SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of March 5, 2008
Exhibit 10.1
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (together with all
Exhibits, Schedules and Annexes hereto, this “Amendment”) is among WASTE SERVICES (CA)
INC., an Ontario corporation (“WSCA”), 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, WSCA, 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 a Second Amended and
Restated Credit Agreement, dated as of December 28, 2006 (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 permit the sale of its Jacksonville
Florida collection business.
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. Amendment. Upon 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, Section 7.5(e)
of the Credit Agreement is hereby amended by inserting the following at the end thereof:
“and the Disposition of the Jacksonville collection operations (the
“Jacksonville Disposition”) for approximately $57,500,000 in cash;
provided that any Reinvestment Notice in respect of the Net Cash Proceeds
of such Jacksonville Disposition may not exceed $15,000,000 and all Net
Cash Proceeds from the Jacksonville Disposition in excess of $15,000,000
are applied to prepay the Term Loans.
2. Conditions to Effectiveness.
The effectiveness of the amendment 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 WSCA, 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 3 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 (i)
those fees previously agreed to by the parties hereto in connection with this Amendment, and (ii)
all expenses incurred by the Administrative Agent (including, without limitation, legal fees)
reimbursable under the Credit Agreement and for which invoices have been presented;
(d) in consideration of this Amendment, the Borrower shall have paid to the Administrative
Agent, for the account of each Lender that executes and returns to the Administrative Agent its
consent no later than 5:00 p.m. (New York time) on March 4, 2008, a fee equal to 0.10% of such
Lender’s Aggregate Exposure (determined prior to giving effect to this Amendment);
(e) the Administrative Agent shall have received such other documents, instruments,
certificates, opinions and approvals as it may reasonably request.
3. Representations and Warranties. Each of WSCA and the Borrower represent and
warrants jointly and severally to the Administrative Agent and the Lenders (including any
Additional Lenders) as follows:
(a) Authority. Each of WSCA 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 WSCA and the Borrower of this
Amendment and by the Guarantors of the Consent, and the performance by each of WSCA, 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 WSCA 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.
4. 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.
5. Counterparts. This 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.
6. Severability. Any 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.
7. Governing Law. This Amendment and the rights and obligations of the parties under
this Amendment shall be governed by, and construed and interpreted in accordance with, the laws of
the State of New York.
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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 (CA) INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| WASTE SERVICES, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Executive Vice President, General Counsel & Secretary |
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(Signature
Page to Second Amendment)
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| XXXXXX COMMERCIAL PAPER INC., as Administrative Agent |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
(Signature
Page to Second Amendment)
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Annex 1
CONSENT OF GUARANTORS
Each of the undersigned is a Guarantor of the Obligations of the Borrower and/or of WSCA 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.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this Consent of
Guarantors as of the th day of March 2008.
| WASTE SERVICES OF ARIZONA, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| WASTE SERVICES OF FLORIDA, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| JACKSONVILLE FLORIDA LANDFILL, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| XXXXX ROAD LANDFILL AND RECYCLING, LTD., by Jacksonville Florida Landfill, Inc., its General Partner |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| OMNI WASTE OF OSCEOLA COUNTY LLC |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Manager | |||
| SLD LANDFILL, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
(Signature
Page to Consent)
| XXXXXXX RECYCLING AND TRANSFER, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| SUN COUNTRY MATERIALS, LLC |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| XXXX RECYCLING, INC. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| FREEDOM RECYCLING HOLDINGS, LLC |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| WS GENERAL PARTNER, LLC, by Waste Services, Inc., its Sole Member |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| CAPITAL ENVIRONMENTAL HOLDINGS COMPANY |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
| RAM-PAK COMPACTION SYSTEMS LTD. |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President & Secretary | |||
(Signature
Page to Consent)
