser amount as is allocated to it by the Administrative
Agent and notified to it prior to the Amendment Effective Date. The aggregate amount of Tranche C
Term Loan Commitments shall equal the aggregate principal amount of the Tranche B Term Loans
outstanding immediately prior to the Third Amendment Effective Date.
(b) The Borrower shall give the Administrative Agent irrevocable notice of borrowing
(which notice must be received by the Administrative Agent prior to 12:00 noon, New York City time,
one Business Day prior to the anticipated Amendment Effective Date) requesting that the Tranche C
Term Loan Lenders (as defined in Section 1(a)) make the Tranche C Term Loans (as defined in Section
1(a))on the Amendment Effective Date and specifying the amount to be borrowed. Upon receipt of
such notice the Administrative Agent shall promptly notify each Tranche C Term Loan Lender thereof.
Not later than 12:00 noon, New York City time, on the Amendment Effective Date each Tranche C Term
Loan Lender shall make available to the Administrative Agent at the Funding Office an amount
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in immediately available funds equal to the Tranche C Term Loan to be made by such Lender (or notify
the Administrative Agent to convert Tranche B Term Loans to Tranche C Term Loans in an
aggregate principal amount equal to such Tranche C Term Loan Lender’s Tranche C Term Loan
Commitment (as defined in Section 1(a)). The Administrative Agent shall make available to the
Borrower the aggregate of amounts made available to the Administrative Agent by the Tranche C Term
Loan Lenders in like funds. Tranche C Term Loan Commitments in existence on the Amendment
Effective Date and not funded on such date will terminate on such date. To the extent that Tranche
B Term Loans are repaid with proceeds of Tranche C Term Loans, such Tranche B Term Loans shall be
deemed to have been assigned and transferred to the Tranche C Term Loan Lenders (to be allocated
amongst such Lenders at the Administrative Agent’s discretion notwithstanding Section 2.18 of the
Credit Agreement) and thereafter shall be outstanding as Tranche C Term Loans held by the Tranche C
Term Loan Lenders subject to and in accordance with all terms, conditions and provisions of this
Agreement applicable to the Tranche C Term Loans.
(c) All Tranche C Term Loans made on the Amendment Effective Date will have the same
Types (in the same amounts) as applicable at such time to the Tranche B Term Loans and will have
initial Interest Periods ending on the same dates as the Interest Periods applicable at such time
to the Tranche B Term Loans, and the Eurodollar Rate applicable to such Tranche C Term Loans during
such initial Interest Periods will be the same as that applicable at such time to the Tranche B
Term Loans being refinanced. No accrued interest on the Tranche B Term Loans converted into
Tranche C Term Loans shall be payable on the Amendment Effective Date and no amounts under Section
2.21(c) of the Credit Agreement shall be payable in connection with such conversion.
(d) The Required Lenders hereby waive the requirements of Section 2.11 of the Credit
Agreement solely to the extent that such Section requires any notice of prepayment to be given in
respect of the Tranche B Term Loans to be prepaid on the Amendment Effective Date. Notwithstanding
that the Tranche B Term Loans shall be refinanced in full on the Amendment Effective Date, the
provisions of the Credit Agreement with respect to indemnification, reimbursement of costs and
expenses, increased costs and break funding payments will continue in full force and effect with
respect to, and for the benefit of, each Existing Tranche B Term Loan Lender in respect of such
Lender’s Tranche B Term Loans existing under the Credit Agreement prior to the Amendment Effective
Date.
