as US Borrower,
as Canadian Borrower
from Time to Time Party Hereto,
and BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Lead Bookrunners,
as Syndication Agent,
SUNTRUST BANK
and THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents,
as Canadian Agent and Canadian Collateral Agent,
as Administrative Agent
Page | ||||
SECTION 1. DEFINITIONS | 1 | |||
1.1 Defined Terms | 1 | |||
1.2 Other Definitional Provisions | 31 | |||
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS | 31 | |||
2.1 Term Loan Commitments | 31 | |||
2.2 Procedure for Borrowing of Term Loans | 31 | |||
2.3 Repayment of Term Loans | 32 | |||
2.4 Revolving Credit Commitments | 33 | |||
2.5 Procedure for Revolving Credit Borrowing | 34 | |||
2.6 Swing Line Commitments | 35 | |||
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans | 36 | |||
2.8 Bankers’ Acceptances | 38 | |||
2.9 Repayment of Loans; Evidence of Debt | 41 | |||
2.10 Commitment Fees, etc. | 42 | |||
2.11 Termination or Reduction of Revolving Credit Commitments | 42 | |||
2.12 Optional Prepayments | 43 | |||
2.13 Mandatory Prepayments and Commitment Reductions | 43 | |||
2.14 Conversion and Continuation Options | 45 | |||
2.15 Minimum Amounts and Maximum Number of Eurodollar Tranches; Bankers’ Acceptances | 46 | |||
2.16 Interest Rates and Payment Dates | 46 | |||
2.17 Computation of Interest and Fees | 48 | |||
2.18 Inability to Determine Interest Rate | 48 | |||
2.19 Pro Rata Treatment and Payments | 50 | |||
2.20 Requirements of Law | 52 | |||
2.21 Taxes | 53 | |||
2.22 Indemnity | 56 | |||
2.23 Illegality | 56 | |||
2.24 Change of Lending Office | 57 | |||
2.25 Replacement of Lenders under Certain Circumstances | 57 | |||
2.26 Incremental Term Loan Facilities | 57 | |||
SECTION 3. LETTERS OF CREDIT | 59 | |||
3.1 L/C Commitment | 59 | |||
3.2 Procedure for Issuance of Letter of Credit | 60 | |||
3.3 Fees and Other Charges | 61 | |||
3.4 L/C Participations | 61 | |||
3.5 Reimbursement Obligation of the Borrowers | 63 | |||
3.6 Obligations Absolute | 63 |
i
Page | ||||
3.7 Letter of Credit Payments | 64 | |||
3.8 Applications | 64 | |||
SECTION 4. REPRESENTATIONS AND WARRANTIES | 64 | |||
4.1 Financial Condition | 64 | |||
4.2 No Change | 65 | |||
4.3 Corporate Existence; Compliance with Law | 65 | |||
4.4 Corporate Power; Authorization; Enforceable Obligations | 65 | |||
4.5 No Legal Bar | 66 | |||
4.6 No Material Litigation | 66 | |||
4.7 No Default | 66 | |||
4.8 Ownership of Property; Liens | 66 | |||
4.9 Intellectual Property | 66 | |||
4.10 Taxes | 67 | |||
4.11 Federal Regulations | 67 | |||
4.12 Labor Matters | 67 | |||
4.13 Pensions and Benefit Plans | 67 | |||
4.14 Investment Company Act; Other Regulations | 68 | |||
4.15 Subsidiaries | 68 | |||
4.16 Use of Proceeds | 69 | |||
4.17 Environmental Matters | 69 | |||
4.18 Accuracy of Information, etc. | 70 | |||
4.19 Security Documents | 70 | |||
4.20 Solvency | 71 | |||
4.21 Senior Indebtedness | 71 | |||
4.22 Regulation H | 71 | |||
4.23 Insurance | 72 | |||
4.24 Real Estate | 72 | |||
SECTION 5. CONDITIONS PRECEDENT | 72 | |||
