AMENDMENT NO. 2
to the
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Amendment No. 2 (this "Amendment"), dated as of October 19, 2005, by and amongWASTE CONNECTIONS, INC., a Delaware corporation (the "Parent"), the subsidiaries of the Parent set forth on the signature pages hereto (collectively with the Parent, the "Borrowers"),BANK OF AMERICA N.A., a national banking association having a place of business at 100 Federal Street, Boston, Massachusetts 02110 and the other banks and lending institutions (collectively, the "Lenders") set forth on the signature pages hereto, andBANK OF AMERICA N.A., as administrative agent for the Lenders (the "Administrative Agent").
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to that certain Amended and Restated Revolving Credit and Term Loan Agreement, dated as of November 17, 2004 (as amended and in effect from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that the Administrative Agent and the Required Lenders agree, and the Administrative Agent and the Required Lenders have agreed, on the terms and subject to the conditions set forth herein, to amend certain of the terms and provisions of the Credit Agreement.
NOW THEREFORE, the parties hereto hereby agree as follows:
1.Defined Terms.Capitalized terms which are used herein without definition and which are defined in the Credit Agreement shall have the same meanings herein as in the Credit Agreement.
2.Amendment to 1.1 of the Credit Agreement:
(a) The definition of "CapitalStock" appearing in 1.1 is amended by inserting the clause "but excluding any debt security that is convertible into or exchangeable in whole or in part for Capital Stock prior to such conversion."
(b) The definition ofPermittedDebtOfferingMaturityEvent is deleted and the following definition is inserted in its place: "PermittedDebtOfferingMaturityEvent" the date on which the aggregate amount of principal payments, principal returns, and/or redemptions in respect of a Permitted Debt Offering shall exceed $50,000,000 unless such event is waived or postponed in writing by the Required Lenders.
3.Amendment to 8.6 of the Credit Agreement.Section 8.6 of the Credit Agreement is hereby deleted in its entirety and the following new 8.6 is inserted in its place:
" 8.6Restricted Payments and Redemptions. The Borrowers shall not redeem, convert, retire or otherwise acquire shares of any class of its Capital Stock, or make any Restricted Payments, except that (a) the Borrowers may make Distributions to another Borrower, (b) the Parent may make Distributions and/or purchase shares of its Capital Stock in an annual aggregate amount not to exceed $75,000,000plus one hundred percent (100%) of the cash proceeds received by the Parent from the exercise of stock options after January 1, 2003, (c) the Parent may, in addition to its rights granted pursuant to clause (b) above, purchase shares of its Capital Stock in an aggregate amount not to exceed $100,000,000, and (d) the Parent may, in addition to its rights granted pursuant to clauses (b) and (c) above, purchase shares of its Capital Stock in an amount not to exceed fifty percent (50%) of the Net Financing Proceeds from a Permitted Debt Offering which is in the form of convertible notes,provided that an amount equal to fifty percent (50%) of the Net Financing Proceeds from such Permitted Debt Offering is simultaneously appliedpro ratato reduce outstanding Loans hereunder. Any Term Loan Lender may decline to accept any payments due to such Term Loan Lender pursuant to clause (d) above in which case such declined payments shall be used to repay the Revolving Credit Loans (but not reduce the Total Revolving Credit Commitment) on apro rata basis in accordance with each Revolving Credit Lender's Commitment Percentage. In addition, the Borrowers shall not effect or permit any change in or amendment to any document or instrument pertaining to the terms of any Borrower's (other than the Parent's) Capital Stock. Notwithstanding the foregoing, no Borrower shall make any Distribution and/or purchase any of its Capital Stock under this 8.6 if (i) a Default or Event of Default exists or would be created by the making of such Distribution or by the purchase of such Capital Stock, as the case may be, or (ii) with respect to Distributions and/or purchases of its Capital Stock made under clauses (b) through (d) above, the Leverage Ratio taking into account such Distribution and/or such purchase would exceed 3.75 to 1.00."
4.Amendment to 8.11(iv) of the Credit Agreement. Subsection 8.11(iv) of the Credit Agreement is hereby amended by inserting the following clause in the third line of such subsection "and make principal payments, principal returns and/or redemptions of the Convertible Subordinated Notes, in each case," immediately before "with proceeds of Subordinated Debt".
5.Representations and Warranties.Each of the Borrowers hereby represents and warrants to the Lenders as follows:
(a) The representations and warranties contained in 6 of the Credit Agreement are true and correct at and as of the date made and as of the date hereof, except to the extent of changes resulting from transactions contemplated or permitted by the Credit Agreement and the other Loan Documents and changes occurring in the ordinary course of business that singly or in the aggregate are not materially adverse, or to the extent that such representations and warranties relate expressly to an earlier date.
(b) As of the date hereof, after giving effect to the provisions hereof, there exists no Event of Default or Default.
6.Effectiveness.This Amendment shall be effective upon the execution and delivery of this Amendment signed by each Borrower, the Administrative Agent and the Required Lenders.
7.Miscellaneous.This Amendment may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument. In making proof of this Amendment it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought. Delivery by facsimile by any of the parties hereto of an executed counterpart of this Amendment shall be as effective as an original executed counterpart hereof and shall be considered a representation that an original executed counterpart hereof will be delivered.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
THE BORROWERS:
WASTE CONNECTIONS, INC.
AMERICAN DISPOSAL COMPANY, INC.
AMERICAN SANITARY SERVICE, INC.
ARROW SANITARY SERVICE, INC.
BITUMINOUS RESOURCES, INC.
BUTLER COUNTY LANDFILL, INC.
CAMINO REAL ENVIRONMENTAL CENTER, INC.
COLD CANYON LAND FILL, INC.
COMMUNITY REFUSE DISPOSAL INC.
CONTRACTORS WASTE SERVICES, INC.
CORRAL DE PIEDRA LAND COMPANY
CURRY TRANSFER & RECYCLING, INC.
D. M. DISPOSAL CO., INC.
DENVER REGIONAL LANDFILL, INC.
EMPIRE DISPOSAL, INC.
ENVIRONMENTAL TRUST COMPANY
ENVIRONMENTAL WASTE SYSTEMS, INC.
FINNEY COUNTY LANDFILL, INC.
G & P DEVELOPMENT, INC.
ISLAND DISPOSAL, INC.
J BAR J LAND, INC.
LEALCO, INC.
LES' COUNTY SANITARY, INC.
MADERA DISPOSAL SYSTEMS, INC.
MAMMOTH DISPOSAL COMPANY
MANAGEMENT ENVIRONMENTAL NATIONAL, INC.
MASON COUNTY GARBAGE CO., INC.
MILLENNIUM WASTE INCORPORATED
MISSION COUNTRY DISPOSAL
MORRO BAY GARBAGE SERVICE
MURREY'S DISPOSAL COMPANY, INC.
NEBRASKA ECOLOGY SYSTEMS, INC.
NOBLES COUNTY LANDFILL, INC.
NORTHERN PLAINS DISPOSAL, INC.
By:
Worthing F. Jackman
Chief Financial Officer
NORTHWEST CONTAINER SERVICES, INC.
OKLAHOMA CITY WASTE DISPOSAL, INC.
OKLAHOMA LANDFILL HOLDINGS, INC.
OSAGE LANDFILL, INC.
PSI ENVIRONMENTAL SERVICES, INC.
PSI ENVIRONMENTAL SYSTEMS, INC.
RED CARPET LANDFILL, INC.
RH FINANCIAL CORPORATION
RHINO SOLID WASTE, INC.
RURAL WASTE MANAGEMENT, INC.
SAN LUIS GARBAGE COMPANY
SCOTT SOLID WASTE DISPOSAL COMPANY
SEDALIA LAND COMPANY
SOUTH COUNTY SANITARY SERVICE, INC.
SOUTHERN PLAINS DISPOSAL, INC.
TACOMA RECYCLING COMPANY, INC.
TENNESSEE WASTE MOVERS, INC.
WASCO COUNTY LANDFILL, INC.
WASTE CONNECTIONS MANAGEMENT SERVICES, INC.
WASTE CONNECTIONS OF ALABAMA, INC.
WASTE CONNECTIONS OF ARIZONA, INC.
WASTE CONNECTIONS OF ARKANSAS, INC.
WASTE CONNECTIONS OF CALIFORNIA, INC. (f/k/a Amador Disposal Service, Inc.)
WASTE CONNECTIONS OF COLORADO, INC.
WASTE CONNECTIONS OF IDAHO, INC. (F/K/A MOUNTAIN JACK ENVIRONMENTAL SERVICES, INC.)
WASTE CONNECTIONS OF ILLINOIS, INC.