3. Conditions to Effectiveness.
The effectiveness of the amendments contained in Section 1 hereof is conditioned upon
satisfaction of the following conditions precedent (the date on which all such conditions have been
satisfied being referred to herein as the “Amendment Effective Date”):
(a) the Administrative Agent shall have received (i) signed written authorization
from the Required Lenders to execute this Amendment on behalf of such Lenders, (ii) counterparts of
this Amendment signed by each of WSCI, the Borrower and the Administrative Agent, and (iii)
counterparts of the consent of the Guarantors attached hereto as Annex 1 (the “Consent”)
executed by each of the Guarantors;
(b) each of the representations and warranties in Section 4 below shall be true and
correct in all material respects on and as of the Amendment Effective Date;
(c) the Administrative Agent shall have received payment in immediately available
funds of all expenses incurred by the Administrative Agent (including, without limitation, legal
fees) reimbursable under the Credit Agreement and for which invoices have been presented;
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(d) the Administrative Agent shall have received executed legal opinions from
counsel to the Loan Parties, in form and substance reasonably acceptable to the Administrative
Agent;
(e) the Administrative Agent shall have received (i) commitments from banks and
other financial institutions with respect to the Tranche C Term Loans in an aggregate principal
amount equal to $98,500,000 and (ii) as applicable (x) a fully executed Lender Addendum with
respect to each such bank or other financial institution committing to fund such Tranche C Term
Loans (and pursuant to which, on the Amendment Effective Date, such bank or other financial
institution shall become a Tranche C Term Loan Lender, for all purposes under the Credit Agreement)
or (y) a fully executed Conversion Notice with respect to each Tranche B Term Lender electing to
convert its Tranche B Term Loans into Tranche C Term Loans (and pursuant to which on the Amendment
Effective Date all of the outstanding principal amount of Tranche B Term Loans held by such Lender
shall convert into Tranche C Term Loans); and
(f) the Administrative Agent shall have received such other documents, instruments,
certificates, opinions and approvals as it may reasonably request.
4. Representations and WarrantiesEach of WSCI and the Borrower represent and
warrants jointly and severally to the Administrative Agent and the Lenders (including the
Additional Lenders) as follows:
(a) Authority. Each of WSCI and the Borrower has the requisite corporate or
other organizational power and authority to execute and deliver this Amendment and to perform its
obligations hereunder and under the Credit Agreement (as amended hereby). Each of the Guarantors
has the requisite corporate or other organizational power and authority to execute and deliver the
Consent. The execution, delivery and performance by each of WSCI and the Borrower of this
Amendment and by the Guarantors of the Consent, and the performance by each of WSCI, the Borrower
and each other Loan Party of the Credit Agreement (as amended hereby) and each other Loan Document
to which it is a party, in each case, have been authorized by all necessary corporate or other
organizational action of such Person, and no other corporate or other organizational proceedings on
the part of each such Person is necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered on
behalf of each of WSCI and the Borrower. The Consent has been duly executed and delivered by each
of the Guarantors. Each of this Amendment, the Consent and, after giving effect to this Amendment,
the Credit Agreement and the other Loan Documents, (i) is the legal, valid and binding obligation
of each Loan Party party hereto and thereto, enforceable against such Loan Party in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or at law) and (ii) is
in full force and effect. Neither the execution, delivery or performance of this Amendment or of
the Consent or the performance of the Credit Agreement (as amended hereby), nor the performance of
the transactions contemplated hereby or thereby, will adversely affect the validity, perfection or
priority of the Administrative Agent’s Lien on any of the Collateral or its ability to realize
thereon. This Amendment is effective to amend the Credit Agreement as provided therein.
(c) Representations and Warranties. After giving effect to this Amendment,
the representations and warranties contained in the Credit Agreement and the other Loan Documents
(other than any such representations and warranties that, by their terms, are specifically made as
of a date other than the date hereof) are true and correct in all material respects on and as of the date
hereof as though made on and as of the date hereof.
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(d) No Conflicts. Neither the execution and delivery of this Amendment or
the Consent, nor the consummation of the transactions contemplated hereby and thereby, nor the
performance of and compliance with the terms and provisions hereof or of the Credit Agreement (as
amended hereby) by any Loan Party will, at the time of such performance, (a) violate or conflict
with any provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Person, (b) violate, contravene or materially
conflict with any Requirement of Law or Contractual Obligation (including, without limitation,
Regulation U), except for any violation, contravention or conflict which could not reasonably be
expected to have a Material Adverse Effect or (c) result in or require the creation of any Lien
(other than those permitted by the Loan Documents) upon or with respect to its properties. No
consent or authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the transactions
contemplated hereby.
(e) No Default. Both before and after giving effect to this Amendment, no
event has occurred and is continuing that constitutes a Default or Event of Default.
5. Reference to and Effect on Credit Agreement.
(a) Upon and after the effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”,
“thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and
be a reference to the Credit Agreement as modified hereby. This Amendment is a Loan Document.
