FIRST AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO GUARANTEE AND US COLLATERAL AGREEMENT
Exhibit 20.1
FIRST AMENDMENT TO CREDIT AGREEMENT
AND
FIRST AMENDMENT TO GUARANTEE AND US COLLATERAL AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO GUARANTEE AND US COLLATERAL
AGREEMENT, dated as of September 1, 2009 (together with all Exhibits, Schedules and Annexes hereto,
this “Amendment”), is entered into among WASTE SERVICES (CA) INC., an Ontario corporation
(the “Canadian Borrower”), WASTE SERVICES, INC., a Delaware corporation (the “US
Borrower” and, together with the Canadian Borrower, the “Borrowers”), the Subsidiaries
of the Borrowers listed on the signature pages hereof under the heading “GUARANTORS”, as Guarantors
(the “Guarantors” and, together with the Borrowers, the “Loan Parties”), and
BARCLAYS BANK PLC, as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”).
PRELIMINARY STATEMENTS:
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, Barclays Capital, the
investment banking division of Barclays Bank PLC, and Banc of America Securities LLC, as Arrangers,
Bank of America, N.A., as Syndication Agent, Bosic Inc., SunTrust Bank and The Bank of Nova Scotia,
as Co-Documentation Agents, and The Bank of Nova Scotia, as Canadian Agent, are parties to that
certain Credit Agreement, dated as of October 8, 2008 (as amended, restated, supplemented or
otherwise modified 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);
WHEREAS, the Borrower, the other Loan Parties and the Administrative Agent are parties to that
certain Guarantee and US Collateral Agreement (as amended, restated, supplemented or otherwise
modified prior to the date hereof, and together with all Annexes, Exhibits and Schedules thereto,
the “Guarantee and US Collateral Agreement”);
WHEREAS, the Borrowers and the other Loan Parties have requested that the Lenders agree to
amend certain provisions of the Credit Agreement and the Guarantee and US Collateral Agreement as
provided for herein; and
WHEREAS, Lenders constituting at least the Required Lenders are willing to amend the Credit
Agreement and the Guarantee and US Collateral Agreement on the terms and subject to the conditions
set forth herein.
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. Amendments to the Credit Agreement
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, the Credit Agreement is hereby
amended as follows:
(a) Section 2.13(a) of the Credit Agreement is hereby amended by (i) inserting “(i)”
immediately before the words “any Capital Stock” appearing in the first line thereof and (ii)
inserting the
words “or as otherwise provided in Section 7.2(g)(ii)” immediately after the words “Section
7.2(g)(i)(x)” appearing in the second parenthetical therein.
(b) Section 2.13(d) of the Credit Agreement is hereby amended by inserting the words “or as
otherwise provided in clause (a) above with respect to proceeds of Indebtedness permitted under
Section 7.2(g)(ii)” immediately after the words “dispositions permitted by Section 7.5(e)”
appearing therein.
(c) Section 7.2(g) of the Credit Agreement is hereby amended by (i) deleting the word “and” at
the end of clause (i) thereof and replacing it with “, (ii) unsecured subordinated Indebtedness of
either Borrower in an amount not to exceed $50,000,000, provided that (A) the proceeds of
such Indebtedness shall be used for general corporate purposes of the Borrowers and their
respective Subsidiaries in the ordinary course of business, including Permitted Acquisitions, and
(B) to the extent any Revolving Credit Loans are outstanding at the time of the incurrence of such
Indebtedness, the proceeds of such Indebtedness may be used to repay such Revolving Credit Loans
(with no reduction in Revolving Credit Commitments)” and (ii) re-lettering existing clause (ii) to
become clause (iii).
(d) Section 7.8(g) of the Credit Agreement is hereby amended by deleting clause (iv) thereof
in its entirety and replacing it with the following:
“(iv) the aggregate purchase price for all such Permitted Acquisitions shall not
exceed (x) $75,000,000 for the fiscal year ending December 31, 2009 or $60,000,000
per fiscal year thereafter, or (y) $35,000,000 for any single Permitted
Acquisition;”.
2. Amendments to the Guarantee and US Collateral Agreement
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 4.7(d) of the
Guarantee and US Collateral Agreement is hereby amended by deleting clause (iii) thereof in its
entirety and replacing it with the following: “(iii) have opted to be treated as “securities”
under Article 8 of the Uniform Commercial Code other than such Pledged LLC Interests or Pledged
Partnership Interests as to which such Grantor shall have notified the Administrative Agent thereof
and delivered to the Administrative Agent certificated securities representing such Pledged LLC
Interests and Pledged Partnership Interests”.
3. Conditions to Effectiveness.
The effectiveness of the amendments contained in Sections 1 and 2 hereof are 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 Lenders
comprising Required Lenders to execute this Amendment on behalf of such Lenders and (ii)
counterparts of this Amendment signed by each of the Borrowers and 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;
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(d) in consideration of this Amendment, the Borrowers 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 August 27, 2009, a fee equal to 0.05% of such
Lender’s Aggregate Exposure (determined prior to giving effect to this Amendment); and
(e) the Administrative Agent shall have received such other documents, instruments,
certificates, opinions and approvals as it may reasonably request.
4. Representations and Warranties
Each Loan Party represents and warrants jointly and severally to the Administrative Agent and
the Lenders as follows:
(a) Authority. Each 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 this Amendment and to
perform its obligations hereunder and under the Guarantee and US Collateral Agreement (as amended
hereby). The execution, delivery and performance by each Loan Party of this Amendment, and the
performance by each Borrower and each other Loan Party of the Credit Agreement (as amended hereby),
the Guarantee and US Collateral 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 Loan Party. Each of this Amendment and, after giving effect to this Amendment, the Credit
Agreement, the Guarantee and US Collateral 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 the performance of the Credit Agreement (as amended
hereby) or of the Guarantee and US Collateral 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 and the Guarantee and US
Collateral Agreement as provided therein.
(c) Representations and Warranties. After giving effect to this Amendment, the
representations and warranties contained in the Credit Agreement, the Guarantee and US Collateral
Agreement and the other Loan Documents are true and correct in all material respects (without
duplication of any materiality qualifier contained therein) on and as of the date hereof as though
made on and as of the date hereof other than any such representations and warranties that, by their
terms, are specifically made as of a date other than the date hereof, in which case such
representations and warranties were true and correct in all material respects (without duplication
of any materiality qualifier contained therein) as of such earlier date.
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(d) No Conflicts. Neither the execution, delivery or performance of this Amendment or
the performance of and compliance with the terms and provisions hereof or of the Credit Agreement
(as amended hereby) or of the Guarantee and US Collateral Agreement (as amended hereby) by any Loan
Party, nor the consummation of the transactions contemplated hereby or thereby, will, at the
time of such performance, (i) violate or conflict with any provision of its articles or certificate
of incorporation or bylaws or other organizational or governing documents of such Person, (ii)
violate, contravene or materially conflict with any Requirement of Law or Contractual Obligation
(including, without limitation, Regulation U), or (iii) 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. Acknowledgment and Consent
(a) Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the
Credit Agreement and this Amendment and consents to the amendment of the Credit Agreement effected
pursuant to this Amendment. Each Guarantor hereby confirms that the Guarantee and US Collateral
Agreement (as amended hereby) and each other Loan Document to which it is a party or otherwise
bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may
be, to the fullest extent possible in accordance with the Guarantee and US Collateral Agreement and
the other Loan Documents the payment and performance of all “Obligations” (as such term is defined
in the applicable Loan Document) under the Guarantee and US Collateral Agreement and each other
Loan Document to which is a party.
(b) Each Guarantor acknowledges and agrees that the Guarantee and US Collateral Agreement (as
amended hereby) and each other Loan Document to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or effectiveness of this
Amendment. Each Guarantor hereby confirms and ratifies its obligations under the Guarantee and US
Collateral Agreement (as amended hereby) and under each other Loan Document to which it is a party.
(c) Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, the Guarantee and US
Collateral Agreement, this Amendment or any other Loan Document shall be deemed to require the
consent of such Guarantor to any future amendments to the Credit Agreement.
6. 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. Upon and after the effectiveness of this Amendment,
each reference in the Guarantee and US Collateral Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Guarantee and US Collateral Agreement, and each
reference in the other Loan Documents to “the Guarantee and US Collateral Agreement”, “thereunder”,
“thereof” or words of like import referring to the Guarantee and US Collateral Agreement, shall
mean and be a reference to the Guarantee and US Collateral Agreement as modified hereby. This
Amendment is a Loan Document.
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(b) Except as specifically modified above, the Credit Agreement, the Guarantee and US
Collateral 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.
7. 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.
8. 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.
9. 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 and Secretary | |||
WASTE SERVICES, INC. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Executive Vice President, General Counsel and Secretary |
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GUARANTORS: WASTE SERVICES OF ARIZONA, INC. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and Secretary | |||
WASTE SERVICES OF FLORIDA, INC. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and 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 and Secretary | |||
XXXXXXX RECYCLING AND TRANSFER, INC. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and Secretary | |||
SUN COUNTRY MATERIALS, LLC |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and Secretary |
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XXXX RECYCLING, INC. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and Secretary | |||
RAM-PAK COMPACTION SYSTEMS LTD. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and Secretary | |||
FREEDOM RECYCLING HOLDINGS, LLC |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and Secretary | |||
RIP, INC. |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President and Secretary |
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BARCLAYS BANK PLC, as Administrative Agent |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President | |||
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