EXHIBIT 10.25
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REFINANCING FACILITY AMENDMENT
TO
AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT
Reference is made to that AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT (as amended and in effect from time to time, the "Credit
Agreement") dated as of the 22nd day of October, 2003, by and among WASTE
CONNECTIONS, INC., a Delaware corporation (the "Parent"), its Subsidiaries
(together with the Parent, collectively the "Borrowers"), such banks or other
financial institutions which may become a party thereto (the "Lenders"), and
FLEET NATIONAL BANK as Administrative Agent for the Lenders (the "Administrative
Agent"). Capitalized terms used herein without definition shall have the
respective meanings set forth in the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement, the original Term Loan Lenders
(the "Original Term Loan Lenders") made a term loan to the Borrowers in the
original principal amount of $175,000,000 (the "Original Term Loan");
WHEREAS, the Borrowers wish to refinance the Original Term Loan in full
from the proceeds of a Refinancing Term Loan in the aggregate principal amount
of $200,000,000; and
WHEREAS, the Borrowers have requested that the Refinancing Term Loan
Lenders and the Administrative Agent enter into this Refinancing Facility
Amendment in accordance with the terms of ss.4.7 of the Credit Agreement as set
forth herein (hereafter, this "Amendment");
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ss.1. REFINANCING TERM LOAN.
(a) Subject to the terms and conditions set forth herein, each of the
undersigned financial institutions identified on the signature pages
hereto as a "Refinancing Term Loan Lender" (individually, a
"Refinancing Term Loan Lender" and collectively, the "Refinancing Term
Loan Lenders") agrees to lend to the Borrowers on the Effective Date
(defined below) that amount set forth opposite its signature hereto of
the Refinancing Term Loan, which shall be in the aggregate principal
amount of $200,000,000. For the avoidance of doubt, each of the
Refinancing Term Loan Lenders hereby acknowledges and agrees that on
the Effective Date that portion of such Refinancing Term Loan Lender's
Original Term Loan which is in an amount equal to or less than the
amount set forth opposite such Refinancing Term Loan Lender's
signature hereto of the Refinancing Term Loan shall be deemed to have
been repaid in full and automatically, without any action on the part
of any Person, deemed to have been readvanced in an identical equal
amount, with such readvanced amount constituting such Refinancing Term
Loan Lender's Refinancing Term Loan. Upon the request and at the
direction of the Administrative Agent, each of the Refinancing Term
Loan Lenders hereby agrees to make any necessary wire transfers to
such other Term Loan Lenders as directed by the Administrative Agent
in order for each Refinancing Term Loan Lender's portion of the
Refinancing Term Loan to be consistent with that amount set forth
opposite its signature hereto.
(b) Upon payment of the Original Term Loan (the "March 2004 Prepayment"),
the Refinancing Term Loan shall be thereafter the "Term Loan" referred
to and as defined in the Credit Agreement, shall constitute an
Obligation of the Borrowers, shall amortize on the schedule and be
subject to the mandatory and optional prepayment provisions as set
forth in ss.4 of the Credit Agreement for the Term Loan, and the
outstanding principal amount thereof shall be due and payable on the
Term Loan Maturity Date. The Refinancing Term Loan shall bear interest
from and after the Effective Date as set forth in ss.4.6 of the Credit
Agreement (as amended by this Amendment). The Borrowers jointly and
severally promise to pay to the Administrative Agent for the account
of the Refinancing Term Loan Lenders the principal of and interest on
the Refinancing Term Loan in accordance with the provisions of ss.4 of
the Credit Agreement (as amended by this Amendment).
(c) Immediately following the March 2004 Prepayment (i) the Credit
Agreement shall be amended in accordance with the provisions of
ss.ss.2 through 4 below, (ii) all references in the Credit Agreement
and the other Loan Documents to the words "Term Loan" shall be deemed
to be references to or to relate to the Refinancing Term Loan advanced
pursuant to this ss.1, (iii) the Refinancing Term Loan shall be
governed by and subject to all of the provisions, terms and conditions
set forth in the Credit Agreement and the other Loan Documents in
every respect as though such Refinancing Term Loan had been originally
referred to therein as the "Term Loan", and (iv) thereafter the
Refinancing Term Loan shall be referred to as the Term Loan. In
furtherance of and not in limitation of the foregoing, and
notwithstanding anything to the contrary contained herein, the
amendments effected by the provisions of ss.ss.2 through 4 below shall
only be applicable to the Refinancing Term Loan and shall not be
applicable to the Original Term Loan.