(b) Except as specifically modified above, the Credit Agreement and the other Loan
Documents are and shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing, the Security Documents
and all of the Collateral described therein do and shall continue to secure the payment of all
Obligations under and as defined therein, in each case as modified hereby.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of any Secured Party
under any of the Loan Documents, nor, except as expressly provided herein, constitute a waiver or
amendment of any provision of any of the Loan Documents.
6. CounterpartsThis Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment
by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
7. SeverabilityAny provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
8. Governing LawThis Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[Remainder of page intentionally left blank]
11
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective officers as of the day and year first above written.
| WASTE SERVICES, INC., as Borrower | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Executive Vice President, General Counsel and Secretary | ||||
| WASTE SERVICES (CA) INC. | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Vice President and Secretary | ||||
| XXXXXX COMMERCIAL PAPER INC., as Administrative Agent | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Annex 1
CONSENT OF GUARANTORS
Each of the undersigned is a Guarantor of the Obligations of the Borrower and/or of WSCI under the
Credit Agreement and hereby (a) consents to the foregoing Amendment, (b) acknowledges that
notwithstanding the execution and delivery of the foregoing Amendment, the obligations of each of
the undersigned Guarantors are not impaired or affected and all guaranties given to the holders of
Obligations and all Liens granted as security for the Obligations continue in full force and
effect, and (c) confirms and ratifies its obligations under each of the Loan Documents executed by
it. Capitalized terms used herein without definition shall have the meanings given to such terms
in the Amendment to which this Consent is attached or in the Credit Agreement referred to therein,
as applicable.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this Consent of
Guarantors as of the 26th day of October 2005.
[Signature pages follow]
| OMNI WASTE OF OSCEOLA COUNTY LLC | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Manager | ||||
| CACTUS WASTE SYSTEMS, LLC | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Manager | ||||
| WASTE SERVICES OF ARIZONA, INC. | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Vice President and Secretary | ||||
| WASTE SERVICES OF FLORIDA, INC. | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Vice President and Secretary | ||||
| JACKSONVILLE FLORIDA LANDFILL, INC. | ||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Vice President and Secretary | ||||
| XXXXX ROAD LANDFILL AND RECYCLING, LTD., | |||||
| by Jacksonville Florida Landfill, Inc., its General Partner | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| FLORIDA RECYCLING
SERVICES, INC., a Delaware Corporation |
|||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| FLORIDA RECYCLING
SERVICES, INC., an Illinois Corporation |
|||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| FORT BEND REGIONAL LANDFILL LP | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| XXXXXXX HILLS TRANSFER STATION LP | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| WASTE SERVICES OF ALABAMA, INC. | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| WASTE SERVICES LIMITED PARTNER, LLC | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Manager | |||||
| WS GENERAL PARTNER,
LLC, by Waste Services, Inc., its Sole Member |
|||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Executive Vice President, General Counsel and Secretary | |||||
| XXXXXXX RECYCLING AND TRANSFER, INC. | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| CAPITAL ENVIRONMENTAL HOLDINGS COMPANY | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| RAM-PAK COMPACTION SYSTEMS LTD. | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| 6045341 CANADA INC. | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Vice President and Secretary | |||||
| GAP DISPOSAL 2001 LTD. | |||||
| By: | |||||
| Xxxx X. Xxxxxx | |||||
| Secretary | |||||
EXHIBIT A
PRICING GRID FOR TRANCHE C TERM LOANS, REVOLVING CREDIT LOANS AND SWING LINE LOANS
| Applicable Margin for Eurodollar | Applicable Margin for Base Rate | |||||||||||||||
| Loans | Loans | |||||||||||||||
| Revolving | Revolving | |||||||||||||||
| Credit Loans | Credit Loans | |||||||||||||||
| and Swing | and Swing | |||||||||||||||
| Consolidated Leverage Ratio | Term Loans | Line Loans | Term Loans | Line Loans | ||||||||||||
> 5.25 to 1.00 |
3.25 | % | 4.50 | % | 2.25 | % | 3.50 | % | ||||||||
£ 5.25 to 1.00 and >
4.50 to 1.00 |
3.25 | % | 4.00 | % | 2.25 | % | 3.00 | % | ||||||||
£ 4.50 to 1.00 and >
4.00 to 1.00 |
3.00 | % | 3.75 | % | 2.00 | % | 2.75 | % | ||||||||
£ 4.00 to 1.00 |
3.00 | % | 3.50 | % | 2.00 | % | 2.50 | % | ||||||||
The above Applicable Margins shall be reduced by 0.25% if the Borrower has obtained a senior
secured bank loan rating from Xxxxx’x Investors Service, Inc. of B2 or better and a senior secured
bank loan rating from Standard & Poor’s Ratings Group of B or better, effective as of the day after
the date on which such ratings are obtained.
