EIGHTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 16, 2006
This EIGHTH AMENDMENT TO THE
AMENDED AND RESTATED CREDIT AGREEMENT (together with all
Exhibits, Schedules and Annexes hereto, this “
Amendment ”) is among WASTE SERVICES (CA) INC.
, an Ontario corporation formerly known as CAPITAL ENVIRONMENTAL
RESOURCE INC./RESSOURCES ENVIRONNEMENTALES CAPITAL INC.
(“ WSCI ”), WASTE SERVICES, INC. , a
Delaware corporation (the “ Borrower ”), and
LEHMAN COMMERCIAL PAPER INC. , as administrative agent for
the Lenders (in such capacity, the “ Administrative
Agent ”).
PRELIMINARY STATEMENTS:
A. The Borrower, WSCI, the
Lenders, the Administrative Agent, Lehman Brothers Inc., as
Arranger, CIBC World Markets Corp., as Syndication Agent, Bank of
America, N.A., as Documentation Agent, and Canadian Imperial Bank
of Commerce, as Canadian Agent, entered into an Amended and
Restated Credit Agreement, dated as of April 30, 2004 (as
amended, restated, modified or supplemented prior to the date
hereof, and together with all Annexes, Exhibits and Schedules
thereto, the “ Credit Agreement ”; capitalized
terms used and not otherwise defined herein shall have the meanings
ascribed to such terms in the Credit Agreement).
B. The Borrower and WSCI have
advised the Administrative Agent and the Lenders that they desire
to amend the Credit Agreement to permit the Allied Waste Asset Swap
(as defined herein) and allow for the add-back of certain legal
expenses to Consolidated EBITDA as more specifically set forth
herein and each of the Administrative Agent and the Required
Lenders are, on the terms and conditions stated below, willing to
grant such request.
NOW, THEREFORE , in
consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment Upon the terms and subject to the
conditions set forth herein and in reliance on the representations
and warranties of the Loan Parties set forth herein, the Credit
Agreement is hereby amended as follows:
(a) The
following new definitions are hereby added to Section 1.1 of
the Credit Agreement in the appropriate alphabetical order:
‘“ Allied Waste Asset
Swap ”: the substantially simultaneous consummation of
the acquisition by the Borrower of certain south Florida operations
of Allied Waste Industries, Inc., substantially on the terms set
forth in that certain Asset Purchase Agreement, dated as of
July 19, 2006, between Waste Services, Inc. and Allied
Waste Industries, Inc. for $61,000,000 in cash (with a potential
future payment of $2,000,000) and the sale by the Borrower of its
Arizona operations to Allied Waste Industries, Inc., substantially
on the terms set forth in that certain Asset Purchase Agreement
dated as of July 19, 2006, between Waste Services, Inc. and
Allied Waste Industries, Inc. for $53,000,000 in cash.”
(b) The
definition of “Consolidated EBITDA” set forth in
Section 1.1 of the Credit Agreement is hereby amended to
(i) replace the “and” immediately preceding clause
(k) with a “,” and (ii) add the following
clause immediately following the end of clause (k): “and
(l) one-time charges and expenses incurred after June 30,
2006 and prior to March 31 2007, not to exceed $6,000,000, in
respect of fees and expenses incurred in connection with litigation
involving Waste Management, Inc.”.
(c) Section 7.5
of the Credit Agreement is hereby amended to (i) delete the
word “and” at the end of clause (g),
(ii) re-letter clause (h) as clause (i) and
(iii) add the following new clause (h): “(h) Allied
Waste Asset Swap; and”.
2. Conditions to Effectiveness.
The effectiveness of the amendments
contained in Section 1 hereof is conditioned upon satisfaction
of the following conditions precedent (the date on which all such
conditions have been satisfied being referred to herein as the
“ Amendment Effective Date ”):
(a) the
Administrative Agent shall have (i) executed this amendment
and shall have received signed, written authorization from the
Required Lenders to execute this Amendment on behalf of each such
Lender, (ii) received counterparts of this Amendment signed by
each of WSCI and the Borrower, and (iii) received counterparts
of the consent of the Guarantors attached hereto as Annex 1 (the
“ Consent ”) executed by each of the
Guarantors;
(b) each
of the representations and warranties in Section 3 below shall
be true and correct in all material respects on and as of the
Amendment Effective Date;
(c) the
Administrative Agent shall have received payment in immediately
available funds of all expenses incurred by the Administrative
Agent (including, without limitation, legal fees) reimbursable
under the Credit Agreement and for which invoices have been
presented; and
(d) the
Administrative Agent shall have received such other documents,
instruments, certificates, opinions and approvals as it may
reasonably request.
3. Representations and Warranties Each of WSCI
and the Borrower represent and warrants jointly and severally to
the Administrative Agent and the Lenders as follows:
(a)
Authority . Each of WSCI and the Borrower has the requisite
corporate or other organizational power and authority to execute
and deliver this Amendment and to perform
2
its
obligations hereunder and under the Credit Agreement (as amended
hereby). Each of the Guarantors has the requisite corporate or
other organizational power and authority to execute and deliver the
Consent. The execution, delivery and performance by each of WSCI
and the Borrower of this Amendment and by the Guarantors of the
Consent, and the performance by each of WSCI, the Borrower and each
other Loan Party of the Credit Agreement (as amended hereby) and
each other Loan Document to which it is a party, in each case, have
been authorized by all necessary corporate or other organizational
action of such Person, and no other corp
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