5.1 Conditions to Initial Extension of Credit | 72 | |||
5.2 Conditions to Each Extension of Credit | 78 | |||
SECTION 6. AFFIRMATIVE COVENANTS | 78 | |||
6.1 Financial Statements | 79 | |||
6.2 Certificates; Other Information | 79 | |||
6.3 Payment of Obligations | 81 | |||
6.4 Conduct of Business and Maintenance of Existence, etc. | 81 | |||
6.5 Maintenance of Property; Insurance | 82 | |||
6.6 Inspection of Property; Books and Records; Discussions | 82 | |||
6.7 Notices | 82 | |||
6.8 Environmental Laws | 83 | |||
6.9 Interest Rate Protection | 83 | |||
6.10 Additional Collateral, etc. | 83 |
ii
Page | ||||
6.11 Use of Proceeds | 86 | |||
6.12 Pension and Benefits Plans | 86 | |||
6.13 Further Assurances | 88 | |||
6.14 Maintenance of Ratings | 88 | |||
6.15 Quebec Subsidiary | 88 | |||
6.16 Post Closing Obligations | 88 | |||
SECTION 7. NEGATIVE COVENANTS | 89 | |||
7.1 Financial Condition Covenants | 89 | |||
7.2 Limitation on Indebtedness | 90 | |||
7.3 Limitation on Liens | 92 | |||
7.4 Limitation on Fundamental Changes | 93 | |||
7.5 Limitation on Disposition of Property | 94 | |||
7.6 Limitation on Restricted Payments | 94 | |||
7.7 Limitation on Capital Expenditures | 95 | |||
7.8 Limitation on Investments | 95 | |||
7.9 Limitation on Optional Payments and Modifications of Debt Instruments and Other Agreements | 97 | |||
7.10 Limitation on Transactions with Affiliates | 98 | |||
7.11 Limitation on Sales and Leasebacks | 98 | |||
7.12 Limitation on Changes in Fiscal Periods | 98 | |||
7.13 Limitation on Negative Pledge Clauses | 98 | |||
7.14 Limitation on Restrictions on Subsidiary Distributions | 98 | |||
7.15 Limitation on Lines of Business | 99 | |||
7.16 Limitation on Hedge Agreements | 99 | |||
7.17 Limitation on Performance Bonds | 99 | |||
SECTION 8. EVENTS OF DEFAULT | 99 | |||
SECTION 9. THE AGENTS; THE ARRANGERS | 103 | |||
9.1 Appointment | 103 | |||
9.2 Delegation of Duties | 104 | |||
9.3 Exculpatory Provisions | 104 | |||
9.4 Reliance by Agents | 104 | |||
9.5 Notice of Default | 105 | |||
9.6 Non-Reliance on the Arrangers, the Agents and Other Lenders | 105 | |||
9.7 Indemnification | 106 | |||
9.8 Arrangers and Agents in their Individual Capacities | 106 | |||
9.9 Successor Agents | 106 | |||
9.10 Authorization to Release Liens and Guarantees | 107 | |||
9.11 The Arrangers; the Syndication Agent; the Co-Documentation Agents | 107 | |||
9.12 Withholding Tax | 107 |
iii
Page | ||||
SECTION 10. MISCELLANEOUS | 108 | |||
10.1 Amendments and Waivers | 108 | |||
10.2 Notices | 111 | |||
10.3 No Waiver; Cumulative Remedies | 112 | |||
10.4 Survival of Representations and Warranties | 112 | |||
10.5 Payment of Expenses | 112 | |||
10.6 Successors and Assigns; Participations and Assignments | 113 | |||
10.7 Adjustments; Set-off | 117 | |||
10.8 Counterparts | 118 | |||
10.9 Severability | 118 | |||
10.10 Integration | 118 | |||
10.11 GOVERNING LAW | 118 | |||
10.12 Submission To Jurisdiction; Waivers | 118 | |||
10.13 Acknowledgments | 119 | |||
10.14 Confidentiality | 119 | |||
10.15 Release of Collateral and Guarantee Obligations | 120 | |||