Changes in the Applicable Margin with respect to Tranche C Term Loans, Revolving Credit Loans
and Swing Line Loans resulting from changes in the Consolidated Leverage Ratio shall become
effective on the date (the “Adjustment Date”) on which financial statements are delivered
to the Lenders pursuant to Sections 6.1(a) and (b) (but in any event not later than the 45th day
after the end of each of the first three quarterly periods of each fiscal year or the 90th day
after the end of each fiscal year, as the case may be) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any financial statements referred to above
are not delivered within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal period that would have
been covered thereby shall for the purposes of this definition be deemed to be greater than 5.25 to
1.00. Each determination of the Consolidated Leverage Ratio pursuant to this Pricing Grid shall be
made with respect to the period of four consecutive fiscal quarters of the Borrower ending at the
end of the period covered by the relevant financial statements.
A-1
EXHIBIT B
EXHIBIT G-1
TO THE CREDIT AGREEMENT
TO THE CREDIT AGREEMENT
FORM OF TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
FOR VALUE RECEIVED, the undersigned, Waste Services, Inc., a Delaware corporation (the
“Borrower”), hereby unconditionally promises to pay
to [_________] (the
“Lender”) or its registered assigns at the Payment Office specified in the Credit Agreement
(as hereinafter defined) in lawful money of the United States and in immediately available funds,
the principal amount of (a) [______] DOLLARS ($[___]), or, if less, (b) the unpaid
principal amount of the Tranche [B] [C] Term Loan made by the Lender pursuant to Section 2.1 of the
Credit Agreement. The principal amount shall be paid in the amounts and on the dates specified in
Section 2.3 of the Credit Agreement. The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 2.15 of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of the Tranche [B] [C] Term Loan made pursuant to the Credit Agreement and
the date and amount of each payment or prepayment of principal thereof, each conversion of all or a
portion thereof to another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in any such
endorsement shall not affect the obligations of the Borrower in respect of the Tranche [B] [C] Term
Loan.
This Note (a) is one of the Term Notes referred to in the Amended and Restated Credit
Agreement, dated as of April 30, 2004 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among the Borrower, the Lender, the other banks
and financial institutions or entities from time to time parties thereto, Xxxxxx Brothers Inc., as
exclusive advisor, sole lead arranger and sole book runner, Xxxxxx Commercial Paper Inc., as
administrative agent, CIBC World Markets Corp., as syndication agent, Bank of America, N.A., as
documentation agent, and Canadian Imperial Bank of Commerce, as Canadian agent, (b) is subject to
the provisions of the Credit Agreement (as amended through and including the Third Amendment) and
(c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is
hereby made to the Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were granted and the
rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all principal and all accrued
interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due
and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
| WASTE SERVICES, INC. |
||||
| By: | ||||
| Xxxx X. Xxxxxx | ||||
| Executive Vice President, General Counsel and Secretary | ||||
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
| Amount | Amount of Base Rate | |||||||||||
| Amount of Base Rate | Converted to | Amount of Principal of | Loans Converted to | Unpaid Principal Balance | ||||||||
| Date | Loans | Base Rate Loans | Base Rate Loans Repaid | Eurodollar Loans | of Base Rate Loans | Notation Made By | ||||||
Schedule B
to Term Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
| Amount Converted | Interest Period and | Amount of Principal | Amount of Eurodollar | Unpaid Principal | ||||||||||
| Amount of | to Eurodollar | Eurodollar Rate with | of Eurodollar Loans | Loans Converted to | Balance of | Notation | ||||||||
| Date | Eurodollar Loans | Loans | Respect Thereto | Repaid | Base Rate Loans | Eurodollar Loans | Made By | |||||||
Exhibit C
CONVERSION NOTICE
[To Be Completed For Each Fund]
[To Be Completed For Each Fund]
Reference is made to the Third Amendment (the “Third Amendment”), dated as of October
___, 2005 to the Amendment and Restated Credit Agreement, dated as of April 30, 2004 (as amended
from time to time prior to the date hereof, the “Credit Agreement”), among Waste Services,
Inc., a Delaware corporation (the “Borrower”), Waste Services (CA) Inc., an Ontario
corporation formerly known as Capital Environmental Resource Inc./Ressources Environnmentales
Capital Inc. (“WSCI”), the banks and other financial institutions and entities from time to
time party thereto (the “Lenders”) and Xxxxxx Commercial Paper Inc., as administrative
agent for the Lenders (in such capacity, the “Administrative Agent”). Capitalized terms
used but not otherwise defined herein are used with the meanings attributed thereto in the Credit
Agreement.