(d) Each Refinancing Term Loan Lender, by execution of this Amendment,
hereby agrees to be bound by, and shall be entitled to the benefits
of, all of the terms, conditions and provisions of the Credit
Agreement applicable to the Term Loan Lenders as if such Refinancing
Term Loan Lender had been one of the lending institutions originally
executing the Credit Agreement as a "Term Loan Lender"; provided that
nothing herein shall be construed as making any Refinancing Term Loan
Lender liable to the Borrowers or the other Lenders in respect of any
acts or omissions of any party to the Credit Agreement or in respect
of any other event occurring prior to the Effective Date (except where
such Refinancing Term Loan Lender was also an Original Term Loan
Lender). Each Refinancing Term Loan Lender (a) represents and warrants
that (i) it is duly and legally authorized to enter into this
Amendment, (ii) the execution, delivery and performance of this
Amendment does not conflict with any provision of law or of the
charter or by-laws of the Refinancing Term Loan Lender, or of any
agreement binding on the Refinancing Term Loan Lender, (iii) all acts,
conditions and things required to be done and performed and to have
occurred prior to the execution, delivery and performance of this
Amendment, and to render the same the legal, valid and binding
obligation of the Refinancing Term Loan Lender, enforceable against it
in accordance with its terms, have been done and performed and have
occurred in due and strict compliance with all applicable laws; (b)
confirms that it has received a copy of the Credit Agreement and the
Loan Documents, together with copies of the most recent financial
statements delivered pursuant toss.ss.6.4 and 7.4 thereof and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Amendment; (c)
agrees that it will, independently and without reliance upon the other
Lenders or the Administrative Agent 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
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Credit Agreement; (d) represents and warrants that it is eligible to
become a party to the Credit Agreement under the terms and conditions
of the Credit Agreement as amended hereby; (e) appoints and authorizes
the Administrative Agent to take such action on its behalf and to
exercise such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental
thereto; and (f) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Term Loan Lender.
(e) The Borrowers shall, within five (5) days after a request by a
Refinancing Term Loan Lender to the Administrative Agent, deliver to
each such requesting Refinancing Term Loan Lender a Term Note
evidencing such Refinancing Term Loan Lender's portion of the Term
Loan.
SS.2. AMENDMENT TOSS.4.5 OF THE CREDIT AGREEMENT. Section 4.5 of the Credit
Agreement is hereby amended by inserting the following sentence at the end of
such section:
"Notwithstanding anything to the contrary above, if the Borrowers
prepay the Refinancing Term Loan in whole or in part prior to the
first anniversary thereof from the proceeds of a new Refinancing Term
Loan made pursuant ss.4.7, the Borrowers shall pay a premium with
respect to each such prepayment in an amount equal to 1% of the amount
prepaid."
SS.3. AMENDMENT TO SS.4.6 OF THE CREDIT AGREEMENT. Section 4.6 of the
Credit Agreement is hereby amended by deleting the text of such ss.4.6(a) and
(b) in their entirety and substituting in lieu thereof the following text:
"(a) To the extent that all or any portion of the Refinancing Term
Loan bears interest during such Interest Period at the Base Rate, the
Refinancing Term Loan or such portion thereof shall bear interest
during such Interest Period at the Base Rate plus 0.25%."
"(b) To the extent that all or any portion of the Refinancing Term
Loan bears interest during such Interest Period at the Eurodollar
Rate, the Refinancing Term Loan or such portion thereof shall bear
interest during such Interest Period at the rate per annum equal to
the Eurodollar Rate plus 1.75%."
SS.4. SCHEDULE 1. The Administrative Agent shall revise Schedule 1 of the
Credit Agreement to reflect each Refinancing Term Loan Lender's Term Loan
Percentage, dollar amount of its portion of the Term Loan and lending office as
of the Effective Date.
SS.5. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon the date each of the following conditions precedent is satisfied (the
"Effective Date"):
(a) the Administrative Agent shall have received a counterpart signature
page to this Amendment duly executed and delivered by each of the Borrowers, the
Administrative Agent and the Refinancing Term Loan Lenders; and
(b) the Administrative Agent shall be satisfied that the proceeds of the
Refinancing Term Loan shall be immediately applied and/or reallocated to prepay
the outstanding balance of the Original Term Loan in full, and the Borrowers
shall pay any breakage fees incurred by any Original Term Loan Lender in
connection with such prepayment and/or reallocation.
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SS.6. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers represents and
warrants as follows:
(a) The execution, delivery and performance of each of this Amendment and
the Credit Agreement, as amended as of the date hereof and the transactions
contemplated hereby and thereby are within the corporate (or equivalent company
or partnership) power and authority of such Borrower and have been or will be
authorized by proper corporate (or equivalent company or partnership)
proceedings, and do not (i) require any consent or approval of the stockholders,
members or partners of such Borrower, (ii) contravene any provision of the
organizational or charter documents or by-laws of such Borrower or any law, rule
or regulation applicable to such Borrower, or (iii) contravene any provision of,
or constitute an event of default or event which, but for the requirement that
time elapse or notice be given, or both, would constitute an event of default
under, any other material agreement, instrument or undertaking binding on such
Borrower.