10.16 Accounting Changes | 121 | |||
10.17 Delivery of Lender Addenda | 121 | |||
10.18 WAIVERS OF JURY TRIAL | 121 | |||
10.19 Subordination of Intercompany Indebtedness | 121 | |||
10.20 Judgment Currency | 122 |
iv
ANNEX: | ||
A | Pricing Grid | |
B | Existing Letters of Credit | |
SCHEDULES: | ||
4.4 | Consents, Authorizations, Filings and Notices | |
4.6 | Material Litigation | |
4.10 | Taxes | |
4.15(a) | Subsidiaries | |
4.15(b) | Agreements Related to Capital Stock | |
4.17 | Environmental Matters | |
4.19(a) | Filing Jurisdictions under Personal Property Security Legislation | |
4.19(b) | UCC Financing Statements to be Terminated | |
4.24 | Owned and Leased Property; Mortgaged Properties | |
5.1(h) | Environmental Assessments | |
6.15 | Post Closing Obligations | |
7.2(d) | Existing Indebtedness | |
7.3(f) | Existing Liens | |
7.5(e) | Certain Dispositions | |
7.10 | Transactions with Affiliates | |
EXHIBITS: | ||
A-1 | Guarantee and US Collateral Agreement | |
A-2 | Canadian Collateral Agreement | |
B | Form of Compliance Certificate | |
C | Form of Closing Date Certificate | |
D-1 | Form of US Mortgage | |
D-2 | Form of Canadian Mortgage | |
E | Form of Assignment and Assumption | |
F-1 | Form of Legal Opinion of Akin Gump Strauss Hauer & Feld LLP | |
F-2 | Form of Legal Opinion of Blakes, Cassels & Graydon LLP | |
F-3 | Form of Legal Opinion of Stewart McKelvey | |
G-1 | Form of Term Note | |
G-2 | Form of Revolving Credit Note | |
G-3 | Form of Swing Line Note | |
G-4 | Form of Discount Note | |
H | Form of Exemption Certificate | |
I | Form of Lender Addendum | |
J | Form of Borrowing Notice | |
K | Form of Solvency Certificate |
Canadian Prime | Base Rate | Acceptance | Eurodollar | |||||||||||||
Rate Loans | Loans | Fee | Loans | |||||||||||||
Revolving Credit Facilities (including Swing Line Loans) | 2.50 | % | 2.50 | % | 3.50 | % | 3.50 | % | ||||||||
US Term Loan Facility | N.A. | 2.50 | % | N.A. | 3.50 | % | ||||||||||
Canadian Term Loan Facility | 2.50 | % | N.A. | 3.50 | % | N.A. |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Percentage of | ||||
Original Principal | ||||
Installment | Amount | |||
December 31, 2008 | 1.25 | % | ||
March 31, 2009 | 1.25 | % | ||
June 30, 2009 | 1.25 | % | ||
September 30, 2009 | 1.25 | % | ||
December 31, 2009 | 2.50 | % | ||
March 31, 2010 | 2.50 | % | ||
June 30, 2010 | 2.50 | % | ||
September 30, 2010 | 2.50 | % | ||
December 31, 2010 | 3.75 | % | ||
March 31, 2011 | 3.75 | % | ||
June 30, 2011 | 3.75 | % | ||
September 30, 2011 | 3.75 | % | ||
December 31, 2011 | 5.00 | % | ||
March 31, 2012 | 5.00 | % | ||
June 30, 2012 | 5.00 | % | ||
September 30, 2012 | 5.00 | % | ||
December 31, 2012 | 12.50 | % | ||
March 31, 2013 | 12.50 | % | ||
June 30, 2013 | 12.50 | % | ||
Term Loan Maturity Date | 12.50 | % |
32
Percentage of | ||||
Original Principal | ||||
Installment | Amount | |||
December 31, 2008 | 1.25 | % | ||
March 31, 2009 | 1.25 | % | ||
June 30, 2009 | 1.25 | % | ||
September 30, 2009 | 1.25 | % | ||
December 31, 2009 | 2.50 | % | ||
March 31, 2010 | 2.50 | % | ||
June 30, 2010 | 2.50 | % | ||
September 30, 2010 | 2.50 | % | ||
December 31, 2010 | 3.75 | % | ||
March 31, 2011 | 3.75 | % | ||
June 30, 2011 | 3.75 | % | ||
September 30, 2011 | 3.75 | % | ||
December 31, 2011 | 5.00 | % | ||
March 31, 2012 | 5.00 | % | ||
June 30, 2012 | 5.00 | % | ||
September 30, 2012 | 5.00 | % | ||
December 31, 2012 | 12.50 | % | ||
March 31, 2013 | 12.50 | % | ||
June 30, 2013 | 12.50 | % | ||
Term Loan Maturity Date | 12.50 | % |
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
Fiscal Quarter | Consolidated Leverage Ratio | |||
FQ3 2008 | 4.50 : 1.00 | |||
FQ4 2008 | 4.50 : 1.00 | |||
FQ1 2009 | 4.50 : 1.00 | |||
FQ2 2009 | 4.50 : 1.00 | |||
FQ3 2009 | 4.25 : 1.00 | |||
FQ4 2009 | 4.25 : 1.00 | |||
FQ1 2010 | 4.25 : 1.00 | |||
FQ2 2010 | 4.25 : 1.00 | |||
FQ3 2010 | 4.00 : 1.00 | |||
FQ4 2010 | 4.00 : 1.00 | |||
FQ1 2011 | 4.00 : 1.00 | |||
FQ2 2011 | 4.00 : 1.00 | |||
FQ3 2011 and thereafter | 3.75 : 1.00 |
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
The Borrowers: | Waste Services, Inc. | |||
1122 International Blvd., Suite 601 | ||||
Burlington, Ontario L7L 6Z8 | ||||
Attention: General Counsel | ||||
Telecopy: (905) 319-9408 | ||||
Telephone: (905) 319-1237 | ||||
The Administrative Agent: | Barclays Bank PLC | |||
200 Park Avenue | ||||
New York, New York 10166 | ||||
Attention: David Barton, Director | ||||
Telecopy: (212) 412-7600 | ||||
Telephone: (212) 412-7693 | ||||
with a copy to | ||||
Latham & Watkins LLP | ||||
885 Third Avenue, Suite 1000 | ||||
New York, New York 10022 | ||||
Attention: Melissa S. Alwang | ||||
Telecopy: (212) 751-4864 | ||||
Telephone: (212) 906-1200 | ||||
The Canadian Agent: | The Bank of Nova Scotia | |||
c/o GWS Loan Operations | ||||
720 King Street West, 2nd Floor | ||||
Toronto, Ontario | ||||
Canada M5V 2T3 | ||||
Attention: Simon Liu, GWS Loan | ||||
Administration and Agency Services | ||||
Telecopy: (416) 866-5991 | ||||
Telephone: (416) 649-4044 |
111
Issuing Lenders: | As notified by such Issuing Lender to the Administrative Agent and the Borrowers |
112
113
114
115
116
117
118
119
120
121
122
WASTE SERVICES (CA) INC. | ||||
By: | /s/ Ivan R. Cairns | |||
Name: | Ivan R. Cairns | |||
Title: | Vice-President and Secretary | |||
WASTE SERVICES, INC. | ||||
By: | /s/ Ivan R. Cairns | |||
Name: | Ivan R. Cairns | |||
Title: | Executive Vice-President, General Counsel and Corporate Secretary |
123
BARCLAYS BANK PLC, as Administrative Agent | ||||
By: | /s/ David Barton | |||
Name: | David Barton | |||
Title: | Director | |||
BANK OF AMERICA, N.A., as Syndication Agent and a Lender | ||||
By: | /s/ Maria F. Maia | |||
Name: | Maria F. Maia | |||
Title: | Managing Director |
124
REVOLVING CREDIT LOANS AND SWING LINE LOANS
Applicable Margin for | Applicable Margin for Base | |||||||||||||||
Eurodollar Loans and BA | Rate Loans and Canadian | |||||||||||||||
Equivalent Loans | Prime Rate Loans | |||||||||||||||
Revolving | Revolving | |||||||||||||||
Credit Loans | Credit Loans | |||||||||||||||
Consolidated Total Leverage | and Swing | and Swing | ||||||||||||||
