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Exhibit 10.12
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FIRST LIEN CREDIT AGREEMENT
DATED AS OF APRIL 28, 2005
AMONG
WCA WASTE SYSTEMS, INC.,
AS BORROWER,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT,
COMERICA BANK,
AS SYNDICATION AGENT,
AND
THE LENDERS PARTY HERETO
REVOLVING CREDIT FACILITY
(WITH SWING LINE FACILITY AND DIRECT PAY LETTER OF CREDIT
FACILITY)
TERM B LOAN FACILITY
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ARTICLE I
Definitions and Accounting Matters.................... 1
Section 1.01 Certain Defined
Terms................................. 1
Section 1.02 Terms
Generally....................................... 24
Section 1.03 Accounting Terms and
Determinations................... 24
ARTICLE II
Commitments........................................... 25
Section 2.01 Loans and Letters of
Credit........................... 25
Section 2.02 Borrowings,
Continuations and Conversions,
Letters of Credit..................................... 29
Section 2.03 Changes of Aggregate
Revolving Credit Commitments..... 31
Section 2.04 Increase in Aggregate
Commitments..................... 31
Section 2.05
Fees.................................................. 33
Section 2.06 Several
Obligations................................... 34
Section 2.07 Evidence of
Debt...................................... 35
Section 2.08
Prepayments........................................... 35
Section 2.09 Assumption of
Risks................................... 37
Section 2.10 Obligation to
Reimburse and to Prepay................. 38
Section 2.11 Lending
Offices....................................... 40
ARTICLE III
Payments of Principal and Interest.................... 40
Section 3.01 Repayment of
Loans.................................... 40
Section 3.02
Interest.............................................. 40
ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc....... 41
Section 4.01
Payments.............................................. 41
Section 4.02 Pro Rata
Treatment.................................... 42
Section 4.03
Computations.......................................... 42
Section 4.04 Non-receipt of Funds
by the Administrative Agent...... 43
Section 4.05 Set-off, Sharing of
Payments, Etc..................... 43
ARTICLE V
Yield Protection...................................... 44
Section 5.01 Increased
Costs....................................... 44
Section 5.02
Taxes................................................. 46
Section 5.03 Mitigation
Obligations; Replacement of Lenders........ 48
Section 5.04
Compensation.......................................... 49
ARTICLE VI
Conditions Precedent.................................. 50
Section 6.01 Initial
Funding....................................... 50
Section 6.02 Initial and Subsequent
Loans and Letters of Credit.... 51
Section 6.03 Conditions Precedent
for the Benefit of Lenders....... 52
Section 6.04 Determinations Under
Section 6.01..................... 52
Section 6.05 No
Waiver............................................. 52
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ARTICLE VII
Representations and Warranties........................ 52
Section 7.01 Corporate
Existence................................... 52
Section 7.02 Financial
Condition................................... 53
Section 7.03
Litigation............................................ 53
Section 7.04 No
Breach............................................. 53
Section 7.05
Authority............................................. 53
Section 7.06
Approvals............................................. 54
Section 7.07 Use of
Proceeds....................................... 54
Section 7.08
ERISA................................................. 54
Section 7.09
Taxes................................................. 55
Section 7.10 Titles,
etc........................................... 55
Section 7.11 No Material
Misstatements............................. 56
Section 7.12 Investment Company
Act................................ 56
Section 7.13 Public Utility Holding
Company Act.................... 56
Section 7.14
Subsidiaries.......................................... 56
Section 7.15 Location of Business
and Offices...................... 56
Section 7.16
Defaults.............................................. 57
Section 7.17 Environmental
Matters................................. 57
Section 7.18 Compliance with the
Law............................... 58
Section 7.19
Insurance............................................. 58
Section 7.20 Restriction on
Liens.................................. 59
Section 7.21 Material
Agreements................................... 59
ARTICLE VIII
Affirmative Covenants................................. 59
Section 8.01 Reporting
Requirements................................ 59
Section 8.02
Litigation............................................ 62
Section 8.03 Maintenance,
Etc...................................... 62
Section 8.04 Environmental
Matters................................. 63
Section 8.05 Further
Assurances.................................... 64
Section 8.06 Performance of
Obligations............................ 64
Section 8.07 ERISA Information and
Compliance...................... 64
Section 8.08 Subsidiary
Guarantors................................. 65
ARTICLE IX
Negative Covenants.................................... 65
Section 9.01
Debt.................................................. 65
Section 9.02
Liens................................................. 66
Section 9.03
Investments........................................... 67
Section 9.04 Dividends,
Distributions and Redemptions; Etc......... 67
Section 9.05 Sales and
Leasebacks.................................. 67
Section 9.06 Nature of Business;
Amendments of Constitutive
Documents............................................. 68
Section 9.07 Limitation on
Leases.................................. 68
Section 9.08 Mergers,
Etc.......................................... 68
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Section 9.09 Proceeds of Loans;
Letters of Credit.................. 68
Section 9.10 ERISA
Compliance...................................... 68
Section 9.11 Sale or Discount of
Receivables....................... 69
Section 9.12 Leverage
Ratio........................................ 69
Section 9.13 Net
Worth............................................. 70
Section 9.14 Senior Funded Debt
Leverage Ratio..................... 70
Section 9.15 Adjusted EBIT Debt
Service Ratio...................... 70
Section 9.16 Capital
Expenditures.................................. 70
Section 9.17 Sale of
Properties.................................... 70
Section 9.18 Environmental
Matters................................. 71
Section 9.19 Transactions with
Affiliates.......................... 71
Section 9.20
Subsidiaries.......................................... 71
Section 9.21 Negative Pledge
Agreements............................ 71
Section 9.22 Prepayments of Debt;
Amendment of Documents........... 71
ARTICLE X
Events of Default; Remedies........................... 72
Section 10.01 Events of
Default..................................... 72
Section 10.02
Remedies.............................................. 74
ARTICLE XI
The Agents............................................ 75
Section 11.01 Appointment and
Authority............................. 75
Section 11.02 Rights as a
Lender.................................... 75
Section 11.03 Exculpatory
Provisions................................ 75
Section 11.04 Reliance by any
Agent................................. 76
Section 11.05 Delegation of
Duties.................................. 77
Section 11.06 Resignation of an
Agent............................... 77
Section 11.07 Non-Reliance on Agents and
Other Lenders.............. 77
Section 11.08 No Other Duties,
etc.................................. 78
Section 11.09 Issuing Bank as
Agent................................. 78
Section 11.10 Collateral and Guaranty
Matters....................... 78
Section 11.11 Intercreditor
Agreement............................... 78
Section 11.12
Indemnification....................................... 78
ARTICLE XII
Miscellaneous......................................... 79
Section 12.01
Waiver................................................ 79
Section 12.02
Notices............................................... 79
Section 12.03 Payment of Expenses,
Indemnities, etc................. 81
Section 12.04 Amendments,
Etc....................................... 83
Section 12.05 Successors and
Assigns................................ 85
Section 12.06
Invalidity............................................ 88
Section 12.07 Counterparts,
etc..................................... 88
Section 12.08
Survival.............................................. 88
Section 12.09
Captions.............................................. 89
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Section 12.10 Governing Law; Submission to
Jurisdiction............. 89
Section 12.11 Interest Rate
Limitation.............................. 89
Section 12.12 WAIVER OF JURY
TRIAL.................................. 90
Section 12.13 Right of
Setoff....................................... 90
Section 12.14
Confidentiality....................................... 90
Section 12.15 Exculpation
Provisions................................ 91
Section 12.16 USA Patriot Act
Notice................................ 92
Section 12.17 Amendment and Restatement;
Release.................... 92
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TABLE OF CONTENTS
(continued)
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ANNEX:
I -
List of
Percentage Shares and Aggregate Commitments
SCHEDULES:
1.02 - Existing LCs
7.02 - Financial Condition
7.03 - Litigation
7.10 - Titles, Etc.
7.14 - Subsidiaries
7.17 - Environmental Matters
7.19 - Insurance
7.21 - Material Agreements
9.01 - Debt
9.02 - Liens
9.03 - Investments
EXHIBITS:
A -
Form of
Borrowing, Continuation and Conversion Request
B -
Form of
Compliance Certificate
C -
Form of
Assignment and Assumption
D -
Form of
Commitment and Acceptance
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v
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THIS FIRST LIEN
CREDIT AGREEMENT dated as of April 28, 2005, is among WCA
WASTE SYSTEMS, INC., a Delaware corporation
(the "Borrower"); each of the
lenders that is a party hereto or which
becomes a party hereto as provided in
Section 12.05 (individually, together with
its successors and assigns, a
"Lender" and, collectively, the "Lenders");
COMERICA BANK, as syndication agent
hereunder (in such capacity, together with
its successors in such capacity, the
"Syndication Agent"); and WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national
banking association (in its individual
capacity, "Wells Fargo"), as
administrative agent and collateral agent
hereunder (in such capacity, together
with its successors in such capacity, the
"Administrative Agent" and the
"Collateral Agent" and together, the
"Agents").
RECITALS
A. The Borrower,
the Administrative Agent and certain banks and other
financial institutions have previously
entered into that certain Fourth Amended
and Restated Credit Agreement dated as of
December 21, 2004 (as the same has
been amended, modified and supplemented,
the "Existing Credit Agreement").
B. The Borrower
has requested and the Administrative Agent and the Lenders
have agreed to restructure the existing
credit facilities and to amend and
modify the Existing Credit Agreement upon
the terms and conditions hereinafter
set forth.
C. In
consideration of the mutual covenants and agreements herein
contained
and of the loans, extensions of credit and
commitments hereinafter referred to,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01
Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all
terms defined in this Article I or in
other provisions of this Agreement in the
singular to have equivalent meanings
when used in the plural and vice
versa):
"2004
Reorganization" means (a) Waste Corporation of America, Inc.,
WCA
Merger Corporation, WCA Holdings
Corporation and WCA Waste Corporation, a
Delaware corporation ("WCA Corp."), entered
into that certain Reorganization
Agreement dated May 10, 2004, pursuant to
which, among other things, Waste
Corporation of America, Inc. merged into
WCA Merger Corporation with Waste
Corporation of America, Inc. as the
surviving entity, (b) Waste Corporation of
America, Inc. was converted from a Delaware
corporation to Waste Corporation of
America LLC, a Delaware limited liability
company, (c) Waste Corporation of
America LLC distributed all of the voting
stock of WCA Holdings Corporation to
WCA Corp., and (d) WCA Corp. merged into
WCA Merger Corporation II with WCA
Corp. as the surviving entity.
"Acquired
Business" is defined in the definition of Prior Acquisition
Add-Back.
"Acquired
Subsidiary" is defined in the definition of Prior Acquisition
Add-Back.
FIRST LIEN CREDIT AGREEMENT
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"Act" is defined
in Section 12.16.
"Additional
Volume" means the waste collected by an Acquired Subsidiary or
Acquired Business that (a) prior to the
consummation of the acquisition of such
Acquired Subsidiary or Acquired Business,
was not being delivered to a landfill
or transfer station owned or operated by
the Borrower or any Consolidated
Subsidiary, and (b) subsequent to the
consummation of the acquisition of such
Acquired Subsidiary or Acquired Business,
is delivered to a landfill or transfer
station owned or operated by the Borrower
or any Consolidated Subsidiary.
"Adjusted EBIT"
means, for any period, the sum of (a) EBIT for such period,
plus (b) non-cash charges for accretion on
closure and post-closure obligations,
plus (c) non-cash charges associated with
the disposal contract between Waste
Management, Inc. and the Borrower, plus (d)
non-cash charges (or minus non-cash
benefits, if applicable) reflecting the
adoption of SFAS No. 123 (and all
amendments thereto), plus (e) cash
compensation charges in an aggregate amount
not to exceed $5,000,000 and non-cash
compensation charges, all with respect to
stock options outstanding and shares issued
by Waste Corporation in connection
with the extinguishment of options and
warrants as part of the 2004
Reorganization, plus (f) non-cash expense
(or minus non-cash income, if
applicable) associated with FAS 133
treatment of any interest rate Hedging
Agreements, plus (g) non-cash losses on
asset sales in an aggregate amount not
to exceed $500,000.
"Adjusted EBIT
Debt Service Ratio" means, with respect to the Borrower and
its Consolidated Subsidiaries, the ratio of
(i) Adjusted EBIT for the four
fiscal quarters ending on such date to (ii)
cash interest expense, plus (x) the
current portion of capitalized leases for
the following four fiscal quarters,
plus (y) the current portion of principal
payments of Debt, excluding payments
made on the Revolving Credit Loans and
prepaid insurance premiums, required to
be paid for the following four fiscal
quarters, plus (z) any Qualified Dividends
paid during the four fiscal quarters ending
on such date.
"Administrative
Agent" is defined in the preamble.
"Administrative
Questionnaire" means an administrative questionnaire in a
form supplied by the Administrative
Agent.
"Affiliate" of
any Person means (a) any Person directly or indirectly
controlled by, controlling or under common
control with such first Person, (b)
any director or executive officer of such
first Person or of any Person referred
to in clause (a) above and (c) if any
Person in clause (a) above is an
individual, any member of the immediate
family (including parents, spouse and
children) of such individual and any trust
whose principal beneficiary is such
individual or one or more members of such
immediate family and any Person who is
controlled by any such member or trust. For
purposes of this definition, any
Person which owns directly or indirectly
10% or more of the securities having
ordinary voting power for the election of
directors or other governing body of a
corporation or 10% or more of the
partnership or other ownership interests of
any other Person (other than as a limited
partner of such other Person) will be
deemed to "control" (including, with its
correlative meanings, "controlled by"
and "under common control with") such
corporation or other Person.
FIRST LIEN CREDIT AGREEMENT-PAGE 2
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"Agents" is
defined in the preamble.
"Aggregate
Commitments" at any time equals the sum of the Aggregate
Revolving Credit Commitments, the Aggregate
Term B Commitments and the Direct
Pay Letter of Credit Commitment.
"Aggregate
Revolving Credit Commitments" at any time equals the sum of the
Revolving Credit Commitments of the
Lenders, as the same may be reduced pursuant
to Section 2.03(b) or Section 10.02(b) or
increased pursuant to Section 2.04.
The Aggregate Revolving Credit Commitments
on the Closing Date shall be
$75,000,000.
"Aggregate Term
B Commitments" at any time shall equal the sum of the Term
B Commitments of the Lenders. The Aggregate
Term B Commitments on the Closing
Date shall be $100,000,000.
"Agreement"
means this First Lien Credit Agreement, as the same may from
time to time be amended, restated,
supplemented or modified.
"Applicable
Lending Office" means, for each Lender and for each Type of
Loan, the lending office of such Lender (or
an Affiliate of such Lender)
designated for such Type of Loan on the
signature pages hereof or such other
offices of such Lender (or of an Affiliate
of such Lender) as such Lender may
from time to time specify to the
Administrative Agent and the Borrower as the
office by which its Loans of such Type are
to be made and maintained.
"Applicable
Margin" means, on any day, the applicable per annum percentage
set forth at the appropriate intersection
in the table shown below, based on the
Leverage Ratio on the most recent
Determination Date:
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LEVERAGE RATIO
BASE RATE LOAN
LIBOR LOAN
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Greater than or equal to 4.00:1.00
2.00%
3.00%
Less than 4.00:1.00, but greater than or
equal to 3.50:1.00 1.75%
2.75%
Less than 3.50:1.00, but greater than or
equal to 2.75:1.00
1.25%
2.25%
Less than 2.75:1.00, but greater than or
equal to 2.00:1.00
1.00%
2.00%
Less than 2.00:1.00
0.75%
1.75%
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The Applicable Margin shall be established
as of the last day of each fiscal
quarter of the Borrower (each, a
"Determination Date") beginning with the
receipt by the Administrative Agent of the
Compliance Certificate and the
financial statements for the fiscal quarter
ended June 30, 2005 (the "Initial
Determination Date"). Any change in the
Applicable Margin following each
Determination Date shall be determined
based upon the information and
computations set forth in the financial
statements and Compliance Certificate
furnished to the Administrative Agent
pursuant to Section 8.01, subject to
review and approval of such computations by
the Administrative Agent. Each
change in the Applicable Margin shall be
effective as of the first day of the
calendar month following each Determination
Date (including, without limitation,
in
FIRST LIEN CREDIT AGREEMENT-PAGE 3
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respect of LIBOR Loans then outstanding
notwithstanding that such change occurs
during an Interest Period), and shall
remain in effect until the date that is
the first day of the calendar month
following the next Determination Date for
which a change in the Applicable Margin
occurs; provided, however; if the
Borrower shall fail to deliver any required
financial statements or Compliance
Certificate within the time period required
by Section 8.01, the Applicable
Margin shall be the highest percentage
amount stated for each Type of Loan as
set forth in the above table for the period
beginning on the relevant
Determination Date and ending on the date
that the appropriate financial
statements and Compliance Certificate are
so delivered. Notwithstanding the
foregoing, during the period beginning on
the Closing Date and ending on the
Initial Determination Date, the Applicable
Margin shall be 2.00% per annum for
Base Rate Loans and 3.00% per annum for
LIBOR Loans.
"Approved Fund"
means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c)
an entity or an Affiliate of an
entity that administers or manages a
Lender.
"Assignment" is
defined in Section 12.05(b)(i).
"Base Rate"
means, with respect to any Base Rate Loan, for any day, the
higher of (a) the Federal Funds Rate for
any such day plus 1/2 of 1% or (b) the
Prime Rate for such day. Each change in any
interest rate provided for herein
based upon the Base Rate resulting from a
change in the Base Rate shall take
effect at the time of such change in the
Base Rate.
"Base Rate
Loans" means Loans that bear interest at rates based upon the
Base Rate.
"Bonds" means
the Issuer's $25,000,000 Gulf Coast Waste Disposal Authority
Environmental Facilities Revenue Bonds
(Waste Corporation of Texas, L.P.
Project) Series 2002.
"Borrower" is
defined in the preamble.
"Business Day"
means any day other than a day on which commercial banks are
authorized or required to close in the
States of California, Texas and New York
and, where such term is used in the
definition of "Quarterly Date" or if such
day relates to a borrowing or continuation
of, a payment or prepayment of
principal of or interest on, or a
conversion of or into, or the Interest Period
for, a LIBOR Loan or a notice by the
Borrower with respect to any such borrowing
or continuation, payment, prepayment,
conversion or Interest Period, any day
which is also a day on which dealings in
Dollar deposits are carried out in the
London interbank market.
"Capital
Expenditures" means, without duplication, any expenditures for
any
purchase or other acquisition of any asset
which would be classified as a fixed
or capital asset on a consolidated balance
sheet of the Borrower and its
Subsidiaries prepared in accordance with
GAAP.
"Change in Law"
means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or
taking effect of any Governmental
Requirement, (b) any change in any
Governmental Requirement or in the
administration, interpretation or
application thereof by
FIRST LIEN CREDIT AGREEMENT-PAGE 4
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any Governmental Authority or (c) the
making or issuance of any request,
guideline or directive (whether or not
having the force of law) by any
Governmental Authority.
"Change of
Control" means, with respect to any Person, an event or series
of events by which:
(a) with respect to WCA Corp., any "person" or "group" (as such
terms
are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, but
excluding any employee benefit plan of such person or its
subsidiaries,
and any person or entity acting in its capacity as trustee,
agent or other
fiduciary or administrator of any such plan) becomes the
"beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities
Exchange Act of 1934, except that a person or group shall be
deemed to have
"beneficial ownership" of all securities that such person or
group has the
right to acquire (such right, an "option right"), whether
such right is
exercisable immediately or only after the passage of time),
directly or
indirectly, of 35% or more of the equity securities of WCA
Corp. entitled
to vote for members of the board of directors or equivalent
governing body
of WCA Corp. on a fully-diluted basis (and taking into
account all such
securities that such person or group has the right to
acquire pursuant
to any option right); or
(b) with respect to WCA Corp., during any period of 12
consecutive
months, a
majority of the members of the board of directors or other
equivalent
governing body of WCA Corp. cease to be composed of individuals
(i) who were
members of that board or equivalent governing body on the
first day of
such period, (ii) whose election or nomination to that board
or equivalent
governing body was approved by individuals referred to in
clause (i) above
constituting at the time of such election or nomination at
least a majority
of that board or equivalent governing body or (iii) whose
election or
nomination to that board or other equivalent governing body was
approved by
individuals referred to in clauses (i) and (ii) above
constituting at
the time of such election or nomination at least a majority
of that board or
equivalent governing body (excluding, in the case of both
clause (ii) and
clause (iii), any individual whose initial nomination for,
or assumption of
office as, a member of that board or equivalent governing
body occurs as a
result of an actual or threatened solicitation of proxies
or consents for
the election or removal of one or more directors by any
person or group
other than a solicitation for the election of one or more
directors by or
on behalf of the board of directors); or
(c) the Borrower shall fail beneficially to own, directly or
indirectly, 100%
of the outstanding Equity Interests of any of the
Guarantors on a
fully-diluted basis except as permitted in Section 9.17; or
(d) the Parent shall fail beneficially to own, directly or
indirectly,
100% of the
outstanding Equity Interests of the Borrower on a fully-diluted
basis; or
(e) WCA Corp. shall fail to own, directly or indirectly, 100% of
the
outstanding
Equity Interests of the Parent on a fully-diluted basis.
"Charges" is
defined in Section 12.11.
FIRST LIEN CREDIT AGREEMENT-PAGE 5
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"Closing Date"
means the date on which the conditions specified in Section
6.01 are satisfied.
"Closure/Post-Closure Letters of Credit" means letters of credit,
surety
bonds or other instruments of similar
character, the purpose of which is to
provide financial assurance to the various
state agencies for closure and
post-closure obligations for the landfills
and transfer stations owned or
operated by the Borrower and its
Subsidiaries. For purposes of this definition,
"Financial assurance," "closure" and
"post-closure" shall have the meanings set
forth in the administrative code or other
comparable regulations of each state
in which such landfill and transfer station
is located.
"Code" means the
Internal Revenue Code of 1986, as amended from time to
time and any successor statute.
"Collateral
Agent" is defined in the preamble.
"Commitment"
means for any Lender, its Revolving Credit Commitment, Swing
Line Commitment (with respect to the Swing
Line Lender only), its Term B
Commitment and its Direct Pay Letter of
Credit Commitment (with respect to the
Issuing Bank only), as applicable.
"Commitment and
Acceptance" is defined in Section 2.04(a).
"Communications"
is defined in Section 12.02(b)(iii).
"Compliance
Certificate" means a certificate substantially in the form of
Exhibit B as executed by a Responsible
Officer.
"Consolidated
Net Income" means with respect to the Borrower and its
Consolidated Subsidiaries, for any period,
the aggregate of the net income (or
loss) of the Borrower and its Consolidated
Subsidiaries from operations after
allowances for taxes for such period,
determined on a consolidated basis in
accordance with GAAP; provided that there
shall be excluded from such net income
(to the extent otherwise included therein)
the following: (a) the net income of
any Person in which the Borrower or any
Consolidated Subsidiary has an interest
(which interest does not cause the net
income of such other Person to be
consolidated with the net income of the
Borrower and its Consolidated
Subsidiaries in accordance with GAAP),
except to the extent of the amount of
dividends or distributions actually paid in
such period by such other Person to
the Borrower or to a Consolidated
Subsidiary, as the case may be; (b) the net
income (but not loss) of any Consolidated
Subsidiary to the extent that the
declaration or payment of dividends or
similar distributions or transfers or
loans by that Consolidated Subsidiary is
not at the time permitted by operation
of the terms of its charter or any
agreement, instrument or Governmental
Requirement applicable to such Consolidated
Subsidiary, or is otherwise
restricted or prohibited in each case
determined in accordance with GAAP; (c)
the net income (or loss) of any Person
acquired in a pooling-of-interests
transaction for any period prior to the
date of such transaction; (d) any
extraordinary gains or losses, including
gains or losses attributable to
Property sales not in the ordinary course
of business; and (e) the cumulative
effect of a change in accounting principles
and any gains or losses attributable
to write-ups or write downs of assets.
FIRST LIEN CREDIT AGREEMENT-PAGE 6
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"Consolidated
Subsidiaries" means each Subsidiary of a Person (whether now
existing or hereafter created or acquired)
the financial statements of which
shall be (or should have been) consolidated
with the financial statements of
such Person in accordance with GAAP. Unless
otherwise expressly stated, each
reference to the term "Consolidated
Subsidiary" shall mean a Subsidiary
consolidated with the Borrower.
"Debt" means,
for any Person the sum of the following (without
duplication): (a) all obligations of such
Person for borrowed money or evidenced
by bonds, debentures, notes or other
similar instruments (including principal,
interest, fees and charges, in each case
accrued but unpaid); (b) all
obligations of such Person (whether
contingent or otherwise) in respect of
bankers' acceptances, letters of credit,
surety or other bonds and similar
instruments; (c) all obligations of such
Person to pay, in accordance with GAAP,
the deferred purchase price of Property or
services (other than for borrowed
money), including securities repurchase
agreements; (d) all obligations under
leases which shall have been, or should
have been, in accordance with GAAP,
recorded as capital leases in respect of
which such Person is liable (whether
contingent or otherwise); (e) all monetary
obligations under (i) a so-called
synthetic, off-balance sheet or tax
retention lease, or (ii) an agreement for
the use or possession of property creating
obligations that do not appear in the
balance sheet of such Person but which,
upon the insolvency or bankruptcy of
such Person, would be characterized as the
indebtedness of such Person (without
regard to accounting treatment); (f) all
Debt (as described in the other clauses
of this definition) and other obligations
of others secured by a Lien on any
asset of such Person, whether or not such
Debt is assumed by such Person; (g)
all Debt (as described in the other clauses
of this definition) and other
obligations of others guaranteed by such
Person or in which such Person
otherwise assures a creditor against loss
of the debtor or obligations of
others; (h) all obligations or undertakings
of such Person to maintain or cause
to be maintained the financial position or
covenants of others or to purchase
the Debt or Property of others; (i)
obligations to deliver goods or services in
consideration of advance payments,
excluding prevails of customer accounts in
the ordinary course of business as
customary in the business of the Borrower and
its Subsidiaries; (j) obligations to pay
for goods or services whether or not
such goods or services are actually
received or utilized by such Person; (k) any
obligation to purchase, redeem, retire or
otherwise acquire for value any shares
of capital stock of such Person, any
warrants, options or other rights to
acquire any such shares or any other rights
measured by the value of such
shares, warrants, options or other rights;
(l) any Debt of a Special Entity for
which such Person is liable either by
agreement or because of a Governmental
Requirement; (m) all obligations of such
Person under Hedging Agreements; (n)
all obligations of such Person under
Equipment Leases; and (o) all earn-out
obligations of such Person payable to a
seller and incurred in connection with a
Qualified Acquisition Expenditure, which
obligations are deemed accrued in
accordance with GAAP. For the avoidance of
doubt, the obligations under the
Installment Sale Agreement and the
Reimbursement Agreement shall be included as
one obligation for purposes of determining
Debt hereunder.
"Default" means
an Event of Default or an event which with notice or lapse
of time or both would become an Event of
Default.
"Determination
Date" is defined in the definition of Applicable Margin.
FIRST LIEN CREDIT AGREEMENT-PAGE 7
<PAGE>
"Direct Pay
Letter of Credit" means that certain letter of credit issued
pursuant to the Reimbursement
Agreement.
"Direct Pay
Letter of Credit Commitment" means, for the Issuing Bank, its
obligations to issue the Direct Pay Letter
of Credit in an initial face amount
not to exceed $25,308,219.18, as the same
may be reduced and/or reinstated
pursuant to the Reimbursement Agreement. As
of the Closing Date, the amount
available for drawing under the Direct Pay
Letter of Credit is $22,808,219.18.
"Direct Pay
Letter of Credit Exposure" at any time means the undrawn amount
of the Direct Pay Letter of Credit, plus
the amount drawn under the Direct Pay
Letter of Credit and not yet reimbursed
(including by borrowing hereunder).
"Dissenting
Lender" is defined in Section 12.05(g).
"Dollars" and
"$" means lawful money of the United States of America.
"EBIT" means,
for any period, the sum of Consolidated Net Income for such
period, plus the following expenses or
charges to the extent deducted from
Consolidated Net Income in such period:
interest and taxes.
"EBITDA" means,
for any period, the sum of Consolidated Net Income for such
period plus the following expenses or
charges to the extent deducted from
Consolidated Net Income in such period:
interest, taxes, depreciation and
amortization.
"Eligible
Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person
(other than a natural person)
approved by the Administrative Agent, the
Issuing Bank and the Swing Line
Lender, such approvals not to be
unreasonably withheld; provided that
notwithstanding the foregoing, "Eligible
Assignee" shall not include the
Borrower or any of the Borrower's
Affiliates or Subsidiaries.
"Environmental
Laws" means any and all Governmental Requirements pertaining
to health or the environment in effect in
any and all jurisdictions in which the
Borrower or any Subsidiary is conducting or
at any time has conducted business,
or where any Property of the Borrower or
any Subsidiary is located, including
without limitation, the Oil Pollution Act
of 1990 ("OPA"), the Clean Air Act, as
amended, the Comprehensive Environmental,
Response, Compensation, and Liability
Act of 1980 ("CERCLA"), as amended, the
Federal Water Pollution Control Act, as
amended, the Occupational Safety and Health
Act of 1970, as amended, the
Resource Conservation and Recovery Act of
1976 ("RCRA"), as amended, the Safe
Drinking Water Act, as amended, the Toxic
Substances Control Act, as amended,
the Superfund Amendments and
Reauthorization Act of 1986, as amended, the
Hazardous Materials Transportation Act, as
amended, and other environmental
conservation or protection laws. The term
"oil" shall have the meaning specified
in OPA, the terms "hazardous substance" and
"release" (or "threatened release")
have the meanings specified in CERCLA, and
the terms "solid waste" and
"disposal" (or "disposed") have the
meanings specified in RCRA; provided,
however, that (a) in the event either OPA,
CERCLA or RCRA is amended so as to
broaden the meaning of any term defined
thereby, such broader meaning shall
apply subsequent to the effective date of
such amendment and (b) to the extent
the laws of the state in which any Property
of the Borrower
FIRST LIEN CREDIT AGREEMENT-PAGE 8
<PAGE>
or any Subsidiary is located establish a
meaning for "oil," "hazardous
substance," "release," "solid waste" or
"disposal" which is broader than that
specified in either OPA, CERCLA or RCRA,
such broader meaning shall apply.
"EPA" means the
United States Environmental Protection Agency and any
successor Governmental Authority.
"Equipment
Leases" means operating leases for equipment or vehicles having
a term longer than 120 days and an
aggregate value of more than $250,000.
"Equity
Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit
interests in) such Person, warrants,
options or other rights for the purchase or
other acquisition from such Person
of shares of capital stock of (or other
ownership or profit interests in) such
Person, securities convertible into or
exchangeable for shares of capital stock
of (or other ownership or profit interests
in) such Person or warrants, rights
or options for the purchase or other
acquisition from such Person of such shares
(or such other interests), and other
ownership or profit interests in such
Person (including, without limitation,
partnership, member or trust interests
therein), whether voting or nonvoting, and
whether or not such shares, warrants,
options, rights or other interests are
authorized or otherwise existing on any
date of determination.
"ERISA" means
the Employee Retirement Income Security Act of 1974, as
amended from time to time and any successor
statute.
"ERISA
Affiliate" means each trade or business (whether or not
incorporated) which together with the
Borrower or any Subsidiary would be deemed
to be a "single employer" within the
meaning of Section 4001(b)(1) of ERISA or
subsections (b) or (c) of Section 414 of
the Code.
"ERISA Event"
means (a) a "Reportable Event" described in Section 4043 of
ERISA and the regulations issued
thereunder, unless the 30-day notice
requirement with respect to such event has
been waived by the PBGC, (b) the
withdrawal of the Borrower or any ERISA
Affiliate from a Plan during a plan year
in which it was a "substantial employer" as
defined in Section 4001(a)(2) of
ERISA and immediately after such withdrawal
the Plan has nonforfeitable benefits
which are not fully funded, (c) the filing
of a notice of intent to terminate a
Plan or the treatment of a Plan amendment
as a termination under Section 4041 of
ERISA, (d) the institution of proceedings
to terminate a Plan by the PBGC or (e)
any other event or condition which might
constitute grounds under Section 4042
of ERISA for the termination of, or the
appointment of a trustee to administer,
any Plan.
"Eurocurrency
Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve
System, as in effect from time to
time.
"Event of
Default" is defined in Section 10.01.
"Excepted Liens"
means: (a) Liens for taxes, assessments or other
governmental charges or levies not yet due
or which are being contested in good
faith by appropriate action and for which
adequate reserves have been
maintained; (b) Liens in connection with
workmen's
FIRST LIEN CREDIT AGREEMENT-PAGE 9
<PAGE>
compensation, unemployment insurance or
other social security, old age pension
or public liability obligations not yet due
or which are being contested in good
faith by appropriate action and for which
adequate reserves have been maintained
in accordance with GAAP; (c) operators',
vendors', carriers', warehousemen's,
repairmen's, mechanics', workmen's,
materialmen's, construction or other like
Liens arising by operation of law in the
ordinary course of business or
statutory landlord's liens, each of which
is in respect of obligations that have
not been outstanding more than 90 days or
which are being contested in good
faith by appropriate proceedings and for
which adequate reserves have been
maintained in accordance with GAAP; (d) any
Liens reserved in (i) that certain
Royalty Agreement dated May 2, 1996 between
Central Missouri Landfill, Inc. and
Olen Howard for royalty obligations and
(ii) leases for rent and for compliance
with the terms of such leases, to the
extent that any such Lien referred to in
this clause (d) does not materially impair
the use of the Property covered by
such Lien for the purposes for which such
Property is held by the Borrower or
any Subsidiary or materially impair the
value of such Property subject thereto;
(e) encumbrances (other than to secure the
payment of borrowed money or the
deferred purchase price of Property or
services), easements, restrictions,
servitudes, permits, conditions, covenants,
exceptions or reservations in any
rights of way or other Property of the
Borrower or any Subsidiary for the
purpose of roads, pipelines, transmission
lines, transportation lines,
distribution lines for the removal of gas,
oil, coal or other minerals or
timber, and other like purposes, or for the
joint or common use of real estate,
rights of way, facilities and equipment,
and defects, irregularities, zoning
restrictions and deficiencies in title of
any rights of way or other Property
which in the aggregate do not materially
impair the use of such rights of way or
other Property for the purposes of which
such rights of way and other Property
are held by the Borrower or any Subsidiary
or materially impair the value of
such Property subject thereto; (f) deposits
of cash or securities to secure the
performance of bids, trade contracts,
leases, permits, surety bonds, appeal
bonds, statutory obligations and other
obligations of a like nature incurred in
the ordinary course of business; (g) Liens
permitted by the Loan Documents; (h)
reservations, covenants, conditions,
restrictions and other Liens that arise or
are imposed in connection with host
community fee agreements of a type customary
in Borrower's or any Subsidiary's business;
(i) Liens securing judgments for the
payment of money not constituting an Event
of Default or securing appeal or
other surety bonds related to such
judgments; and (j) Liens created or deemed to
be created in connection with the
transactions contemplated by the Installment
Sale Agreement.
"Excluded Taxes"
means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other
recipient of any payment to be made by or
on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however
denominated), and franchise taxes
imposed on it (in lieu of net income
taxes), by the jurisdiction (or any
political subdivision thereof) under the
laws of which such recipient is
organized or in which its principal office
is located or, in the case of any
Lender, in which its Applicable Lending
Office is located, (b) any branch
profits taxes imposed by the United States
of America or any similar tax imposed
by any other jurisdiction in which the
Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee
pursuant to a request by the
Borrower under Section 5.03(b)), any
withholding tax that is imposed on amounts
payable to such Foreign Lender at the time
such Foreign Lender becomes a party
hereto (or designates a new lending office)
or is attributable to such Foreign
Lender's failure or inability (other than
as a result of a Change in Law) to
comply with Section 5.02(e), except to the
extent that such Foreign Lender (or
its assignor, if any) was entitled, at the
time of designation of a new lending
office (or
FIRST LIEN CREDIT AGREEMENT-PAGE 10
<PAGE>
assignment), to receive additional amounts
from the Borrower with respect to
such withholding tax pursuant to Section
5.02(a).
"Existing Credit
Agreement" is defined in the Recitals.
"Existing LCs"
means those letters of credit described on Schedule 1.02
issued pursuant to the Existing Credit
Agreement.
"Expansion
Expenditure" means an expenditure made in connection with or in
furtherance of building a new transfer
station, starting a new hauling company,
opening an inactive landfill, new municipal
contracts that require additional
equipment or other property, or other
growth and productivity capital
expenditures included within the Borrower's
business plan so long as (a) the
Senior Funded Debt Leverage Ratio is less
than 3.75 to 1.00 at the end of each
fiscal quarter prior to such expenditure
and immediately after giving effect
thereto and (b) after giving effect to such
expenditure, the Aggregate Revolving
Credit Commitments shall exceed the sum of
the outstanding aggregate principal
amount of the Revolving Credit Loans and
Swing Line Loans, plus the LC Exposure,
plus the Direct Pay Letter of Credit
Exposure by an amount not less than
$10,000,000; provided that, in the event
clause (a) above has not been satisfied
and so long as (i) no Default exists or
would exist after giving effect to such
expenditure (including without limitation,
no Default would exist under Sections
9.12 through and including 9.16 after
giving effect to such expenditure), (ii)
the requirement in clause (b) above has
been satisfied, and (iii) such
expenditure does not exceed 20% of
Borrower's Net Worth as of the date of such
expenditure, then such expenditure shall be
deemed an Expansion Expenditure; and
"Expansion Expenditures" shall mean all
such expenditures.
"Federal Funds
Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100
of 1%) equal to the weighted average
of the rates on overnight federal funds
transactions with a member of the
Federal Reserve System arranged by federal
funds brokers on such day, as
published by the Federal Reserve Bank of
New York on the Business Day next
succeeding such day, provided that (a) if
the date for which such rate is to be
determined is not a Business Day, the
Federal Funds Rate for such day shall be
such rate on such transactions on the next
preceding Business Day as so
published on the next succeeding Business
Day, and (b) if such rate is not so
published for any day, the Federal Funds
Rate for such day shall be the average
rate charged to the Administrative Agent on
such day on such transactions as
determined by the Administrative Agent.
"Fee Letter"
means that certain letter agreement from Wells Fargo to the
Borrower dated March 24, 2005 concerning
certain fees in connection with this
Agreement and any agreements or instruments
executed in connection therewith.
"Financial
Statements" means the financial statement or statements of (a)
WCA Corp. described or referred to in the
first sentence of Section 7.02 and (b)
the Borrower and its Consolidated
Subsidiaries described or referred to in the
second sentence of Section 7.02.
"Foreign Lender"
means any Lender that is organized under the laws of a
jurisdiction other than that in which the
Borrower is resident for tax purposes.
For purposes of this
FIRST LIEN CREDIT AGREEMENT-PAGE 11
<PAGE>
definition, the United States of America,
each State thereof and the District of
Columbia shall be deemed to constitute a
single jurisdiction.
"Fund" means any
Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or
otherwise investing in commercial
loans and similar extensions of credit in
the ordinary course of its business.
"Funded Debt"
means, collectively, without duplication, whether classified
as Debt, an investment or otherwise on a
Person's consolidated balance sheet,
(a) all Debt described in clauses (a), (b),
(d), (e) and (o) of the definition
of "Debt", but excluding
Closure/Post-Closure Letters of Credit, and (b) all
guaranties and other surety obligations of
the Funded Debt of others; provided,
however, that, all obligations in respect
of surety bonds and similar
instruments of the nature and for the
purposes described in Schedule 7.02, item
1 are not included as Funded Debt, and
without duplication, Funded Debt shall be
reduced by the amount of cash to the extent
such cash is greater than $1,000,000
and is maintained by the Borrower or any
Guarantor.
"GAAP" means
generally accepted accounting principles in the United States
of America in effect from time to time.
"Governmental
Authority" means the government of the United States of
America or any other nation, or of any
political subdivision thereof, whether
state or local, and any agency, authority,
instrumentality, regulatory body,
court, central bank or other entity
exercising executive, legislative, judicial,
taxing, regulatory or administrative powers
or functions of or pertaining to
government (including any supra-national
bodies such as the European Union or
the European Central Bank).
"Governmental
Requirement" means any law, statute, code, ordinance, order,
determination, rule, regulation, judgment,
decree, injunction, franchise,
permit, certificate, license, authorization
or other directive or requirement
(whether or not having the force of law),
including, without limitation,
Environmental Laws, energy regulations and
occupational, safety and health
standards or controls, of any Governmental
Authority.
"Guarantor"
means the Parent and each of the Subsidiaries of the Borrower
now or hereafter in existence.
"Guaranty
Agreement" means that certain First Lien Guaranty Agreement
dated
as of the Closing Date by and among the
Guarantors and the Administrative Agent.
"Hedging
Agreements" means any forward contract, futures contract, swap,
cap, floor, collar, option or other
financing agreement or arrangement, the
value of which is dependent upon interest
rates, currency exchange rates,
commodities or other indices.
"Increase Date"
is defined in Section 2.04(b).
"Increased Use"
means, with respect to an Acquired Business or Acquired
Subsidiary, for the applicable period of
determination, waste disposed of in its
landfill in excess of Internalized
Waste.
FIRST LIEN CREDIT AGREEMENT-PAGE 12
<PAGE>
"Increasing
Lenders" is defined in Section 2.04(a).
"Indemnified
Costs" is defined in Section 11.12.
"Indemnified
Parties" is defined in Section 12.03(a)(ii).
"Indemnified
Taxes" means Taxes other than Excluded Taxes.
"Indemnity
Matters" means any and all actions, suits, proceedings
(including any investigations, litigation
or inquiries), claims, demands and
causes of action made or threatened against
a Person and, in connection
therewith, all losses, liabilities, damages
(including, without limitation,
consequential damages) or reasonable costs
and expenses of any kind or nature
whatsoever incurred by such Person whether
caused by the sole or concurrent
negligence of such Person seeking
indemnification.
"Information" is
defined in Section 12.14(b).
"Initial
Determination Date" is defined in the definition of Applicable
Margin.
"Initial
Funding" means the funding of the initial Loans or issuance of
the
initial Letters of Credit upon satisfaction
of the conditions set forth in
Sections 6.01 and 6.02.
"Installment
Sale Agreement" means that certain Installment Sale Agreement
dated as of August 1, 2002, by and between
the Issuer and Waste Corporation
Texas.
"Intercreditor
Agreement" means that certain Intercreditor Agreement dated
as of the date hereof by and among the
Agents, the Second Lien Agents, the
Borrower and the Guarantors.
"Interest
Period" means, with respect to any LIBOR Loan, the period
commencing on the date such LIBOR Loan is
made and ending on the numerically
corresponding day in the first, second,
third or sixth calendar month
thereafter, as the Borrower may select as
provided in Section 2.02 (or such
longer period as may be requested by the
Borrower and agreed to in writing by
all Lenders), except that each Interest
Period which commences on the last
Business Day of a calendar month (or on any
day for which there is no
numerically corresponding day in the
appropriate subsequent calendar month)
shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding
the foregoing: (a) no Interest Period may end after the
Termination Date; (b) no Interest Period
for any LIBOR Loan may end after the
due date of any installment, if any,
provided for in Section 3.01 to the extent
that such LIBOR Loan would need to be
prepaid prior to the end of such Interest
Period in order for such installment to be
paid when due; (c) each Interest
Period which would otherwise end on a day
which is not a Business Day shall end
on the next succeeding Business Day (or, if
such next succeeding Business Day
falls in the next succeeding calendar
month, on the next preceding Business
Day); and (d) no Interest Period shall have
a duration of less than one month
and, if the Interest Period for any LIBOR
Loans would otherwise be for a shorter
period, such Loans shall not be available
hereunder.
FIRST LIEN CREDIT AGREEMENT-PAGE 13
<PAGE>
"Internal
Control Event" means a material weakness in, or fraud that
involves management or other employees who
have a significant role in, the
Borrower's internal controls over financial
reporting, in each case as described
in the Securities Laws.
"Internalized
Waste" means waste collected by the Borrower or an Affiliate
that is disposed of in a landfill (or other
form of final disposal) owned or
operated by an Acquired Business or
Acquired Subsidiary before consummation of
its acquisition by the Borrower or a
Subsidiary.
"Investment" in
any Person means any loan or advance to such Person, any
purchase or other acquisition of any Equity
Interests or Debt or the assets
comprising a division or business unit or a
substantial part or all of the
business of such Person, any capital
contribution to such Person or any other
direct or indirect investment in such
Person.
"Issuer" means
the Gulf Coast Waste Disposal Authority.
"Issuing Bank"
means Wells Fargo or any other Lender or Affiliate of a
Lender agreed to between the Borrower and
the Administrative Agent to issue
Letters of Credit and the Direct Pay Letter
of Credit.
"LC Commitment"
at any time means $30,000,000.
"LC Exposure" at
any time means the difference between (a) the aggregate
undrawn face amount of all outstanding and
uncancelled Letters of Credit plus
the aggregate of all amounts drawn under
all Letters of Credit and not yet
reimbursed (including by borrowings
hereunder), minus (b) the aggregate amount
of all cash securing outstanding Letters of
Credit pursuant to Section 2.10(b).
"Lender" and
"Lenders" are defined in the preamble.
"Lender Party"
and "Lender Parties" are defined in Section 11.12.
"Letter of
Credit Agreements" means the written agreements with the
Issuing
Bank, as issuing lender for any Letter of
Credit, executed in connection with
the issuance by the Issuing Bank of the
Letters of Credit, such agreements to be
on the Issuing Bank's customary form for
letters of credit of comparable amount
and purpose as from time to time in effect
or as otherwise agreed to by the
Borrower and the Issuing Bank.
"Letters of
Credit" means the Existing LCs and the letters of credit issued
pursuant to Section 2.01(e) and all
reimbursement obligations pertaining to any
such letters of credit but excluding the
Direct Pay Letter of Credit, and
"Letter of Credit" means any one of the
Letters of Credit and the reimbursement
obligations pertaining thereto.
"Leverage Ratio"
means, for WCA Corp. and its Consolidated Subsidiaries,
calculated as of the end of each fiscal
quarter the ratio of (a) Funded Debt at
the end of such fiscal quarter to (b) Pro
Forma Adjusted EBITDA for the
immediately preceding four fiscal
quarters.
FIRST LIEN CREDIT AGREEMENT-PAGE 14
<PAGE>
"LIBOR Loans"
means Loans the interest rates on which are determined on the
basis of rates referred to in the
definition of "LIBOR Rate".
"LIBOR Rate"
means, for any Interest Period for all LIBOR Loans, an
interest rate per annum equal to the rate
per annum obtained by dividing (a) the
rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any
successor page) as the London interbank
offered rate for deposits in Dollars at
11:00 A.M. (London time) two Business
Days before the first day of such Interest
Period for a period equal to such
Interest Period (provided that, if for any
reason such rate is not available,
the term "LIBOR Rate" shall mean, for any
Interest Period for all LIBOR Loans,
the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as
the London interbank offered rate for
deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days
prior to the first day of such Interest
Period for a term comparable to such
Interest Period; provided, however, if more
than one rate is specified on
Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of
all such rates) by (b) a percentage equal
to 100% minus the LIBOR Rate Reserve
Percentage for such Interest Period.
"LIBOR Rate
Reserve Percentage" for any Interest Period for all LIBOR Loans
means the reserve percentage applicable two
Business Days before the first day
of such Interest Period under regulations
issued from time to time by the Board
of Governors of the Federal Reserve System
(or any successor) for determining
the maximum reserve requirement (including,
without limitation, any emergency,
supplemental or other marginal reserve
requirement) for a member bank of the
Federal Reserve System in New York City
with respect to liabilities or assets
consisting of or including Eurocurrency
Liabilities (or with respect to any
other category of liabilities that includes
deposits by reference to which the
interest rate on LIBOR Loans is determined)
having a term equal to such Interest
Period.
"Lien" means any
interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of
the Property, whether such interest
is based on the common law, statute or
contract, and whether such obligation or
claim is fixed or contingent, and including
but not limited to the lien or
security interest arising from a mortgage,
encumbrance, pledge, security
agreement, conditional sale or trust
receipt or a lease, consignment or bailment
for security purposes. The term "Lien"
shall include reservations, exceptions,
encroachments, easements, rights of way,
covenants, conditions, restrictions,
leases and other title exceptions and
encumbrances affecting Property. For the
purposes of this Agreement, the Borrower or
any Subsidiary shall be deemed to be
the owner of any Property which it has
acquired or holds subject to a
conditional sale agreement, or leases under
a financing lease or other
arrangement pursuant to which title to the
Property has been retained by or
vested in some other Person in a
transaction intended to create a financing.
"Loan Documents"
means this Agreement, the Direct Pay Letter of Credit, the
Reimbursement Agreement, all Letters of
Credit, all Letter of Credit Agreements,
the Guaranty Agreement, all Security
Agreements, all deeds of trust and
mortgages, the Intercreditor Agreement and
any other agreements, instruments and
documents executed by the Borrower or any
of its Subsidiaries that are referred
to therein as "Loan Documents" under this
Agreement.
FIRST LIEN CREDIT AGREEMENT-PAGE 15
<PAGE>
"Loans" means
the loans as provided for by Sections 2.01(a), (b) and (d).
"Loans" shall include Revolving Credit
Loans, Swing Line Loans, and Term B
Loans.
"Material
Adverse Effect" means any set of circumstances or events that
(a)
has or could reasonably be expected to have
any material and adverse effect
whatsoever upon, or result in or reasonably
be expected to result in a material
adverse change in, (A) the assets,
liabilities, financial condition, business,
operations or affairs of the Borrower and
its Subsidiaries taken as a whole
different from those reflected in the
Financial Statements or from the facts
represented or warranted in any Loan
Document, or (B) the ability of the
Borrower and its Subsidiaries taken as a
whole to carry out their business as at
the Closing Date or as proposed as of the
Closing Date to be conducted or meet
their obligations under the Loan Documents
on a timely basis, (b) impairs
materially or could be reasonably expected
to impair materially the ability of
the Borrower and its Subsidiaries to duly
and punctually pay and perform their
obligations under the Loan Documents or (c)
impairs materially or could
reasonably be expected to impair materially
the ability of the Administrative
Agent or any of the Lenders, to the extent
permitted, to enforce its legal
remedies pursuant to the Loan
Documents.
"Maximum Rate"
is defined in Section 12.11.
"Multiemployer
Plan" means a Plan defined as such in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA
Affiliate is making or accruing an
obligation to make contributions, or has
within the preceding six calendar years
made or accrued an obligation to make
contributions.
"Net Worth"
means, as at any date, the sum of the following for the
Borrower and its Consolidated Subsidiaries
determined (without duplication) in
accordance with GAAP:
(a) the amount
of preferred stock and common stock at par plus the amount
of surplus of the Borrower, plus
(b) the retained
earnings (or, in the case of retained earnings deficit,
minus the amount of such deficit),
minus
(c) the cost of
treasury shares.
"New Lenders"
means (a) an Affiliate of a Lender; (b) an Approved Fund; and
(c) any other Person (other than a natural
person) approved by the
Administrative Agent, the Issuing Bank, the
Swing Line Lender and the Borrower
(such approval not to be unreasonably
withheld) that, immediately prior to its
issuance of a Commitment pursuant to
Section 2.04 was not a Lender hereunder.
"Non-Core Asset"
means real Property of the Borrower or any Guarantor which
is not used to (a) generate or produce any
revenue, (b) generate or produce
revenue in excess of a de minimus amount or
(c) generate revenue other than from
a source or sources that are not a part of
the waste collection, transfer and
disposal business.
"Obligations"
means all indebtedness, obligations and liabilities of the
Borrower to any of the Lenders, any of
their Affiliates, or the Administrative
Agent, individually or collectively,
FIRST LIEN CREDIT AGREEMENT-PAGE 16
<PAGE>
existing on the date of this Agreement or
arising thereafter, direct or
indirect, joint or several, absolute or
contingent, matured or unmatured,
liquidated or unliquidated, secured or
unsecured, arising or incurred under any
Hedging Agreement with any Lender or any
Affiliate of any Lender, in connection
with the deposit and/or cash management
products and services provided by Wells
Fargo or its Affiliates related to any
deposit or other accounts of the Borrower
or any of its Subsidiaries, under this
Agreement or any of the other Loan
Documents or in respect of any of the Loans
made or reimbursement obligations
incurred under this Agreement, the Direct
Pay Letter of Credit, the
Reimbursement Agreement, Letters of Credit
or other instruments at any time
evidencing any thereof, including interest
accruing subsequent to the filing of
a petition or other action concerning
bankruptcy or other similar proceedings,
and all renewals, extensions, increases,
refinancings and replacements for the
foregoing.
"Other Taxes"
means all present or future stamp or documentary taxes or any
other excise or property taxes, charges or
similar levies arising from any
payment made hereunder or under any other
Loan Document or from the execution,
delivery or enforcement of, or otherwise
with respect to, this Agreement or any
other Loan Document.
"Parent" means
WCA Holdings Corporation, a Delaware corporation.
"Participant" is
defined in Section 12.05(d).
"PBGC" means the
Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its
functions.
"Percentage
Share" means the percentage of the Aggregate Commitments to be
provided by a Lender under this Agreement,
as modified from time to time to
reflect any assignments permitted by
Section 12.05(b).
"Person" means
any individual, corporation, company, voluntary association,
partnership, joint venture, trust,
unincorporated organization, Governmental
Authority or any agency, instrumentality or
political subdivision thereof, or
any other form of entity.
"Plan" means any
employee pension benefit plan, as defined in Section 3(2)
of ERISA, which (a) is currently or
hereafter sponsored, maintained or
contributed to by the Borrower, an ERISA
Affiliate or (b) was at any time during
the preceding six calendar years sponsored,
maintained or contributed to, by the
Borrower or an ERISA Affiliate with respect
to which the Borrower, or an ERISA
Affiliate could have liability under Title
IV of ERISA in the event such plan
has been or were to be terminated.
"Platform" is
defined in Section 12.02(b)(iii).
"Post-Default
Rate" means, in respect of any principal of any Loan or any
other amount payable by the Borrower under
this Agreement or any other Loan
Document, a rate per annum during the
period commencing on the date of
occurrence of an Event of Default until
such amount is paid in full or all
Events of Default are cured or waived equal
to 2% per annum above the Base Rate
as in effect from time to time plus the
Applicable Margin (if any), but in no
event to exceed the Maximum Rate; provided,
however, for a LIBOR Loan, the
"Post-Default Rate" for such principal
shall be, for the period commencing on
the date of occurrence of an Event of
FIRST LIEN CREDIT AGREEMENT-PAGE 17
<PAGE>
Default and ending on the earlier to occur
of the last day of the Interest
Period therefor or the date all Events of
Default are cured or waived, 2% per
annum above (a) in the case of a Revolving
Credit Loan, the interest rate for
such Revolving Credit Loan as provided in
Section 3.02(a)(ii) and (b) in the
case of a Term B Loan, the interest rate
for such Term B Loan as provided in
Section 3.02(a)(iv), but in no event to
exceed the Maximum Rate.
"Prime Rate"
means the rate of interest from time to time announced
publicly by Wells Fargo, in San Francisco,
California, as its prime rate. Such
rate is set by Wells Fargo as a general
reference rate of interest, taking into
account such factors as Wells Fargo may
deem appropriate, it being understood
that many of Wells Fargo's commercial or
other loans are priced in relation to
such rate, that it is not necessarily the
lowest or best rate actually charged
to any customer and that Wells Fargo may
make various commercial or other loans
at rates of interest having no relationship
to such rate. In addition, such rate
is evidenced by the recording thereof after
its announcement in such internal
publication or publications as Wells Fargo
may designate, and each change in the
Prime Rate will be effective on the day the
change is announced within Wells
Fargo; provided however, such rate shall be
a rate of interest generally applied
by Wells Fargo to other loan transactions
to the extent such transactions
include rates based in whole or in part on
the Prime Rate.
"Principal
Office" means the principal office of the Administrative Agent,
presently located at 1445 Ross Avenue,
Suite 300, Dallas, Texas 75202.
"Prior
Acquisition Add-Back" means, for any period, the EBITDA for
such
period of any assets or businesses acquired
by the Borrower or any of its
Consolidated Subsidiaries (the "Acquired
Business") or a Consolidated Subsidiary
acquired or formed since the beginning of
such period (the "Acquired
Subsidiary") so long as (a) the acquisition
of the Acquired Business or the
Acquired Subsidiary satisfied the criteria
of a Qualified Acquisition
Expenditure, (b) the Borrower, the Acquired
Subsidiary and the other
Subsidiaries complied with requirements of
Section 8.08, (c) the Administrative
Agent (i) received the audited annual
consolidated and consolidating financial
statements for such Acquired Business or
Acquired Subsidiary for the fiscal year
most recently ended, accompanied by the
related opinion of a Registered Public
Accounting Firm acceptable to the
Administrative Agent, which financial
statements and opinion satisfied the
criteria set forth in Section 8.01(a), or
(ii) if audited annual financial statements
of the Acquired Business or the
Acquired Subsidiary were unavailable,
received such financial statements and
other information (including the amount of
EBITDA used in determining Pro Forma
Adjusted EBITDA, plus, for the purpose of
computing Pro Forma Adjusted EBITDA,
the effect of Additional Volume and/or
Increased Use, as applicable, and
itemized direct cost savings that will be
achieved as a result of, or in
connection with, the acquisition) requested
by the Administrative Agent, in form
and substance satisfactory to the
Administrative Agent, and (d) the
Administrative Agent received unaudited
consolidated and consolidating financial
statements (or other financial information)
of the Acquired Business or the
Acquired Subsidiary for the fiscal quarter
most recently ended and for the
portion of the fiscal year then ended, all
calculations and reports as described
herein to be in form and substance
reasonably satisfactory to the Administrative
Agent.
"Pro Forma
Adjusted EBITDA" means, for any period, the sum of, without
duplication, (a) EBITDA for such period,
plus (b) non-recurring non-cash
expenses or charges during such
FIRST LIEN CREDIT AGREEMENT-PAGE 18
<PAGE>
period, plus (c) for any acquisitions which
are consummated on or after the
Closing Date, add-backs permitted pursuant
to Article 11, Regulation S-X of the
Securities Act of 1933 for the 12-month
period then ended, plus (d) the effect
of Additional Volume and/or Increased Use,
as applicable, and itemized direct
cost savings that will be achieved as a
result of, or in connection with, any
acquisitions consummated after the Closing
Date, plus (e) non-cash charges for
accretion on closure and post-closure
obligations, plus (f) non-cash charges
associated with the disposal contract
between Waste Management, Inc. and the
Borrower, plus (g) for any acquisitions
which have been consummated prior to the
Closing Date, the Prior Acquisition
Add-Back, plus (h) non-cash charges (or
minus non-cash benefits, if applicable)
reflecting the adoption of SFAS No. 123
(and all amendments thereto), plus (i) cash
compensation charges in an aggregate
amount not to exceed $5,000,000 and
non-cash compensation charges, all with
respect to stock options outstanding and
shares issued by Waste Corporation in
connection with the extinguishment of
options and warrants as part of the 2004
Reorganization, plus (j) non-cash expense
(or minus non-cash income, if
applicable) associated with FAS 133
treatment of any interest rate Hedging
Agreements, plus (k) non-cash losses on
asset sales in an aggregate amount not
to exceed $500,000.
"Property" means
any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or
intangible.
"Qualified
Acquisition Expenditure" means collectively, an expenditure by
the Borrower or one of its Subsidiaries
made in connection with or in
furtherance of the acquisition of a Person
engaged in a similar line of business
as the Borrower and its Subsidiaries, so
long as (i) the Senior Funded Debt
Leverage Ratio is less than 3.75 to 1.00 at
the end of each fiscal quarter prior
to such expenditure and immediately after
giving effect thereto and (ii) after
giving effect to such expenditure, the
Aggregate Revolving Credit Commitments
shall exceed the sum of the outstanding
principal amount of the Revolving Credit
Loans and Swing Line Loans, plus the LC
Exposure, plus the Direct Pay Letter of
Credit Exposure by an amount not less than
$10,000,000; provided that, in the
event clause (i) above has not been
satisfied and so long as (1) no Default
exists or would exist after giving effect
to such expenditure (including without
limitation, no Default would exist under
Sections 9.12 through and including
9.16 after giving effect to such
expenditure), (2) the requirement in clause
(ii) above has been satisfied, and (3) such
expenditure does not exceed 20% of
the Borrower's Net Worth as of the date of
such expenditure, then such
expenditure shall be deemed a Qualified
Acquisition Expenditure; and "Qualified
Acquisitions Expenditures" shall mean all
such expenditures.
"Qualified
Dividend" means any distribution or dividend paid or made by
the
Borrower or Parent to its respective
stockholders equal to the amount of any
regularly scheduled payments then due and
payable on either (a) Debt of WCA
Corp. existing on the Closing Date or (b)
Debt of WCA Corp. incurred after the
Closing Date so long as such Debt described
in this clause (b) has a maturity
date at least six months after the
scheduled Termination Date (as defined in the
Second Lien Credit Agreement).
"Quarterly
Dates" means the last day of each March, June, September and
December, in each year, the first of which
shall be June 30, 2005; provided,
however, that if any such day is not a
Business Day, such Quarterly Date shall
be the next succeeding Business Day.
FIRST LIEN CREDIT AGREEMENT-PAGE 19
<PAGE>
"Register" is
defined in Section 12.05(c).
"Registered
Public Accounting Firm" has the meaning specified in the
Securities Laws and shall be independent of
the Borrower as prescribed by the
Securities Laws.
"Regulation D"
means Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as the
same may be amended or supplemented
from time to time.
"Regulatory
Change" means, with respect to any Lender, any change after the
Closing Date in any Governmental
Requirement (including Regulation D) or the
adoption or making after such date of any
interpretations, directives or
requests applying to a class of lenders
(including such Lender or its Applicable
Lending Office) of or under any
Governmental Requirement (whether or not having
the force of law) by any Governmental
Authority charged with the interpretation
or administration thereof.
"Reimbursement
Agreement" means that certain Reimbursement Agreement dated
as of August 30, 2002 among the Borrower,
Waste Corporation Texas and the
Issuing Bank.
"Related
Documents" is defined in the Reimbursement Agreement.
"Related
Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors,
officers, employees, agents, attorneys
and advisors of such Person and of such
Person's Affiliates.
"Released
Parties" is defined in Section 12.17.
"Required First
Lien Lenders" means, at any time while no Loans are
outstanding, two or more Lenders having
more than 50% of the Aggregate
Commitments and, at any time while Loans
are outstanding, two or more Lenders
holding more than 50% of the aggregate
principal amount of the outstanding Loans
(without regard to any sale by a Lender of
a participation in any Loan under
Section 12.05(d)), unused Aggregate
Revolving Credit Commitments and the Direct
Pay Letter of Credit Exposure at such time,
provided that:
(a) with respect to amendments, waivers or consents relating to
Sections 2.01(a), 2.03, 3.01(a),
10.02(a)(i) and 10.02(a)(iii), "Required First
Lien Lenders" means the Required Revolving
Credit Lenders; and
(b) with respect to amendments, waivers or consents relating to
Sections 2.01(b) and 3.01(b), "Required
First Lien Lenders" means the Required
Term B Lenders.
"Required
Revolving Credit Lenders" means, at any time while no Loans are
outstanding, two or more Lenders having
more than fifty percent (50%) of the
Aggregate Revolving Credit Commitments and,
at any time Revolving Credit Loans
are outstanding, two or more Lenders
holding more than fifty percent (50%) of
the aggregate principal amount of the
outstanding Revolving Credit Loans
(without regard to any sale by a Lender of
a participation in any Revolving
Credit Loan under Section 12.05(d)), unused
Aggregate Revolving Credit
Commitments and the Direct Pay Letter of
Credit Exposure at such time.
FIRST LIEN CREDIT AGREEMENT-PAGE 20
<PAGE>
"Required Term B
Lenders" means two or more Lenders holding more than fifty
percent (50%) of the aggregate principal
amount of the outstanding Term B Loans
(without regard to any sale by a Lender of
a participation in any Term B Loan
under Section 12.05(d)) at any time.
"Reserve
Requirement" means, for any Interest Period for any LIBOR Loan,
the average maximum rate at which reserves
(including any marginal, supplemental
or emergency reserves) are required to be
maintained during such Interest Period
under Regulation D by member banks of the
Federal Reserve System in New York
City with deposits exceeding one billion
Dollars against "Eurocurrency
liabilities" (as such term is used in
Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement
shall reflect any other reserves
required to be maintained by such member
banks by reason of any Regulatory
Change against (a) any category of
liabilities which includes deposits by
reference to which LIBOR is to be
determined as provided in the definition of
"LIBOR" or (b) any category of extensions
of credit or other assets which
include a LIBOR Loan.
"Responsible
Officer" means, as to any Person, the Chief Executive Officer,
the President or any Vice President of such
Person and, with respect to
financial matters, the term "Responsible
Officer" shall include the Chief
Financial Officer or, with respect to the
Borrower, the Controller of such
Person. Unless otherwise specified, all
references to a Responsible Officer
herein shall mean a Responsible Officer of
the Borrower.
"Revolving
Credit Commitment" means, for any Lender, its obligation to
make
Revolving Credit Loans and participate in
the issuance of Letters of Credit and
the Direct Pay Letter of Credit as set
forth opposite such Lender's name on
Annex I under the caption "Revolving Credit
Commitment" (as the same may be
reduced pursuant to Section 2.03(b) pro
rata to each Lender based on its
Percentage Share), as modified from time to
time to reflect any assignments
permitted by Section 12.05(b).
"Revolving
Credit Loans" means Loans made pursuant to Section 2.01(a).
"Sarbanes-Oxley"
means the Sarbanes-Oxley Act of 2002.
"SEC" means the
Securities and Exchange Commission or any successor
Governmental Authority.
"Second Lien
Administrative Agent" means Wells Fargo and its successors and
assigns.
"Second Lien
Agents" means collectively, the Second Lien Administrative
Agent and the Second Lien Collateral Agent
and their successors and assigns.
"Second Lien
Collateral Agent" means Wells Fargo and its successors and
assigns.
"Second Lien
Credit Agreement" means that certain Second Lien Credit
Agreement dated as of the Closing Date, by
and among the Borrower, the Second
Lien Agents and the other lenders party
thereto, as the same may be amended,
restated or modified as permitted by the
Intercreditor Agreement.
FIRST LIEN CREDIT AGREEMENT-PAGE 21
<PAGE>
"Second Lien
Financing" means the second lien financing incurred by the
Borrower pursuant to the Second Lien Credit
Agreement in an aggregate principal
amount not in excess of $25,000,000.
"Secured
Parties" means the Agents, the Lenders, each Issuing Bank and
each
Affiliate of a Lender that is a party to a
Hedging Agreement.
"Securities
Laws" means the Securities Act of 1933, the Securities Exchange
Act of 1934, Sarbanes-Oxley and the
applicable accounting and auditing
principles, rules, standards and practices
promulgated, approved or incorporated
by the SEC or the Public Company Accounting
Oversight Board, as each of the
foregoing may be amended and in effect on
any applicable date hereunder.
"Security
Agreements" means, collectively, (a) that certain First Lien
Security Agreement dated as of the Closing
Date by and between the Parent and
the Collateral Agent for the benefit of the
Secured Parties and (b) that certain
First Lien Security Agreement dated as of
the Closing Date by and among the
Borrower, Borrower's Subsidiaries and the
Collateral Agent for the benefit of
the Secured Parties.
"Senior Funded
Debt" means all Funded Debt other than Subordinated Debt and
the Second Lien Financing.
"Senior Funded
Debt Leverage Ratio" means, for the Borrower and its
Consolidated Subsidiaries, calculated as of
the end of each fiscal quarter, the
ratio of (a) Senior Funded Debt as of the
end of such fiscal quarter to (b) Pro
Forma Adjusted EBITDA for the immediately
preceding four fiscal quarters.
"Settlement"
means the making or receiving of payments, in immediately
available funds, by the Lenders to or from
the Administrative Agent in
accordance with Section 2.01(d) hereof to
the extent necessary to cause each
such Lender's actual share of the
outstanding amount of Swing Line Loans to be
equal to such Lender's Percentage Share of
the outstanding Swing Line Loans, in
any case when, prior to such action, the
actual share is not so equal.
"Settlement
Amount" is defined in Section 2.01(d)(ii).
"Settlement
Date" is defined in Section 2.01(d)(ii).
"Settling
Lender" is defined in Section 2.01(d)(ii).
"Special Entity"
means, with respect to any Person, any joint venture,
limited liability company or partnership,
general or limited partnership or any
other type of partnership or company (other
than a corporation) in which such
Person or one or more of its other
Subsidiaries is a member, owner, partner or
joint venturer and owns, directly or
indirectly, at least a majority of the
equity of such entity or controls such
entity, but excluding any tax
partnerships that are not classified as
partnerships under state law. For
purposes of this definition, any Person
which owns directly or indirectly an
equity investment in another Person which
allows the first Person to manage or
elect managers who manage the normal
activities of such second Person will be
FIRST LIEN CREDIT AGREEMENT-PAGE 22
<PAGE>
deemed to "control" such second Person
(e.g. a sole general partner controls a
limited partnership).
"Subordinated
Debt" means any Debt of the Borrower expressly subordinated
to the Obligations, on terms specifically
including, without limitation, that
payments on such Debt shall be prohibited
if a Default exists or would result
from such payment, and other terms and
conditions and pursuant to documentation,
all in form and substance reasonably
satisfactory to the Administrative Agent
and Required First Lien Lenders, such
consents not to be unreasonably withheld.
"Subsidiary"
means (a) any corporation of which at least a majority of the
outstanding shares of stock having by the
terms thereof ordinary voting power to
elect a majority of the board of directors
of such corporation (irrespective of
whether or not at the time stock of any
other class or classes of such
corporation shall have or might have voting
power by reason of the happening of
any contingency) is at the time directly or
indirectly owned or controlled by
another Person or one or more of such
Person's Subsidiaries or by such Person
and one or more of its Subsidiaries and (b)
any Special Entity. Unless otherwise
expressly stated herein, each reference to
the term "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Swing Line
Commitment" means, for the Swing Line Lender, its obligation to
make Swing Line Loans up to
$10,000,000.
"Swing Line
Facility" means the facility pursuant to Section 2.01(d).
"Swing Line
Lender" means Wells Fargo or such other Lender as the
Administrative Agent, the Borrower and such
Lender shall agree.
"Swing Line
Loans" means the Loans made pursuant to Section 2.01(d).
"Syndication
Agent" is defined in the preamble.
"Taxes" means
all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees
or other charges imposed by any
Governmental Authority, including any
interest, additions to tax or penalties
applicable thereto.
"Term B
Commitment" means, as to each Lender, its obligation to make a
Term
B Loan (which amounts aggregate
$100,000,000 in total), as the same may be
modified from time to time to reflect any
assignment permitted by Section
12.05(b).
"Term B Loans"
means the term loans made pursuant to Section 2.01(b).
"Termination
Date" means (a) with respect to the Aggregate Revolving Credit
Commitments, the earlier of (i) April 28,
2010, and (ii) the date that the
Aggregate Revolving Credit Commitments are
sooner terminated pursuant to Section
2.03(b) or 10.02 and the Revolving Credit
Loans are prepaid in full pursuant to
Section 2.08 and (b) with respect to the
Aggregate Term B Commitments, the
earlier of (i) April 28, 2011 and (ii) the
date that the Aggregate Term B
Commitments are sooner terminated pursuant
to Section 2.03(b) or 10.02 and the
Term B Loans are prepaid in full pursuant
to Section 2.08.
FIRST LIEN CREDIT AGREEMENT-PAGE 23
<PAGE>
"Transfer" is
defined in Section 9.17.
"Type" means,
with respect to any Loan, a Base Rate Loan or a LIBOR Loan.
"Waste
Corporation" means Waste Corporation of America LLC, a Delaware
limited liability company.
"Waste
Corporation Texas" means Waste Corporation of Texas, L.P., a
Delaware limited partnership.
"WCA Corp."
means WCA Waste Corporation, a Delaware corporation.
"Welfare Plan"
means any employee welfare benefit plan, as defined in
Section 3(1) of ERISA, which (a) is
currently or hereafter sponsored maintained
or contributed to by the Borrower, any
Subsidiary or an ERISA Affiliate or (b)
was at any time during the preceding six
calendar years sponsored, maintained or
contributed to, by the Borrower, any
Subsidiary or an ERISA Affiliate.
"Wells Fargo" is
defined in the preamble.
Section 1.02
Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of
the terms defined. Whenever the
context may require, any pronoun shall
include the corresponding masculine,
feminine and neuter forms. The words
"include," "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation." The word "will"
shall be construed to have the same meaning
and effect as the word "shall."
Unless the context requires otherwise (a)
any definition of or reference to any
agreement, instrument or other document
herein shall be construed as referring
to such agreement, instrument or other
document as from time to time amended,
supplemented or otherwise modified (subject
to any restrictions on such
amendments, supplements or modifications
set forth herein), (b) any reference
herein to any Person shall be construed to
include such Person's successors and
assigns, (c) the words "herein," "hereof"
and "hereunder," and words of similar
import, shall be construed to refer to this
Agreement in its entirety and not to
any particular provision hereof, (d) all
references herein to Articles,
Sections, Exhibits and Schedules shall be
construed to refer to Articles and
Sections of, and Exhibits and Schedules to,
this Agreement, (e) any reference to
any law or regulation herein shall, unless
otherwise specified, refer to such
law or regulation as amended, modified or
supplemented from time to time and (f)
the words "asset" and "property" shall be
construed to have the same meaning and
effect and to refer to any and all tangible
and intangible assets and
properties, including cash, securities,
accounts and contract rights.
Section 1.03
Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used
herein shall be interpreted, all
determinations with respect to accounting
matters hereunder shall be made, and
all financial statements and certificates
and reports as to financial matters
required to be furnished to the
Administrative Agent or the Lenders hereunder
shall be prepared, in accordance with GAAP,
applied on a basis consistent with
the audited financial statements of the
Borrower referred to in Section 7.02
(except for changes concurred with by the
Borrower's Registered Public
Accounting Firm). If at any time any change
in GAAP would affect the computation
of any financial ratio or requirement set
forth
FIRST LIEN CREDIT AGREEMENT-PAGE 24
<PAGE>
in any Loan Document, and either the
Administrative Agent, the Borrower or the
Required First Lien Lenders shall so
request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in
good faith to amend such ratio or
requirement to preserve the original intent
thereof in light of such change in
GAAP (subject to the approval of the
Required First Lien Lenders); provided
that, until so amended, (a) such ratio or
requirement shall continue to be
computed in accordance with GAAP prior to
such change therein and (b) the
Borrower shall provide to the
Administrative Agent and the Lenders financial
statements and other documents required
under this Agreement or as reasonably
requested hereunder setting forth a
reconciliation between calculations of such
ratio or requirement made before and after
giving effect to such change in GAAP.
ARTICLE II
COMMITMENTS
Section 2.01
Loans and Letters of Credit.
(a) Revolving Credit Loans. Each Lender severally agrees, on the
terms
and conditions of this Agreement, to make
loans to the Borrower during the
period from and including (i) the Closing
Date or (ii) such later date that such
Lender becomes a party to this Agreement as
provided in Section 12.05(b), to and
up to, but excluding, the Termination Date
in an aggregate principal amount at
any one time outstanding up to, but not
exceeding, the amount of such Lender's
Revolving Credit Commitment as then in
effect; provided, however, that the
aggregate principal amount of all such
Revolving Credit Loans by all Lenders
hereunder at any one time outstanding
together with the LC Exposure, the Direct
Pay Letter of Credit Exposure and the
outstanding Swing Line Loans shall not
exceed the Aggregate Revolving Credit
Commitments. Subject to the terms of this
Agreement, during the period from the
Closing Date to and up to, but excluding,
the Termination Date, the Borrower may
borrow, repay and reborrow the amount
described in this Section 2.01(a).
(b) Term B Loans. Each Lender severally agrees, subject to the
terms
and conditions of this Agreement, to make a
term loan to the Borrower not to
exceed its Term B Commitment. Such Term B
Loan shall be made by way of a single
borrowing made on the Closing Date and a
single borrowing made on the date the
Borrower has exercised its option pursuant
to Section 2.04(a). Subject to
Section 2.04(a), any portion of each
Lender's Term B Commitment not utilized by
such borrowing on such date shall be
permanently canceled.
(c) Direct Pay Letter of Credit. The Issuing Bank, subject to
the
terms and conditions of the Existing Credit
Agreement, issued the Direct Pay
Letter of Credit in a face amount not to
exceed the Direct Pay Letter of Credit
Commitment for the account of the Borrower
or Waste Corporation Texas as
described in the Reimbursement Agreement;
provided, however, that the aggregate
principal amount of all such Revolving
Credit Loans by all Lenders hereunder at
any one time outstanding together with the
LC Exposure, the Direct Pay Letter of
Credit Exposure and the outstanding Swing
Line Loans shall not exceed the
Aggregate Revolving Credit Commitments. In
the event of any conflict between any
provision of the Reimbursement Agreement
and this Agreement or the Existing
Credit Agreement, the Borrower, the Issuing
Bank, the Administrative Agent and
the Lenders hereby agree that the
provisions of
FIRST LIEN CREDIT AGREEMENT-PAGE 25
<PAGE>
the Reimbursement Agreement shall govern.
The Issuing Bank sent to the Borrower
and each Lender, immediately upon issuance
of the Direct Pay Letter of Credit, a
true and complete copy of the Direct Pay
Letter of Credit, and will send
immediately upon issuance of any amendment
of the Direct Pay Letter of Credit, a
true and correct copy of such amendment.
The Lenders participate in the Direct
Pay Letter of Credit according to their
respective Percentage Shares pursuant to
Section 2.10.
(d) Swing Line Loans.
(i) Solely for ease of administration of the Revolving Credit
Loans, the Swing Line Lender may, upon
receipt of a notice required under
Section 2.02(c) on the proposed date of
funding, but shall not be required to,
fund Base Rate Loans made in accordance
with the provisions of this Agreement,
bearing interest as set forth in Section
3.02(a)(i). The Swing Line Lender may,
in its sole discretion and without
conferring with the Lenders, make Swing Line
Loans to the Borrower by entry of credits
to the Borrower's operating account(s)
with the Swing Line Lender to cover checks
which the Borrower has drawn or made
against such account and shall notify the
Administrative Agent of any overdrafts
being advanced as Swing Line Loans. The
Borrower hereby requests and authorizes
the Swing Line Lender to make from time to
time such Swing Line Loans by means
of appropriate entries of such credits
sufficient to cover checks then
presented. The Borrower acknowledges and
agrees that the making of such Swing
Line Loans shall be subject in all respects
to the provisions of this Agreement
as if they were Swing Line Loans covered by
a request under Section 2.02(c),
including, without limitation, the
limitations set forth in this Section 2.01
and the requirements that the applicable
provisions of Section 6.01 (in the case
of Swing Line Loans made on the Closing
Date) and Section 6.02 be satisfied. All
actions taken by the Swing Line Lender
pursuant to the provisions of this
Section 2.01(d) shall be conclusive and
binding on the Borrower absent manifest
error or such Swing Line Lender's gross
negligence or willful misconduct. The
outstanding aggregate amount of Swing Line
Loans advanced by the Swing Line
Lender hereunder shall not exceed the Swing
Line Commitment at any time. Each
Lender with a Revolving Credit Commitment
shall remain severally and
unconditionally liable to fund its pro rata
share (based upon each Lender's
Percentage Share) of such Swing Line Loans
on each Settlement Date and, in the
event the Swing Line Lender chooses not to
fund all Base Rate Loans requested on
any date, to fund its Percentage Share of
the Base Rate Loans requested, subject
to satisfaction of the provisions hereof
relating to the making of Base Rate
Loans. Prior to each Settlement, all
payments or repayments of the principal of,
and interest on, Swing Line Loans shall be
credited to the account of the Swing
Line Lender. The Borrower shall have the
right, at its election, to prepay the
outstanding amount of the Swing Line Loans,
as a whole or in part, at any time
without penalty or premium.
(ii) The Lenders with Revolving Credit Commitments shall effect
Settlements on (A) the Business Day
immediately following any day which the
Swing Line Lender gives written notice to
the Administrative Agent to effect a
Settlement, (B) the Business Day
immediately following the Swing Line Lender's
or the Administrative Agent's becoming
aware of the existence of any Default,
(C) the Termination Date, (D) any date on
which the Borrower wishes to convert a
Swing Line Loan into a Revolving Credit
Loan, and (E) in any event, on the first
Business Day of each calendar quarter for
the immediately preceding calendar
quarter (each such date, a "Settlement
Date"). One Business Day prior to each
such Settlement
FIRST LIEN CREDIT AGREEMENT-PAGE 26
<PAGE>
Date, the Administrative Agent shall give
notice by facsimile or telecopier to
the Lenders with Revolving Credit
Commitments of (1) the respective outstanding
amount of Revolving Credit Loans made by
each Lender as at the close of the
prior Business Day, and (2) the amount that
any Lender, as applicable (a
"Settling Lender"), shall pay to effect a
settlement (a "Settlement Amount"). A
statement of the Administrative Agent
submitted to the Lenders with Revolving
Credit Commitments with respect to any
amounts owing hereunder shall be PRIMA
FACIE evidence of the amount due and owing.
Each Settling Lender shall, not
later than 11:00 a.m. (Central Time) on
each Settlement Date, effect a wire
transfer of immediately available funds to
the Administrative Agent, for the
benefit of the Swing Line Lender, at the
Administrative Agent's Principal Office
in the amount of such Lender's Settlement
Amount. All funds advanced by any
Lender with a Revolving Credit Commitment
as a Settling Lender pursuant to this
Section 2.01(d) shall for all purposes be
treated as a Base Rate Loan by that
Lender (in place of the Swing Loan Lender)
to the Borrower and all such funds so
advanced shall be treated as a payment in
full of such amount by the Borrower
under its Swing Line Loan.
(iii) Subject to the Settling Lender's receipt of the notice
required pursuant to Section 2.01(d)(ii),
the Administrative Agent may (unless
notified to the contrary by any Settling
Lender by 11:00 a.m. (Central Time) one
Business Day prior to the Settlement Date)
assume that each Settling Lender has
made available (or will make available by
the time specified in Section
2.01(d)(ii)) to the Administrative Agent
its Settlement Amount, and the
Administrative Agent may (but shall not be
required to), in reliance upon such
assumption, effect Settlements. If the
Settlement Amount of such Settling Lender
is made available to the Administrative
Agent on a date after such Settlement
Date, such Settling Lender shall pay the
Administrative Agent, for the benefit
of the Swing Line Lender, on demand an
amount equal to the product of (A) the
average, computed for the period referred
to in clause (C) below, of the
weighted average annual interest rate paid
by the Administrative Agent for
federal funds acquired by the
Administrative Agent during each day included in
such period times (B) such Settlement
Amount times (C) a fraction, the numerator
of which is the number of days that elapse
from and including such Settlement
Date to but not including the date on which
such Settlement Amount shall become
immediately available to the Administrative
Agent, and the denominator of which
is 360. Upon payment of such amount such
Settling Lender shall be deemed to have
delivered its Settlement Amount on the
Settlement Date and shall become entitled
to interest payable by the Borrower with
respect to such Settling Lender's
Settlement Amount as if such share were
delivered on the Settlement Date. If
such Settlement Amount is not in fact made
available to the Administrative Agent
by such Settling Lender within three
Business Days of such Settlement Date, the
Administrative Agent shall be entitled to
recover such amount from the Borrower,
with any unpaid interest thereon at the
Base Rate.
(iv) After any Settlement Date, any payment by the Borrower of
Swing Line Loans hereunder shall be
allocated pro rata among the Lenders with
Revolving Credit Commitments, in accordance
with such Lender's Percentage Share.
(v) If, prior to the making of a Revolving Credit Loan pursuant
to clause (ii) of this Section 2.01(d), a
Default has occurred and is
continuing, each Lender with a Revolving
Credit Commitment shall, on the date
such Revolving Credit Loan was to have been
made, purchase an undivided
participating interest in the outstanding
Swing Line Loans in an amount equal to
its Percentage Share of such Swing Line
Loans. Each Lender with a Revolving
FIRST LIEN CREDIT AGREEMENT-PAGE 27
<PAGE>
Credit Commitment will immediately transfer
to the Administrative Agent, for the
benefit of the Swing Line Lender, in
immediately available funds, the amount of
its participation and upon receipt thereof
the Administrative Agent will deliver
to such Lender a Swing Line participation
certificate dated the date of receipt
of such funds and in such amount.
(vi) Whenever, at any time after the Administrative Agent has
received from any Lender with a Revolving
Credit Commitment such Lender's
participating interest in the Swing Line
Loans pursuant to clause (v) above, the
Administrative Agent receives any payment
on account thereof, the Administrative
Agent will distribute to such Lender its
participating interest in such amount
(appropriately adjusted, in the case of
interest payments, to reflect the period
of time during which such Lender's
participating interest was outstanding and
funded) in like funds as received;
provided, however, that in the event that
such payment received by the Administrative
Agent is required to be returned,
such Lender will return to the
Administrative Agent any portion thereof
previously distributed by the
Administrative Agent to it in like funds as such
payment is required to be returned by the
Administrative Agent.
(vii) Each Lender's obligation to purchase participating
interests pursuant to clause (v) above
shall be absolute and unconditional and
shall not be affected by any circumstance,
including, without limitation, (A)
any set-off, counterclaim, recoupment,
defense or other right which such Lender
may have against the Administrative Agent,
the Borrower or any other Person for
any reason whatsoever; (B) the occurrence
or continuance of a Default; (C) any
adverse change in the condition (financial
or otherwise) of the Borrower or any
other Person; (D) any breach of this
Agreement by the Borrower or any other
Lender or the Administrative Agent; or (E)
any other circumstance, happening or
event whatsoever, whether or not similar to
any of the foregoing.
(e) Letters of Credit. During the period from and including the
Closing Date to, but excluding, the date 30
days prior to the Termination Date,
the Issuing Bank, as issuing bank for the
Lenders with Revolving Credit
Commitments, agrees to extend credit for
the account of the Borrower or any
Guarantor (other than the Parent) at any
time and from time to time by issuing,
renewing, extending or reissuing Letters of
Credit; provided however, the LC
Exposure at any one time outstanding shall
not exceed the lesser of (i) the LC
Commitment or (ii) the Aggregate Revolving
Credit Commitments, as then in
effect, minus the aggregate principal
amount of all Revolving Credit Loans,
Swing Line Loans, the Direct Pay Letter of
Credit Exposure and the LC Exposure
then outstanding. The Lenders with
Revolving Credit Commitments shall
participate in such Letters of Credit
according to their respective Percentage
Shares. Each of the Letters of Credit shall
(i) be issued by the Issuing Bank,
(ii) contain such terms and provisions as
are reasonably required by the Issuing
Bank, (iii) be for the account of the
Borrower or any Guarantor (other than the
Parent) and (iv) expire not later than five
Business Days prior to the
Termination Date.
(f) Limitation on Types of Loans. Subject to the other terms
and
provisions of this Agreement, at the option
of the Borrower, the Loans may be
Base Rate Loans or LIBOR Loans; provided
that, without the prior written consent
of the Required First Lien Lenders, no more
than 10 LIBOR Loans may be
outstanding at any time.
FIRST LIEN CREDIT AGREEMENT-PAGE 28
<PAGE>
Section 2.02
Borrowings, Continuations and Conversions, Letters of Credit.
(a) Borrowings. The Borrower shall give the Administrative
Agent
(which shall promptly notify the Lenders)
advance notice as hereinafter provided
of each borrowing hereunder, which shall
specify (i) the aggregate amount of
such borrowing, (ii) the Type and (iii) the
date (which shall be a Business Day)
of the Loans to be borrowed, and (iv) (in
the case of LIBOR Loans) the duration
of the Interest Period therefor.
(b) Minimum Amounts. All Base Rate Loan borrowings shall be in
amounts
of at least $500,000 or the remaining
balance of the Aggregate Commitments, if
less, or any whole multiple of $100,000 in
excess thereof, and all LIBOR Loan
borrowings shall be in amounts of at least
$1,000,000 or any whole multiple of
$500,000 in excess thereof.
(c) Notices. All borrowings (except for borrowings
automatically
funded under Section 2.10(d)),
continuations and conversions shall require
advance written notice to the
Administrative Agent (which shall promptly notify
the Lenders) in the form of Exhibit A (or
telephonic notice promptly confirmed
by such a written notice), which in each
case shall be irrevocable, from the
Borrower to be received by the
Administrative Agent (i) not later than 11:00
a.m. (Central time) on the date of each
Swing Line Loan and (ii) with respect to
all Loans other than Swing Line Loans, not
later than 11:00 a.m. (Central time)
at least one Business Day prior to the date
of each Base Rate Loan borrowing and
three Business Days prior to the date of
each LIBOR Loan borrowing, continuation
or conversion. Without in any way limiting
the Borrower's obligation to confirm
in writing any telephonic notice, the
Administrative Agent may act without
liability upon the basis of telephonic
notice believed by the Administrative
Agent in good faith to be from the Borrower
prior to receipt of written
confirmation. In each such case, the
Borrower hereby waives the right to dispute
the Administrative Agent's record of the
terms of such telephonic notice except
in the case of gross negligence or willful
misconduct by the Administrative
Agent.
(d) Continuation Options. Subject to the provisions made in
this
Section 2.02(d), the Borrower may elect to
continue all or any part of any LIBOR
Loan beyond the expiration of the then
current Interest Period relating thereto
by giving advance notice as provided in
Section 2.02(c) to the Administrative
Agent (which shall promptly notify the
Lenders) of such election, specifying the
amount of such Loan to be continued and the
Interest Period therefor. In the
absence of such a timely and proper
election, the Borrower shall be deemed to
have elected to convert such LIBOR Loan to
a Base Rate Loan pursuant to Section
2.02(e). All or any part of any LIBOR Loan
may be continued as provided herein,
provided that (i) any continuation of any
such Loan shall be (as to each Loan as
continued for an applicable Interest
Period) in amounts of at least $1,000,000
or any whole multiple of $500,000 in excess
thereof and (ii) no Default shall
have occurred and be continuing. If a
Default shall have occurred and be
continuing, each LIBOR Loan shall be
converted to a Base Rate Loan on the last
day of the Interest Period applicable
thereto.
(e) Conversion Options. The Borrower may elect to convert all or
any
part of any LIBOR Loan on the last day of
the then current Interest Period
relating thereto to a Base Rate Loan by
giving advance notice to the
Administrative Agent (which shall promptly
notify the Lenders) of such election.
Subject to the provisions made in this
Section 2.02(e), the
FIRST LIEN CREDIT AGREEMENT-PAGE 29
<PAGE>
Borrower may elect to convert all or any
part of any Base Rate Loan at any time
and from time to time to a LIBOR Loan by
giving advance notice as provided in
Section 2.02(c) to the Administrative Agent
(which shall promptly notify the
Lenders) of such election. All or any part
of any outstanding Loan may be
converted as provided herein, provided that
(i) any conversion of all or any
part of any Base Rate Loan into a LIBOR
Loan shall be (as to each such Loan into
which there is a conversion for an
applicable Interest Period) in amounts of at
least $1,000,000 or any whole multiple of
$500,000 in excess thereof and (ii) no
Default shall have occurred and be
continuing. If a Default shall have occurred
and be continuing, no Base Rate Loan may be
converted into a LIBOR Loan.
(f) Advances. Not later than 11:00 a.m. (Central time) on the
date
specified for each borrowing hereunder,
each Lender shall make available the
amount of the Loan to be made by it on such
date to the Administrative Agent, to
an account which the Administrative Agent
shall specify, in immediately
available funds, for the account of the
Borrower. The amounts so received by the
Administrative Agent shall, subject to the
terms and conditions of this
Agreement, be made available to the
Borrower by depositing the same, in
immediately available funds, in an account
of the Borrower, designated by the
Borrower and maintained at the Principal
Office.
(g) Letters of Credit. The Borrower shall give the Issuing Bank
(which
shall promptly notify the Lenders with
Revolving Credit Commitments of such
request and their Percentage Share of such
Letter of Credit) advance notice to
be received by the Issuing Bank not later
than 11:00 a.m. (Central time) not
less than three Business Days prior thereto
of each request for the issuance,
and at least the earlier of (A) 30 Business
Days prior to the date of the
renewal or extension, of a Letter of Credit
hereunder or (B) 30 calendar days
prior to the last date upon which the
Issuing Bank is required to give notice of
cancellation or non-renewal of such Letter
of Credit thereunder, which request
shall specify (i) the amount of such Letter
of Credit, (ii) the date (which
shall be a Business Day) such Letter of
Credit is to be issued, renewed or
extended, (iii) the duration thereof, (iv)
the name and address of the
beneficiary thereof and (v) such other
information as the Administrative Agent
may reasonably request, all of which shall
be reasonably satisfactory to the
Administrative Agent. Subject to the terms
and conditions of this Agreement, on
the date specified for the issuance,
renewal or extension of a Letter of Credit,
the Administrative Agent shall issue, renew
or extend such Letter of Credit to
the beneficiary thereof.
In conjunction
with the issuance of each Letter of Credit, the Borrower
shall execute a Letter of Credit Agreement.
In the event of any conflict between
any provision of a Letter of Credit
Agreement and this Agreement, the Borrower,
the Issuing Bank, the Administrative Agent
and the Lenders hereby agree that the
provisions of this Agreement shall
govern.
The Issuing Bank
will send to the Borrower and each Lender, immediately
upon issuance of any Letter of Credit, or
an amendment thereto, a true and
complete copy of such Letter of Credit, or
such amendment thereto.
FIRST LIEN CREDIT AGREEMENT-PAGE 30
<PAGE>
Section 2.03
Changes of Aggregate Revolving Credit Commitments.
(a) The Aggregate Revolving Credit Commitments shall be
automatically
adjusted as a result of any reductions
pursuant to Section 2.03(b) or 2.08.
(b) The Borrower shall have the right to terminate or to reduce
the
amount of the Aggregate Revolving Credit
Commitments at any time, or from time
to time, upon not less than three Business
Days' prior notice to the
Administrative Agent (which shall promptly
notify the Lenders) of each such
termination or reduction, which notice
shall specify the effective date thereof
and the amount of any such reduction (which
shall not be less than $1,000,000 or
any whole multiple of $1,000,000 in excess
thereof) and shall be irrevocable and
effective only upon receipt by the
Administrative Agent.
(c) The Aggregate Revolving Credit Commitments once terminated
or
reduced may not be reinstated.
Section 2.04
Increase in Aggregate Commitments.
(a) So long as (i) no Default has occurred and is continuing, and
(ii)
the Borrower has not terminated or reduced
in part any unused portion of the
Aggregate Revolving Credit Commitments at
any time pursuant to Section 2.03, the
Borrower may by notice to the
Administrative Agent, request a one-time increase
in the amount of the Aggregate Revolving
Credit Commitments or the Aggregate
Term B Commitments within the limitations
hereafter described, which notices
shall set forth the amount of such
increase. In accordance with Section 2.04(d),
the amount of the Aggregate Revolving
Credit Commitments or the Aggregate Term B
Commitments may be so increased either by
having one or more New Lenders that
have been approved by the Borrower become
Lenders and/or by having any one or
more of the then existing Lenders (at their
respective election in their sole
discretion) increase the amount of their
Commitments ("Increasing Lenders"),
provided that (i) the Revolving Credit
Commitment or Term B Commitment of any
New Lender shall not be less than
$5,000,000 and the sum of the Commitments of
the New Lenders and the increases in the
Commitments of the Increasing Lenders
shall be in an aggregate amount of not less
than $5,000,000 (and, if in excess
thereof, in integral multiples of
$1,000,000); (ii) the aggregate amount of all
the increases in the Aggregate Commitments
pursuant to this Section 2.04 shall
not exceed $25,000,000 (provided however,
the Administrative Agent shall have
consented in its sole discretion to the
utilization of the last $5,000,000 of
the amount described in this clause (ii));
(iii) the Borrower, each New Lender
and/or each Increasing Lender shall have
executed and delivered to the
Administrative Agent a commitment and
acceptance (the "Commitment and
Acceptance") substantially in the form of
Exhibit D hereto, and the
Administrative Agent shall have accepted
and executed the same, (iv) if
requested by the Administrative Agent, the
Borrower shall have delivered to the
Administrative Agent opinions of counsel
(substantially similar to the forms of
opinions provided for in Section 6.01(f),
modified to apply to the increase in
the Commitments and Commitment and
Acceptance executed and delivered in
connection therewith); (v) the Guarantors
shall have consented in writing to the
new Commitments or increases in Commitments
(as applicable) and shall have
agreed that their Guaranty Agreement
continues in full force and effect, and
(vi) the Borrower, each New Lender and/or
each Increasing Lender shall otherwise
have executed and delivered such other
instruments and documents as the
FIRST LIEN CREDIT AGREEMENT-PAGE 31
<PAGE>
Administrative Agent shall have reasonably
requested in connection with such new
Commitment or increase in the Commitment
(as applicable). The form and substance
of the documents required under clauses
(iii) through (vi) above shall be
reasonably acceptable to the Administrative
Agent. The Administrative Agent
shall provide written notice to all of the
Lenders hereunder of the admission of
any New Lender or the increase in the
Commitment of any Increasing Lender
hereunder and shall furnish to each of the
Lenders copies of the documents
required under clause (iii), (iv), (v) and
(vi) above.
(b) Upon the effective date of any increase in the Aggregate
Commitments pursuant to the provisions
hereof (such date hereinafter referred to
as the "Increase Date"), which Increase
Date shall be mutually agreed upon by
the Borrower, each New Lender, each
Increasing Lender and the Administrative
Agent, each New Lender and/or Increasing
Lender shall make a payment to the
Administrative Agent in an amount
sufficient, upon the application of such
payments by all New Lenders and Increasing
Lenders to the reduction of the
outstanding Loans held by the Lenders
(including the Increasing Lenders) to
cause the principal amount outstanding
under the Loans made by each Lender to be
equal to each Lender's Percentage Share of
the Aggregate Commitments as so
increased as described herein. The Borrower
hereby irrevocably authorizes each
New Lender and/or each Increasing Lender to
fund to the Administrative Agent the
payment required to be made pursuant to the
immediately preceding sentence for
application to the reduction of the
outstanding Loans held by the other Lenders,
and each such payment shall constitute a
Loan hereunder. If, as a result of the
repayment of the Loans provided for in this
Section 2.04(b), any payment of a
LIBOR Loan occurs on a day which is not the
last day of the applicable Interest
Period, the Borrower will pay to the
Administrative Agent for the benefit of any
of the Lenders (including any Increasing
Lender to the extent of LIBOR Loans
held by such Increasing Lender prior to
such Increase Date) holding a LIBOR Loan
any loss or cost incurred by such Lender
resulting therefrom in accordance with
Section 5.04. Upon the Increase Date, all
Loans outstanding hereunder (including
any Loans made by the New Lenders and/or
Increasing Lenders on the Increase
Date) shall be Base Rate Loans, subject to
the Borrower's right to convert the
same to LIBOR Loans on or after such date
in accordance with the provisions of
Section 2.02.
(c) Upon the Increase Date and the making of the Revolving
Credit
Loans by the New Lenders and/or Increasing
Lenders in accordance with the
provisions of Section 2.04(b), each New
Lender and/or each Increasing Lender
shall also be deemed to have irrevocably
and unconditionally purchased and
received without recourse or warranty, from
the Lenders with Revolving Credit
Commitments immediately prior to the
Increase Date, an undivided interest and
participation in any Letter of Credit and
Swing Line Loan, as applicable, then
outstanding, ratably, such that each Lender
(including each New Lender) with
Revolving Credit Commitments holds a
participation interest in each such Letter
of Credit and Swing Line Loan, as
applicable, in proportion to such Lender's
Percentage Share.
(d) Upon the notice by the Borrower to the Administrative Agent
pursuant to Section 2.04(a) hereof, each of
the then existing Lenders shall have
the right (at such Lender's election) to
increase its Commitment by an amount
equal to such Lender's Percentage Share of
the proposed increase in the
Aggregate Commitments. If less than all of
the proposed increase in Aggregate
Commitments is elected by the existing
Lenders, then any of the then existing
Lenders shall have the right to increase
its Commitment in an amount greater
than such Lender's
FIRST LIEN CREDIT AGREEMENT-PAGE 32
<PAGE>
Percentage Share of the proposed increase
in the Aggregate Commitments with the
Administrative Agent's approval. If the
entire amount of the proposed increase
in Aggregate Commitments is still not
obtained, the Borrower may with the
Administrative Agent's cooperation add New
Lenders, such New Lenders to be
reasonably acceptable to the Administrative
Agent, with new Commitments which
when added to the increase in Commitments
of the Increasing Lenders, shall equal
the requested increase in the Aggregate
Commitments. In the event the sum of
each New Lender's Commitment and the
increase in each Increasing Lender's
Commitment is less than the requested
increase in the Aggregate Commitments, the
Borrower may elect to accept the increase
in the Aggregate Commitments to be
equal to such lesser amount.
Notwithstanding anything to the contrary,
Administrative Agent shall not be liable
for any failure to obtain Increasing
Lenders or New Lenders hereunder or any
failure to increase the Aggregate
Commitments by the amount so requested by
the Borrower pursuant to Section
2.04(a).
(e) Nothing contained herein shall constitute, or otherwise be
deemed
to be a commitment or agreement on the part
of any Lender to increase its
Commitment hereunder at any time. No Lender
(except only for itself) shall have
the right to decline Borrower's request
pursuant to Section 2.04(a) for an
increase in the Aggregate Commitments.
Section 2.05 Fees.
(a) Commitment Fee. The Borrower shall pay to the
Administrative
Agent, for the account of each Lender
holding a Revolving Credit Commitment, a
commitment fee on the daily average unused
amount of the Aggregate Revolving
Credit Commitments for the period from and
including the Closing Date up to, but
excluding, the earlier of the date the
Aggregate Revolving Credit Commitments
are terminated or the Termination Date at a
rate per annum equal to the
applicable per annum percentage set forth
at the appropriate intersection in the
table shown below, based on the Leverage
Ratio on the most recent Determination
Date:
<TABLE>
<CAPTION>
COMMITMENT FEE
LEVERAGE RATIO
PERCENTAGE
--------------
--------------
<S>
<C>
Greater than or equal to 4.00:1.00
0.500%
Less than 4.00:1.00 but greater than or
equal to 3.50:1.00
0.375%
Less than 3.50:1.00 but greater than or
equal to 2:00:1.00
0.300%
Less than 2.00:1.00
0.250%
</TABLE>
The commitment fee percentage shall be
established as of each Determination Date
beginning with the Initial Determination
Date. Any change in the commitment fee
percentage following each Determination
Date shall be determined based upon the
information and computations set forth in
the financial statements and
Compliance Certificate furnished to the
Administrative Agent pursuant to Section
8.01, subject to review and approval of
such computations by the Administrative
Agent. Each change in the commitment fee
percentage shall be effective as of the
first day of the calendar month following
each Determination Date and shall
remain in effect until the date that is the
first day of the calendar month
following the next Determination Date
FIRST LIEN CREDIT AGREEMENT-PAGE 33
<PAGE>
for which a change in the commitment fee
percentage occurs; provided, however;
if the Borrower shall fail to deliver any
required financial statements or
Compliance Certificate within the time
period required by Section 8.01, the
commitment fee percentage shall be the
highest percentage amount set forth in
the above table for the period beginning on
the relevant Determination Date and
ending on the date that the appropriate
financial statements and Compliance
Certificate are so delivered.
Notwithstanding the foregoing, during the period
beginning on the Closing Date and ending on
the Initial Determination Date, the
commitment fee percentage shall be 0.50%.
Accrued commitment fees shall be
payable quarterly in arrears on each
Quarterly Date and on the earlier of the
date the Aggregate Revolving Credit
Commitments are terminated or the
Termination Date. For purposes of computing
the commitment fees payable
hereunder, outstanding Swing Line Loans
shall be disregarded.
(b) Letter of Credit and Direct Pay Letter of Credit Fees.
(i) The Borrower agrees to pay the Administrative Agent, for
the
account of each Lender holding a Revolving
Credit Commitment, commissions for
issuing the Letters of Credit on the daily
average outstanding of the maximum
liability of the Issuing Bank existing from
time to time under such Letter of
Credit (calculated separately for each
Letter of Credit) at the rate per annum
equal to the Applicable Margin in effect
from time to time for LIBOR Loans,
provided that each Letter of Credit shall
bear a minimum commission of $500.
Each Letter of Credit shall be deemed to be
outstanding up to the full undrawn
face amount of the Letter of Credit until
the Issuing Bank has received the
canceled Letter of Credit or a written
cancellation of the Letter of Credit from
the beneficiary of such Letter of Credit in
form and substance acceptable to the
Issuing Bank, or for any reductions in the
amount of the Letter of Credit (other
than from a drawing), written notification
from the beneficiary of such Letter
of Credit. Such commissions are payable
quarterly in arrears on each Quarterly
Date and upon cancellation or expiration of
each such Letter of Credit.
(ii) In addition to the foregoing, the Borrower shall pay to
the
Issuing Bank, for its own account, (A) a
fronting fee equal to 0.125% per annum
of the face amount of each Letter of Credit
issued, which fee is due and payable
on the date of any renewal or increase of
such Letter of Credit and (B)
amendment, transfer, negotiating and other
fees in accordance with the Issuing
Bank's then current fee policy generally
applicable to letters of credit of the
same or similar type issued by the Issuing
Bank.
(iii) In addition to the foregoing, the Borrower shall pay to
the
Issuing Bank, for its own account, certain
fees more specifically described in
the Reimbursement Agreement.
(c) The Borrower shall pay such other fees as are set forth in the
Fee
Letter in the manner and on the dates
specified therein to the extent not paid
prior to the Closing Date.
Section 2.06
Several Obligations. The failure of any Lender to make any
Loan to be made by it or to provide funds
for disbursements or reimbursements
under Letters of Credit on the date
specified therefor shall not relieve any
other Lender of its obligation to make its
Loan or provide funds on such date,
but no Lender shall be responsible for the
failure of any other Lender
FIRST LIEN CREDIT AGREEMENT-PAGE 34
<PAGE>
to make a Loan to be made by such other
Lender or to provide funds to be
provided by such other Lender.
Section 2.07
Evidence of Debt. (a) The Borrower hereby unconditionally
promises to pay (i) to the Administrative
Agent for the account of each Lender
the then unpaid principal amount of each
Revolving Credit Loan on the
Termination Date, (ii) to the
Administrative Agent for the account of each
Lender the then unpaid principal amount of
each LIBOR Loan on the last day of
the Interest Period applicable to such Loan
and (iii) to the Swing Line Lender
the then unpaid principal amount of each
Swing Line Loan on the earlier of the
Termination Date and the day that is at
least seven Business Days after such
Swing Line Loan is made; provided that on
each date that a Revolving Credit Loan
is made, the Borrower shall repay all Swing
Line Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice
an account or accounts evidencing the
indebtedness of the Borrower to such
Lender resulting from each Loan made by
such Lender, including the amounts of
principal and interest payable and paid to
such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall
record (i) the amount of each Loan made
hereunder, the class and Type thereof
and the Interest Period applicable thereto,
(ii) the amount of any principal or
interest due and payable or to become due
and payable from the Borrower to each
Lender hereunder and (iii) the amount of
any sum received by the Administrative
Agent hereunder for the account of the
Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to clause
(b)
or (c) of this Section shall be prima facie
evidence of the existence and
amounts of the obligations recorded
therein; provided that the failure of any
Lender or the Administrative Agent to
maintain such accounts or any error
therein shall not in any manner affect the
obligation of the Borrower to repay
the Loans in accordance with the terms of
this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by
a
promissory note. In such event, the
Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to
the order of such Lender (or, if
requested by such Lender, to such Lender
and its registered assigns) and in a
form approved by the Administrative Agent.
Thereafter, the Loans evidenced by
such promissory note and interest thereon
shall at all times (including after
assignment pursuant to Section 12.05) be
represented by one or more promissory
notes in such form payable to the order of
the payee named therein (or, if such
promissory note is a registered note, to
such payee and its registered assigns).
Section 2.08
Prepayments.
(a) Voluntary Prepayments. The Borrower may prepay the Base Rate
Loans
upon not less than one Business Day's prior
notice to the Administrative Agent
(which shall promptly notify the Lenders),
which notice shall specify the
prepayment date (which shall be a Business
Day) and the amount of the prepayment
(which shall be at least $500,000 or any
whole multiple of $100,000 or, if less,
the remaining aggregate principal balance
outstanding on the
FIRST LIEN CREDIT AGREEMENT-PAGE 35
<PAGE>
Loans) and shall be irrevocable and
effective only upon receipt by the
Administrative Agent, provided that
interest on the principal prepaid, accrued
to the prepayment date, shall be paid on
the prepayment date. The Borrower may
prepay LIBOR Loans on the same conditions
as for Base Rate Loans (except that
prior notice to the Administrative Agent
shall be not less than three Business
Days for LIBOR Loans and the amount of the
prepayment shall be at least
$1,000,000 or any whole multiple of
$500,000 or if less, the remaining aggregate
principal balance outstanding on the Loans)
and in addition such prepayments of
LIBOR Loans shall be subject to the terms
of Section 5.04.
(b) Mandatory Prepayments.
(i) Revolving Credit Commitment Reductions. If, after giving
effect to any termination or reduction of
the Aggregate Revolving Credit
Commitments pursuant to Section 2.03(b) or
2.03(c), the outstanding aggregate
principal amount of the Revolving Credit
Loans and Swing Line Loans, plus the LC
Exposure, plus the Direct Pay Letter of
Credit Exposure exceeds the Aggregate
Revolving Credit Commitments, the Borrower
shall (i) prepay the Revolving Credit
Loans and Swing Line Loans on the date of
such termination or reduction in an
aggregate principal amount equal to the
excess, together with interest on the
principal amount paid accrued to the date
of such prepayment and (ii) if any
excess remains after prepaying all of the
Revolving Credit Loans and Swing Line
Loans because of LC Exposure and/or Direct
Pay Letter of Credit Exposure, pay to
the Administrative Agent on behalf of the
Lenders an amount equal to the excess
to be held as cash collateral as provided
in Section 2.10(b) hereof.
(ii) Upon Transfers and Issuances of Equity. The Borrower
shall,
and shall cause any Subsidiary to, pay an
amount equal to (A) 100% of the net
cash proceeds received from any Transfers
of the type referred to in Section
9.17(i), based on the greater of the net
book value of the Property sold or the
net proceeds received, provided, that, with
respect to net cash proceeds
received from a Transfer permitted under
Section 9.17(i), the Borrower is not
required to make a prepayment hereunder so
long as such proceeds have been
applied to the purchase of replacement
Property as described in Section 9.17(i)
or may be otherwise permitted pursuant to
Section 9.17(iii), (B) 50% of the
excess net cash proceeds received from any
issuance by WCA Corp. of any Debt or
by its Subsidiaries of any Subordinated
Debt to the extent that during any
fiscal year of the Borrower such net cash
proceeds exceed $30,000,000 in the
aggregate, (C) 50% of the excess net cash
proceeds received from any issuance by
WCA Corp. or its Subsidiaries of common
stock to the extent that during any
fiscal year of the Borrower such net cash
proceeds exceed $65,000,000 in the
aggregate and (D) 100% of the net cash
proceeds received from any issuance by
WCA Corp. or its Subsidiaries of equity
securities (other than common stock).
Prepayments made pursuant to this clause
(ii) shall be applied first, to the
scheduled principal installments of the
Term B Loans according to the then
unpaid amounts thereof in the inverse order
of maturity, second, to the
Revolving Credit Loans, and third, as cash
collateral or, at the Borrower's
election so long as no Default has occurred
and is continuing, effect optional
redemption of the Bonds in an amount not
less than the Direct Pay Letter of
Credit Exposure as provided in the
Reimbursement Agreement. Upon the occurrence
of any event requiring a mandatory
prepayment to the Revolving Credit Loans
pursuant to this Section 2.08(b)(ii) other
than the issuance by WCA Corp. of
equity securities in connection with an
initial public offering consummated on
or about the Closing Date, the Aggregate
Revolving
FIRST LIEN CREDIT AGREEMENT-PAGE 36
<PAGE>
Credit Commitments shall automatically
reduce by an amount equal to such net
cash proceeds received in connection with
the transactions described in clauses
(A) and (B) above. Notwithstanding the
foregoing, the Borrower may elect to
provide cash collateral in lieu of the
prepayment required pursuant to this
clause (ii) to the extent any LIBOR Loans
are outstanding until termination of
the applicable Interest Period so long as
(A) the pledge of cash collateral does
not affect the tax-exempt nature of the
Bonds or result in the Bonds being
characterized as so called "arbitrage
bonds," and (B) no Default has occurred
and is continuing.
(iii) Generally. Prepayments permitted or required under this
Section 2.08 shall be without premium or
penalty, except as required under
Section 5.04 for prepayment of LIBOR Loans.
Any prepayments on the Revolving
Credit Loans may be reborrowed subject to
the then effective Aggregate Revolving
Credit Commitments. Any prepayments on the
Term B Loans may not be reborrowed
and shall be applied to installments on the
Term B Loans in the inverse order of
maturity. Any voluntary prepayments shall
be applied to the Revolving Credit
Loans or Term B Loans as specified by
Borrower. Together with any prepayments
made hereunder, the accrued interest on the
principal amount so prepaid shall be
due and payable on the date of such
prepayment.
(iv) Transfers of Non-Core Assets. The Borrower shall, and
shall
cause any Guarantor or Subsidiary to, apply
an amount equal to 100% of the net
cash proceeds received from any Transfers
of the type referred to in Section
9.17(iv) to first, promptly prepay the Term
B Loans, second, promptly prepay the
Revolving Credit Loans and third, promptly
provide cash collateral.
Notwithstanding the foregoing, the Borrower
may elect to provide cash collateral
in lieu of the prepayment required pursuant
to this clause (iv) to the extent
any LIBOR Loans are outstanding until
termination of the applicable Interest
Period so long as no Default has occurred
and is continuing.
Section 2.09
Assumption of Risks. The Borrower assumes all risks of the
acts or omissions of any beneficiary of any
Letter of Credit or the Direct Pay
Letter of Credit or any transferee thereof
with respect to its use of such
Letter of Credit or the Direct Pay Letter
of Credit. Neither the Issuing Bank
(except in the case of gross negligence or
willful misconduct on the part of the
Issuing Bank or any of its employees), nor
any Lender shall be responsible for
the validity, sufficiency (except for the
sufficiency on their face) or
genuineness of certificates or other
documents or any endorsements thereon, even
if such certificates or other documents
should in fact prove to be invalid,
insufficient, fraudulent or forged; for
errors, omissions, interruptions or
delays in transmissions or delivery of any
messages by mail, telex, or
otherwise, whether or not they be in code;
for errors in translation or for
errors in interpretation of technical
terms; the validity or sufficiency (except
for the sufficiency on their face) of any
instrument transferring or assigning
or purporting to transfer or assign any
Letter of Credit or the Direct Pay
Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in
whole or in part, which may prove to be
invalid or ineffective for any reason;
the failure of any beneficiary or any
transferee of any Letter of Credit or the
Direct Pay Letter of Credit to comply fully
with the underlying conditions
required in order to draw upon any Letter
of Credit or the Direct Pay Letter of
Credit; or for any other consequences
arising from causes beyond the Issuing
Bank's control or the control of the
Issuing Bank's correspondents. In addition,
neither the Issuing Bank, the
Administrative Agent nor any Lender shall be
responsible for any error, neglect, or
default of any of the Issuing Bank's
correspondents; and none of the above shall
affect, impair or
FIRST LIEN CREDIT AGREEMENT-PAGE 37
<PAGE>
prevent the vesting of any of the Issuing
Bank's, the Administrative Agent's or
any Lender's rights or powers hereunder or
under the Letter of Credit Agreements
or this Agreement, all of which rights
shall be cumulative. The Issuing Bank and
its correspondents may accept certificates
or other documents that appear on
their face to comply with the terms of the
applicable Letter of Credit or the
Direct Pay Letter of Credit, without
responsibility for further investigation of
any matter contained therein regardless of
any notice or information to the
contrary. In furtherance and not in
limitation of the foregoing provisions, the
Borrower agrees that any action, inaction
or omission taken or not taken by the
Issuing Bank or by any correspondent for
the Issuing Bank in good faith in
connection with any Letter of Credit, the
Direct Pay Letter of Credit, or any
related drafts, certificates, documents or
instruments, shall be binding on the
Borrower and shall not put the Issuing Bank
or its correspondents under any
resulting liability to the Borrower in the
absence of gross negligence or
willful misconduct on the part of any such
Person.
Section 2.10
Obligation to Reimburse and to Prepay.
(a) If a disbursement by the Issuing Bank is made under any Letter
of
Credit, the Borrower shall pay to the
Administrative Agent within two Business
Days after notice of any such disbursement
is received by the Borrower, the
amount of each such disbursement made by
the Issuing Bank under the Letter of
Credit (if such payment is not sooner
effected as may be required under this
Section 2.10 or under other provisions of
the Letter of Credit), together with
interest on the amount disbursed from and
including the date of disbursement
until payment in full of such disbursed
amount at a varying rate per annum equal
to (i) the then applicable interest rate
for Base Rate Loans (but in no event to
exceed the Maximum Rate) through the second
Business Day after notice of such
disbursement is received by the Borrower
and (ii) thereafter, the Post-Default
Rate for Base Rate Loans (but in no event
to exceed the Maximum Rate) for the
period from and including the third
Business Day following the date of such
disbursement to and including the date of
repayment in full of such disbursed
amount. Subject to Section 12.11, the
obligations of the Borrower or Waste
Corporation Texas, if applicable, under
this Agreement with respect to each
Letter of Credit and the Direct Pay Letter
of Credit shall be absolute,
unconditional and irrevocable and shall be
paid or performed strictly in
accordance with the terms of this Agreement
under all circumstances whatsoever,
including, without limitation, but only to
the fullest extent permitted by
applicable law, the following
circumstances: (i) any lack of validity or
enforceability of this Agreement, any
Letter of Credit, the Direct Pay Letter of
Credit or any of the other Loan Documents;
(ii) any amendment or waiver of
(including any default), or any consent to
departure from this Agreement (except
to the extent permitted by any amendment or
waiver), any Letter of Credit, the
Direct Pay Letter of Credit or any of the
other Loan Documents; (iii) the
existence of any claim, set-off, defense or
other rights which the Borrower or
any Guarantor, if applicable, may have at
any time against the beneficiary of
any Letter of Credit or the Direct Pay
Letter of Credit or any transferee of any
Letter of Credit or the Direct Pay Letter
of Credit (or any Persons for whom any
such beneficiary or any such transferee may
be acting), the Issuing Bank, the
Administrative Agent, any Lender or any
other Person, whether in connection with
this Agreement, any Letter of Credit, the
Direct Pay Letter of Credit, the other
Loan Documents, the transactions
contemplated hereby or any unrelated
transaction; (iv) any statement,
certificate, draft, notice or any other
document presented under any Letter of
Credit or the Direct Pay Letter of Credit
proves to have been forged, fraudulent,
insufficient (so long as it is not
insufficient on its face) or invalid in any
respect or any statement therein
proves
FIRST LIEN CREDIT AGREEMENT-PAGE 38
<PAGE>
to have been untrue or inaccurate in any
respect whatsoever; (v) payment by the
Issuing Bank under any Letter of Credit or
the Direct Pay Letter of Credit
against presentation of a draft or
certificate which appears on its face to
comply, but does not comply, with the terms
of such Letter of Credit or the
Direct Pay Letter of Credit; and (vi) any
other circumstance or happening
whatsoever, whether or not similar to any
of the foregoing. Notwithstanding
anything in this Agreement to the contrary,
the Borrower will not be liable for
payment or performance that results from
the gross negligence or willful
misconduct of the Issuing Bank, except to
the extent the Borrower or any
Subsidiary actually recovers (net of costs
and expenses) any proceeds (net of
any expenses incurred for such recovery)
for itself or the Issuing Bank of any
payment made by the Issuing Bank in
connection with such gross negligence or
willful misconduct.
(b) In the event of the occurrence of any Event of Default, a
payment
or prepayment pursuant to Section 2.08(b)
or the maturity of the Loans, whether
by acceleration or otherwise, an amount
equal to the LC Exposure (or the excess
in the case of Section 2.08(b)), shall be
deemed to be forthwith due and owing
by the Borrower to the Administrative Agent
as of the date of any such
occurrence; and the Borrower's obligation
to pay such amount shall be absolute
and unconditional, without regard to
whether any beneficiary of any such Letter
of Credit has attempted to draw down all or
a portion of such amount under the
terms of a Letter of Credit, and, to the
fullest extent permitted by applicable
law, shall not be subject to any defense or
be affected by a right of set-off,
counterclaim or recoupment which the
Borrower may now or hereafter have against
any such beneficiary, the Issuing Bank, the
Administrative Agent, the Lenders or
any other Person for any reason whatsoever.
Such payments shall be held by the
Administrative Agent on behalf of the
Issuing Bank and the Lenders as cash
collateral securing the LC Exposure in an
account or accounts at the Principal
Office; and the Borrower hereby grants to
and by its deposit with the
Administrative Agent grants to the
Administrative Agent a security interest in
such cash collateral. In the event of any
such payment by the Borrower of
amounts contingently owing under
outstanding Letters of Credit and in the event
that thereafter drafts or other demands for
payment complying with the terms of
such Letters of Credit are not made prior
to the respective expiration dates
thereof, the Administrative Agent agrees,
if no Event of Default has occurred
and is continuing or if no other amounts
are outstanding under this Agreement or
the other Loan Documents, to remit to the
Borrower amounts for which the
contingent obligations evidenced by the
Letters of Credit have ceased.
(c) Each Lender with a Revolving Credit Commitment severally
and
unconditionally agrees that it shall
promptly reimburse the Issuing Bank an
amount equal to such Lender's Percentage
Share of any disbursement made by the
Issuing Bank (i) under any Letter of Credit
that is not reimbursed according to
this Section 2.10 or (ii) under the Direct
Pay Letter of Credit that is not
reimbursed according to the Reimbursement
Agreement.
(d) Notwithstanding anything to the contrary contained herein,
subject
to availability under the Swing Line
Commitment, to the extent the Borrower has
not reimbursed the Issuing Bank for any
drawn upon Letter of Credit within two
Business Days after notice of such
disbursement has been received by the
Borrower, the amount of such Letter of
Credit reimbursement obligation shall
automatically be funded by the Swing Line
Lender as a Swing Line Loan hereunder
and used by the Swing Line Lender to pay
such Letter of Credit reimbursement
obligation. To the extent the funding of
such Letter of Credit reimbursement
obligation as a Swing Line Loan would cause
the aggregate amount of all Swing
Line Loans
FIRST LIEN CREDIT AGREEMENT-PAGE 39
<PAGE>
outstanding to exceed the Swing Line
Commitment or the Swing Line Lender does
not desire to make a Swing Line Loan for
such purpose, such Letter of Credit
reimbursement obligation shall not be
funded as a Swing Line Loan, but instead
shall be funded as a Revolving Credit
Loan.
Section 2.11
Lending Offices. The Loans of each Type made by each Lender
shall be made and maintained at such
Lender's Applicable Lending Office for
Loans of such Type.
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01
Repayment of Loans.
(a) Revolving Credit Loans. On the Termination Date the Borrower
shall
repay the outstanding principal amount of
the Revolving Credit Loans.
(b) Term B Loans. Commencing on June 30, 2005 and on each
Quarterly
Date thereafter through and including June
30, 2010, the aggregate principal
amount of the Term B Loans shall be payable
in amounts equal to 1.00% per annum
of the aggregate Term B Loans outstanding
on the Effective Date (less any
amounts applied to such installments as
permitted pursuant to Sections
2.08(b)(ii), (iii) and (iv) hereof).
Commencing September 30, 2010 through and
including March 31, 2011, the aggregate
principal amount of the Term B Loans
shall be payable in installments in the
principal amount of $19,750,000 (less
any amounts applied to such installments as
permitted pursuant to Sections
2.08(b)(ii), (iii) and (iv) hereof), with
final payment of the remaining
principal balance on the Term B Loans due
on the Termination Date.
(c) Swing Line Loans. The principal amount of each advance of a
Swing
Line Loan (together with all interest
accrued thereon until the date of payment)
shall be repaid pursuant to the terms of
Section 2.01(d).
(d) Direct Pay Letter of Credit. The amount of the Direct Pay
Letter
of Credit shall be reduced as provided in
the Reimbursement Agreement.
(e) Generally. The Borrower will pay to the Administrative Agent,
for
the account of each Lender, the principal
payments required by this Section
3.01.
Section 3.02
Interest.
(a) Interest Rates. The Borrower will pay to the Administrative
Agent,
for the account of each Lender, interest on
the unpaid principal amount of each
Loan made by such Lender for the period
commencing on the date such Loan is made
to, but excluding, the date such Loan shall
be paid in full, at the following
rates per annum:
(i) if such Revolving Credit Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) plus
the Applicable Margin, but in no
event to exceed the Maximum Rate;
FIRST LIEN CREDIT AGREEMENT-PAGE 40
<PAGE>
(ii) if such Revolving Credit Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR
Rate for such Loan plus the
Applicable Margin (as in effect from time
to time), but in no event to exceed
the Maximum Rate;
(iii) if such Term B Loan is a Base Rate Loan, the Base Rate
(as
in effect from time to time), plus 2.00%,
but in no event to exceed the Maximum
Rate; and
(iv) if such Term B Loan is a LIBOR Loan, for each Interest
Period relating thereto, the LIBOR Rate for
such Loan plus 3.00%, but in no
event to exceed the Maximum Rate.
(b) Post-Default Rate. Notwithstanding the foregoing, the
Borrower
will pay to the Administrative Agent, for
the account of each Lender interest at
the applicable Post-Default Rate on any
principal of any Loan made by such
Lender, and (to the fullest extent
permitted by law) on any other amounts due
and payable or that become due and payable
by the Borrower hereunder or under
any Loan Document held by such Lender to or
for account of such Lender, for the
period commencing on the date of an Event
of Default (or the date any such other
amount becomes due and payable) until the
same is paid in full or all Events of
Default are cured or waived. If an Event of
Default under Section 10.01(a)
occurs, the operation of this Section
3.02(b) shall be automatic, but if the
only Events of Default are Events of
Default other than under Section 10.01(a),
the operation of this Section 3.02(b) shall
require the election of the Required
First Lien Lenders to accrue interest at
the Post-Default Rate.
(c) Due Dates. Accrued interest on Base Rate Loans shall be
payable
monthly on the first day of each month
commencing on January 1, 2005, and
accrued interest on each LIBOR Loan shall
be payable on the last day of the
Interest Period therefor and, if such
Interest Period is longer than three
months at three-month intervals following
the first day of such Interest Period,
except that interest payable at the
Post-Default Rate shall be payable from time
to time on demand and interest on any LIBOR
Loan that is converted into a Base
Rate Loan (pursuant to Section 5.04) shall
be payable on the date of conversion
(but only to the extent so converted). Any
accrued and unpaid interest on the
Revolving Credit Loans on the Termination
Date shall be paid on such date.
Accrued interest on Swing Line Loans shall
be paid pursuant to Section 3.01(c).
Any accrued and unpaid interest on the Term
B Loans on the Termination Date
shall be paid on such date.
(d) Determination of Rates. Promptly after the determination of
any
interest rate provided for herein or any
change therein, the Administrative
Agent shall notify the Lenders to which
such interest is payable and the
Borrower thereof. Each determination by the
Administrative Agent of an interest
rate or fee hereunder shall, except in
cases of manifest error, be final,
conclusive and binding on the parties.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01
Payments. Except to the extent otherwise provided herein, all
payments of principal, interest and other
amounts to be made by the Borrower or
Waste Corporation Texas, if
FIRST LIEN CREDIT AGREEMENT-PAGE 41
<PAGE>
applicable, under this Agreement, the
Direct Pay Letter of Credit and the Letter
of Credit Agreements shall be made in
Dollars, in immediately available funds,
to the Administrative Agent at such account
as the Administrative Agent shall
specify by notice to the Borrower from time
to time, not later than 11:00 a.m.
(Central time) on the date on which such
payments shall become due (each such
payment made after such time on such due
date to be deemed to have been made on
the next succeeding Business Day). Such
payments shall be made without (to the
fullest extent permitted by applic