(b) This Amendment and the Credit Agreement as amended as of the date
hereof and all of the terms and provisions hereof and thereof are the legal,
valid and binding obligations of such Borrower enforceable in accordance with
their respective terms except as limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally, and except that the remedy of specific performance or of
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution, delivery and performance of this Amendment and the
Credit Agreement as amended as of the date hereof and the transactions
contemplated hereby and thereby do not require any approval or consent of, or
filing or registration with, any governmental or other agency or authority, or
any other party.
(d) Each of the representations and warranties of the Borrowers contained
in the Credit Agreement or in any document or instrument delivered pursuant to
or in connection with the Credit Agreement shall be true as of the date as of
which they were made and are true and correct in all material respects as of the
date hereof with the same effect as if made on and as of the date hereof (except
to the extent of changes resulting from transactions contemplated or permitted
by the Credit Agreement and changes occurring in the ordinary course of business
which singly or in the aggregate are not materially adverse, and except to the
extent that such representations and warranties relate expressly to an earlier
date).
(e) No Default or Event of Default under the Credit Agreement has occurred
and is continuing.
SS.7. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. Each Borrower hereby affirms all of its
Obligations under the Credit Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and
unconditional promise to pay to the Lenders the Loans and all other amounts due
under the Credit Agreement (as amended hereby) and the other Loan Documents.
Each Borrower hereby confirms that the Obligations (including those in respect
of the Refinancing Term Loan) are and remain secured pursuant to the Security
Documents and pursuant to all other instruments and documents executed and
delivered by such Borrower as security for the Obligations. This Amendment and
the Credit Agreement shall hereafter be read and construed together as a single
document, and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Amendment.
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SS.8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SS.9. DELIVERY BY FACSIMILE OR OTHER ELECTRONIC TRANSMISSION. This
Amendment, to the extent signed and delivered by means of a facsimile machine or
other electronic transmission in which the actual signature is evident, shall be
treated in all manner and respects as an original agreement or instrument and
shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of any party
hereto, each other party hereto or thereto shall re-execute original forms
hereof and deliver them to all other parties. No party hereto shall raise the
use of a facsimile machine or other electronic transmission in which the actual
signature is evident to deliver a signature or the fact that any signature or
agreement or instrument was transmitted or communicated through the use of a
facsimile machine or other electronic transmission in which the actual signature
is evident as a defense to the formation of a contract and each party forever
waives such defense.
SS.10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
SS.11. MISCELLANEOUS. The captions in this Amendment are for convenience of
reference only and shall not define or limit the provisions hereof. The
Borrowers agree to pay to the Administrative Agent, on demand by the
Administrative Agent, all reasonable out-of-pocket costs and expenses incurred
by the Administrative Agent in connection with the preparation of this
Amendment, including reasonable legal fees.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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AGREED AND CONSENTED TO BY:
THE BORROWERS:
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WASTE CONNECTIONS, INC.
AMERICAN DISPOSAL COMPANY, INC.
AMERICAN SANITARY SERVICE, INC.
ARROW SANITARY SERVICE, INC.
BANDON DISPOSAL & RECYCLING, INC.
XXXXXX COUNTY LANDFILL, INC.
CAMINO REAL ENVIRONMENTAL CENTER, INC.
CITY SANITATION, INC.
COASTAL ROLLOFF SERVICE
COLD CANYON LAND FILL, INC.
COMMUNITY REFUSE DISPOSAL INC.
CORRAL DE XXXXXX LAND COMPANY
XXXXX TRANSFER & RECYCLING, INC.
X. X. DISPOSAL CO., INC.
DENVER REGIONAL LANDFILL, INC.
ENVIRONMENTAL TRUST COMPANY
ETC OF GEORGIA, INC.
XXXXXX COUNTY LANDFILL, INC.
G & P DEVELOPMENT, INC.
ISLAND DISPOSAL, INC.
J BAR J LAND, INC.
LEALCO, INC.
LES' COUNTY SANITARY, INC.
LES' SANITARY SERVICE, INC.
MADERA DISPOSAL SYSTEMS, INC.
MAMMOTH DISPOSAL COMPANY
MANAGEMENT ENVIRONMENTAL NATIONAL, INC.
XXXXX COUNTY GARBAGE CO., INC.
MILLENNIUM WASTE INCORPORATED
MISSION COUNTRY DISPOSAL
MORRO BAY GARBAGE SERVICE
XXXXXX'X DISPOSAL COMPANY, INC.
NEBRASKA ECOLOGY SYSTEMS, INC.
XXXXXX COUNTY LANDFILL, INC.
NORTH BEND SANITATION SERVICE, INC.
By:
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Name:
Title:
NORTHERN PLAINS DISPOSAL, INC.
OKLAHOMA CITY WASTE DISPOSAL, INC.
OKLAHOMA LANDFILL HOLDINGS, INC.
OSAGE LANDFILL, INC.
RED CARPET LANDFILL, INC.
RH FINANCIAL CORPORATION
RHINO SOLID WASTE, INC.
SAN XXXX GARBAGE COMPANY
XXXXX SOLID WASTE DISPOSAL COMPANY
SOUTH COUNTY SANITARY SERVICE, INC.
SOUTHERN PLAINS DISPOSAL, INC.
TACOMA RECYCLING COMPANY, INC.
TENNESSEE WASTE MOVERS, INC.
WASCO COUNTY LANDFILL, INC.
WASTE CONNECTIONS MANAGEMENT SERVICES, INC.
WASTE CONNECTIONS OF ALABAMA, INC.
WASTE CONNECTIONS OF ARIZONA, INC.
WASTE CONNECTIONS OF ARKANSAS, INC.
WASTE CONNECTIONS OF CALIFORNIA, INC. (F/K/A XXXXXX DISPOSAL SERVICE, INC.)
WASTE CONNECTIONS OF COLORADO, INC.
WASTE CONNECTIONS OF ILLINOIS, INC.
WASTE CONNECTIONS OF IOWA, INC. (F/K/A XXXXXX WASTE SYSTEMS INC.)
WASTE CONNECTIONS OF KANSAS, INC.
WASTE CONNECTIONS OF KENTUCKY, INC.
WASTE CONNECTIONS OF MINNESOTA, INC. (F/K/A XXXXXX'X SANITARY SERVICE, INC.)
WASTE CONNECTIONS OF MISSISSIPPI, INC. (F/K/A LIBERTY WASTE SERVICES OF
MISSISSIPPI HOLDINGS, INC.)
WASTE CONNECTIONS OF MISSOURI, INC.
WASTE CONNECTIONS OF MONTANA, INC.
WASTE CONNECTIONS OF NEBRASKA, INC.
WASTE CONNECTIONS OF NEW MEXICO, INC.
WASTE CONNECTIONS OF OKLAHOMA, INC. (F/K/A B & B SANITATION, INC.)
WASTE CONNECTIONS OF OREGON, INC. (F/K/A SWEET HOME SANITATION SERVICE, INC.)
WASTE CONNECTIONS OF SOUTH DAKOTA, INC.(F/K/A XXXXX ENTERPRISES, INC.)
WASTE CONNECTIONS OF TENNESSEE, INC. (FKA LIBERTY WASTE SERVICES OF TENNESSEE
HOLDINGS, INC.)
WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC. (F/K/A/ KINGSBURG DISPOSAL
SERVICE, INC.)
WASTE CONNECTIONS OF UTAH, INC.
By:
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Name:
Title:
WASTE CONNECTIONS OF WASHINGTON, INC.
WASTE CONNECTIONS OF WYOMING, INC.
WASTE CONNECTIONS TRANSPORTATION COMPANY, INC.
WASTE SERVICES OF N.E. MISSISSIPPI, INC.
WCI OF GEORGIA, INC.
WEST COAST RECYCLING AND TRANSFER, INC.
By:
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Name:
Title:
CONTRACTORS WASTE SERVICES, INC.
By:
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Name:
Title:
COLUMBIA RESOURCE CO., X.X.
XXXXXX-BUTTES LIMITED PARTNERSHIP
By: Management Environmental National, Inc.,
its General Partner
By:
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Name:
Title:
EL PASO DISPOSAL, LP
By: Waste Connections of Texas, LLC,
its General Partner
By: Waste Connections Management Services, Inc.,
its Manager
By:
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Name:
Title:
SANTEK ENVIRONMENTAL OF MISSISSIPPI, L.L.C.
WASTE SERVICES OF MISSISSIPPI, LLC
By: Waste Connections, Inc.,
its Managing Member
By:
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Name:
Title:
WASTE CONNECTIONS OF TEXAS, LLC
By: Waste Connections Management Services, Inc.,
its Manager
By: ----------------------------------
Name:
Title:
XXXXX WASTE SERVICES, LLC
By: Waste Connections, Inc.,
its Manager
By:
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Name:
Title:
ADMINISTRATIVE AGENT:
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FLEET NATIONAL BANK,
as Administrative Agent
By:
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REFINANCING TERM LOAN LENDERS
REFINANCING TERM LOAN AMOUNT:
By: $
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Name:
Title:
