Exhibit 10.21
AMENDMENT AND
CONSENT
This AMENDMENT AND CONSENT
(this “ Amendment ”) dated as of May 11,
2005, is among (a) WASTE INDUSTRIES USA, INC. (f/k/a Waste
Holdings, Inc.), a North Carolina corporation having its principal
place of business at 3301 Benson Drive, Suite 601, Raleigh, North
Carolina 27609 (the “ Company ”), and
each of the subsidiaries of the Company that has executed a
Guaranty Agreement (as defined in each of the Note Agreements
defined below) (the “ Guarantors ”) and
(b) THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (“
Prudential ”), PRUCO LIFE INSURANCE COMPANY,
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY, U.S. PRIVATE PLACEMENT
FUND and any other noteholders who are or may become parties to the
Note Agreements (as defined below) (collectively, the “
Noteholders ”).
WHEREAS, the Company and Prudential are parties to the
Amended and Restated Note Purchase Agreement, dated as of March 31,
2001 (as amended, restated or otherwise modified through the date
hereof, the “ Purchase Agreement ”), and
the Company and the Noteholders are parties to the Amended and
Restated Note Purchase and Private Shelf Agreement, dated as of
March 31, 2001 (as amended, restated or otherwise modified through
the date hereof, the “ Shelf Agreement ”
and, together with the Purchase Agreement, the “ Note
Agreements ”);
WHEREAS, the Guarantors have entered into the Guaranty
Agreements in connection with the Note Agreements; and
WHEREAS , the Company and the Guarantors have requested
that the Noteholders agree, and the Noteholders have agreed, on the
terms and subject to the conditions set forth herein, to modify,
among other things, the negative covenants under the Note
Agreements described below;
NOW, THEREFORE
, in consideration of the foregoing
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms .
Capitalized terms that are used herein without definition and that
are defined in the Note Agreements shall have the same meanings
herein as in the Note Agreements.
2. Amendments to Note
Agreements .
2A. Paragraph 5A(3) of the
Note Agreements.
(i) Paragraph 5A(3) of the Note
Agreements is amended by deleting it in its entirety and
substituting the word “Reserved” in lieu
thereof.
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2B. Paragraph 6A of the Note
Agreements.
(i) Subparagraph (f) of Paragraph 6A
of the Note Agreements is hereby amended to read in its entirety as
follows:
“(f). Capital
Expenditures . Capital Expenditures for any fiscal year
shall not exceed (i) $42,000,000 for the fiscal year 2005, and (ii)
$43,000,000 for the fiscal year 2006 and
thereafter.”
2C. Paragraph 6G of the Note
Agreements.
(i) Paragraph 6G of the Note
Agreements is hereby amended to read in its entirety as
follows:
“6G. Restricted
Distributions and. Redemptions. Neither the Company nor any
of its Subsidiaries shall redeem, convert, retire or otherwise
acquire shares of any class of its capital stock or other equity
interest, or make any Distributions, except that (i) the Company or
any Subsidiary may make Distributions to the Company or another
Subsidiary of the Company and (ii) so long as no Default or Event
of Default then exists or would result from such payment, the
Company or any Subsidiary may make cash dividend payments in an
amount not to exceed $3,500,000 in any fiscal year. In addition,
neither the Company nor any of its Subsidiaries shall effect or
permit any change in or amendment to any document or instrument
pertaining to the terms of the Company’s or any of its
Subsidiaries’ capital stock or other equity interest.
Notwithstanding the foregoing, neither the Company nor any of its
Subsidiaries shall make any Distribution under this paragraph 6G if
a Default or Event of Default exists or would be created by the
making of such Distribution.”
2D. Schedule 8A of the Note
Agreements.
(i) Schedule 8A of the Note
Agreements are hereby amended by replacing Schedule 8A of each Note
Agreement in its entirety with Schedule 8A attached to this
Amendment.
3. Consent .
Notwithstanding the provisions of paragraph 6H of each of the Note
Agreements that prohibit the amendment of any negative covenant,
financial covenant or event of default relating to the Bank Debt,
each of the undersigned consents to the amendments to the Bank
Agreement as effectuated by the amendment of the Bank Agreement on
the date hereof as delivered to the Noteholders under Section
5(a)(iii) hereof.
4. Affirmation and
Acknowledgment . The Company and each of the Guarantors
hereby ratifies and confirms all of its obligations to the
Noteholders as evidenced by the Note Agreements and the Related
Documents, including, without limitation, the Notes, and the
Company and each of the Guarantors hereby affirms its absolute and
unconditional promise to pay to the Noteholders all obligations
under the Note Agreements and the Related Documents. The Company
and each of the Guarantors hereby confirms that the Obligations (as
defined in the Security Agreement) are and remain secured pursuant
to the Security Documents and pursuant to all other instruments and
documents executed and delivered by the Company and the Guarantors
as security for the Obligations.
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5. Conditions of
Effectiveness . This Amendment shall become effective when,
and only when (the “ Effective Date
”):
(a) The Noteholders shall have
received executed originals of this Amendment in form and substance
satisfactory to the Required Holders in all respects;
(b) The Noteholders shall have
received executed originals of the Amendment to Bank Agreement, in
form and substance satisfactory to the Required Holders in all
respects;
(c) The Company shall have paid to
the Noteholders an amendment fee equal to 0.02% of the outstanding
Notes, which percentage the Company represents and warrants to the
Noteholders is not less than the highest percentage all-in fee
(including arrangement fees, upfront and other fees) paid to any
party to the Bank Agreement, based on their commitments thereunder,
in connection with the Amendment to Bank Agreement.
6. Representations and
Warranties.
(a) Except as disclosed in the
updated disclosure schedules attached hereto and incorporated
herein, the Company hereby repeats and confirms each of the
representations and warranties made by it in each of the Note
Agreements, as amended hereby, as though made on and as of the date
hereof, except to the extent such representations and warranties by
their terms are made solely as of a prior date, with each reference
therein to “this Agreement”, “hereof”,
“hereunder”, “thereof”,
“thereunder” and words of like import being deemed to
be a reference to the Note Agreements as amended hereby.
(b) The Company and each Guarantor
further represents and warrants as follows:
(i) The execution, delivery and
performance by the Company and each Guarantor of this Amendment are
within its corporate or company powers, have been duly authorized
by all necessary corporate or company action and do not contravene
(A) its charter o