The undersigned Lender hereby irrevocably and unconditionally elects to convert
$[______] of the outstanding principal amount of the Tranche B Term Loan held by such
Lender into a Tranche C Term Loan (as defined in the Third Amendment) in a principal amount equal
to the amount of the Tranche B Term Loan converted hereby, effective only if, and only as and when
the Third Amendment becomes effective in accordance with its terms.
This Conversion Notice shall be governed by, and construed and interpreted in accordance with,
the laws of the state of New York.
This Conversion Notice may be executed by the parties hereto on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. Delivery of an executed signature page hereof by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused the Conversion Notice to be duly executed
and delivered by their proper and duly authorized officers as of this [___] day of October, 2005.
| By: | |||||
| Name: | |||||
| Title: | |||||
Exhibit D
FORM OF LENDER ADDENDUM
LENDER
ADDENDUM, dated as of ______ ___, 200___(this “Lender Addendum”), to the
Credit Agreement, dated as of April 30, 2003 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”), among Waste Services, Inc., a Delaware corporation
(the “Borrower”), Waste Services (CA) Inc., an Ontario corporation formerly known as
Capital Environmental Resource Inc./Ressources Environnmentales Capital Inc. (“WSCI”), the
banks and other financial institutions and entities from time to time party thereto (the
“Lenders”) and Xxxxxx Commercial Paper Inc., as administrative agent for the Lenders (in
such capacity, the “Administrative Agent”). Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides that any bank, financial institution or other entity
may become a party to the Credit Agreement with the consent of the Borrower and the Administrative
Agent (which consent, in the case of the Administrative Agent, shall not be unreasonably withheld)
by executing and delivering to the Borrower and the Administrative Agent a supplement to the Credit
Agreement in substantially the form of this Lender Addendum; and
WHEREAS, the undersigned now desires to become a party to the Credit Agreement as a Lender
thereunder;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the Credit Agreement, and agrees
that it shall, on the date this Lender Addendum is accepted by the Borrower and the Administrative
Agent, become a Lender for all purposes of the Credit Agreement to the same extent as if originally
a party thereto, with a commitment under the Tranche C Term Loan Facility of $[_________].
2. The undersigned (a) represents and warrants that it is legally authorized to enter into
this Lender Addendum; (b) confirms that it has received a copy of the Credit Agreement and each
other Loan Document existing as of the date of this Lender Addendum, together with copies of the
financial statements referred to in Section 6.1 of the Credit Agreement and such other documents
and information as it has deemed appropriate to make its own credit analysis and decision to enter
into this Lender Addendum; (c) agrees that it has made and will, independently and without reliance
upon the Administrative Agent, any other agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement or any instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement
or any instrument or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and
(e) agrees that it will be bound by the provisions of the Credit Agreement and each of the other
Loan Documents and will perform in accordance with their terms all the obligations which by the
terms of the Credit Agreement or the other Loan Documents are required to be performed by it as a
Lender including, without limitation, if it is organized under the laws of a jurisdiction outside
the United States, its obligations pursuant to Section 2.20 of the Credit Agreement.
3. The undersigned’s address for notices for the purposes of the Credit Agreement is as
follows:
Name of Lender: |
||
Notice Address: |
||
Attention: |
||
Telephone: |
||
Facsimile: |
||
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be executed and delivered by
a duly authorized officer on the date first above written.
| [INSERT NAME OF LENDER] | |||||
| By | |||||
| Name: | |||||
| Title: | |||||
Accepted this day of
, 200_
| WASTE SERVICES, INC. | ||||
By: |
||||
| Executive Vice President, General Counsel and Secretary | ||||