Ratio | Term Loans | Line Loans | Term Loans | Line Loans | ||||||||||||
< 3.00 to 1.00 | 3.00 | % | 3.00 | % | 2.00 | % | 2.00 | % | ||||||||
> 3.00 to 1.00 and < 3.50 to 1.00 | 3.25 | % | 3.25 | % | 2.25 | % | 2.25 | % | ||||||||
> 3.50 to 1.00 and < 4.00 to 1.00 | 3.50 | % | 3.50 | % | 2.50 | % | 2.50 | % | ||||||||
> 4.00 to 1.00 | 3.75 | % | 3.75 | % | 2.75 | % | 2.75 | % |
Beneficiary | Maturity Date | Amount US$ | |||
AIG Insurance | March 15, 2009 | 10,194,937 | |||
City of Tampa | June 30, 2009 | 300,000 | |||
Evergreen National Indemnity | July 7, 2009 | 250,000 | |||
City of Tampa | December 21, 2008 | 100,000 | |||
TOTAL | 10,844,937 |
Consents, Authorizations, Filings and Notices
Material Litigation
Taxes
Subsidiaries
Exact Legal Name of Subsidiary as | Jurisdiction of | |||||||
Reflected on the Certificate of | Incorporation / | Percentage of Capital Stock Owned by | Number of each Class of Capital Stock | |||||
Incorporation (or Formation) | Formation | each Group Member | Owned by each Group Member | |||||
1. | Waste Services, Inc. | Delaware | None | None | ||||
2. | Capital Environmental Holdings Company | Nova Scotia | 100% of outstanding shares of common stock owned by Waste Services, Inc. | 90,599,926 common shares (Certificate No. C-42) | ||||
3. | Waste Services (CA) Inc. | Ontario | 100% of the outstanding common shares owned by Capital Environmental Holdings Company. | 87,658,785 common shares (Certificate No. 0007) | ||||
32% of outstanding exchangeable shares owned by Capital Environmental Holdings Company | 2,941,039 exchangeable shares | |||||||
4. | Waste Services of Florida, Inc. | Delaware | 100% owned by Waste Services, Inc. | One share of common stock owned by Waste Services, Inc. (Certificate No. 2) | ||||
5. | Omni Waste of Osceola County LLC | Florida | 100% participation owned by Waste Services, Inc. (represents 100 points and a sharing ration of 100%) | 100% participation owned by Waste Services, Inc. (represents 100 points and a sharing ration of 100%) (Certificate No. 7) | ||||
6. | Jacksonville Florida Landfill, Inc. | Delaware | 100% owned by Waste Services, Inc. | One share of common stock owned by Waste Services, Inc. (Certificate No. 2) | ||||
7. | Sanford Recycling and Transfer, Inc. | Florida | 100% owned by Waste Services of Florida, Inc. | 1,000 shares of common stock owned by Waste Services of Florida, Inc. (Certificate No. 3) | ||||
8. | Taft Recycling, Inc. | Florida | 100% owned by Waste Services of Florida, Inc. | 97 shares of common stock owned by Waste Services of Florida, Inc. (Certificate No. 12) | ||||
9. | Sun Country Materials, LLC | Delaware | 100% owned by Waste Services of Florida, Inc. | Sole Membership interest owned by Waste Services of Florida, Inc. (Certificate No. 2) |
Exact Legal Name of Subsidiary as | Jurisdiction of | |||||||
Reflected on the Certificate of | Incorporation / | Percentage of Capital Stock Owned by | Number of each Class of Capital Stock | |||||
Incorporation (or Formation) | Formation | each Group Member | Owned by each Group Member | |||||
10. | SLD Landfill, