Exhibit 10.24
COMMITMENT INCREASE AGREEMENT
This Commitment Increase Agreement
(this “Agreement”), dated as of September 16,
2005, is by and among Waste Industries USA, Inc., a North Carolina
corporation (the “ Parent ”), its Subsidiaries
(collectively with the Parent, the “ Borrowers
”), Bank of America, N.A. (the “Increasing Bank”)
and Bank of America, N.A. (successor by merger to Fleet National
Bank) as Administrative Agent (the “ Administrative
Agent ”), for the Banks (as hereinafter defined). All
capitalized terms used herein without definitions shall have the
meanings given such terms in the Credit Agreement (as hereinafter
defined).
WHEREAS, the Amended and Restated Revolving Credit
Agreement, dated as of August 27, 2003 (as amended and in
effect from time to time, the “ Credit
Agreement ”), is by and among the Borrowers, the
Administrative Agent and the banks or other financial institutions
which are or become a party thereto (each a “ Bank
” and, collectively, the “ Banks ”),
Wachovia Bank, N.A., as Syndication Agent for the Banks and Branch
Banking and Trust Company, as Documentation Agent for the
Banks;
WHEREAS, Section 2.2.2 of the Credit Agreement
provides that the Borrowers may request, subject to the approval of
the Administrative Agent, that the Total Commitment be increased to
$200,000,000;
WHEREAS, the Borrowers have requested that the Total
Commitment be increased to $200,000,000 and the Increasing Bank has
agreed to increase its Commitment by $25,000,000 (the
“Commitment Increase”); and
WHEREAS, the Administrative Agent is willing to consent
to the Commitment Increase provided that the Borrowers, the
Administrative Agent and the Increasing Bank enter into this
Agreement;
NOW THEREFORE,
the parties hereto hereby agree as
follows:
1. Consent to Commitment
Increase . Pursuant to Section 2.2.2 of the
Credit Agreement, the Administrative Agent hereby consents to the
increase in the Total Commitment to $200,000,000.
2. Funding of Commitment
Increase . Pursuant
to Section 2.2.2 of the Credit Agreement, the Increasing Bank
hereby agrees to fund the Commitment Increase.
3. Amendment of Schedule 1
. Schedule
1 to the Credit Agreement is hereby amended to reflect the
Banks’ adjusted Commitment Percentages and the increase in
the Total Commitment. The Administrative Agent shall make such
arrangements with the Banks as shall be necessary to provide that
each Bank shall hold its Commitment Percentage of outstanding Loans
after giving effect to this Agreement, with any breakage costs to
be borne by the Borrowers.
4. Affirmation and
Acknowledgment . The
Borrowers hereby ratify and confirm all of their Obligations to the
Banks, including, without limitation, the Revolving Credit Loans,
the Notes and the other Loan Documents, and the Borrowers hereby
affirm their absolute and unconditional promise to pay to the Banks
all Obligations under the Credit Agreement, the Swap Contracts and
Fuel Derivative Obligations. The Borrowers hereby confirm that the
Obligations are and remain secured pursuant to the Security
Documents and pursuant to all other instruments and documents
executed and delivered by the Borrowers as security for the
Obligations.
5. Representations
and Warranties . Each of the Borrowers hereby represents and
warrants to the Banks as follows:
(a) The execution and delivery by
each Borrower of this Agreement, and the performance by each
Borrower of its obligations and agreements under this Agreement and
the Credit Agreement, are within the corporate authority of each
Borrower and, have been duly authorized by all necessary corporate
proceedings on behalf of each Borrower, and do not and will not
contravene any provision of law, statute, rule or regulation to
which any Borrower is subject or any Borrower’s charter,
other incorporation papers, by-laws or any stock provision or any
amendment thereof or of any agreement or other instrument binding
upon any Borrower.
(b)