WASTE CONNECTIONS OF IOWA, INC. (f/k/a Whaley Waste Systems Inc.)
WASTE CONNECTIONS OF KANSAS, INC.
WASTE CONNECTIONS OF KENTUCKY, INC.
WASTE CONNECTIONS OF MINNESOTA, INC. (f/k/a Ritter's Sanitary Service, Inc.)
WASTE CONNECTIONS OF MISSISSIPPI, INC. (f/k/a Liberty Waste Services of Mississippi Holdings, Inc.)
WASTE CONNECTIONS OF MISSOURI, INC.
WASTE CONNECTIONS OF MONTANA, INC.
WASTE CONNECTIONS OF NEBRASKA, INC.
WASTE CONNECTIONS OF NEW MEXICO, INC.
By:
Worthing F. Jackman
Chief Financial Officer
WASTE CONNECTIONS OF OKLAHOMA, INC. (f/k/a B & B Sanitation, Inc.)
WASTE CONNECTIONS OF OREGON, INC. (f/k/a Sweet Home Sanitation Service, Inc.)
WASTE CONNECTIONS OF SOUTH DAKOTA, INC.(f/k/a Novak Enterprises, Inc.)
WASTE CONNECTIONS OF TENNESSEE, INC. (fka Liberty Waste Services of Tennessee Holdings, Inc.)
WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC. (f/k/a/ Kingsburg Disposal Service, inc.)
WASTE CONNECTIONS OF UTAH, INC.
WASTE CONNECTIONS OF WASHINGTON, INC.
WASTE CONNECTIONS OF WYOMING, INC.
WASTE CONNECTIONS TRANSPORTATION COMPANY, INC.
WASTE SERVICES OF N.E. MISSISSIPPI, INC.
WCI OF GEORGIA, INC.
WEST BANK ENVIRONMENTAL SERVICES, INC.
WEST COAST RECYCLING AND TRANSFER, INC.
WYOMING ENVIRONMENTAL SERVICES, INC.
WYOMING ENVIRONMENTAL SYSTEMS, INC.
By:
Worthing F. Jackman
Chief Financial Officer
COLUMBIA RESOURCE CO., L.P.
FINLEY-BUTTES LIMITED PARTNERSHIP
By: Management Environmental National, Inc.,
its General Partner
By: _________________________
Worthing F. Jackman
Chief Financial Officer
EL PASO DISPOSAL, LP
By: Waste Connections of Texas, LLC,
its General Partner
By: Waste Connections Management Services, Inc.,
its Manager
By: _________________________
Worthing F. Jackman
Chief Financial Officer
SANTEK ENVIRONMENTAL OF MISSISSIPPI, L.L.C.
WASTE SERVICES OF MISSISSIPPI, LLC
By: Waste Connections, Inc.,
its Managing Member
By: _________________________
Worthing F. Jackman
Chief Financial Officer
WASTE CONNECTIONS OF TEXAS, LLC
By: Waste Connections Management Services, Inc.,
its Manager
By: _________________________
Worthing F. Jackman
Chief Financial Officer
RAILROAD AVENUE DISPOSAL, LLC
SCOTT WASTE SERVICES, LLC
By: Waste Connections, Inc.
Its Manager
By: _________________________
Worthing F. Jackman
Chief Financial Officer
WASTE SOLUTIONS GROUP OF SAN BENITO, LLC
By: Waste Connections, Inc.,
its Manager
By:
Worthing F. Jackman
Chief Financial Officer
BANK OF AMERICA, N.A,
as Administrative Agent
By:___________________________________
Maria F. Maia
Managing Director
BANK OF AMERICA, N.A,
as Lender
By:___________________________________
Maria F. Maia
Managing Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
individually and as Syndication Agent
By:______________________________________
Name:
Title:
WELLS FARGO BANK, N.A.
By:______________________________________
Name:
Title:
Calyon NEW YORK BRANCH
By:______________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:______________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
JPMORGAN CHASE
By:______________________________________
Name:
Title:
GUARANTY BANK
By:______________________________________
Name:
Title:
FIRST BANK D/B/A fIRST BANK & TRUST
By:______________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
COMMERZBANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
CITICORP North America, Inc.
By:______________________________________
Name:
Title:
BANK OF THE WEST
By:______________________________________
Name:
Title:
PEOPLE'S BANK
By:______________________________________
Name:
Title:
BANK OF SCOTLAND
By:______________________________________
Name:
Title:
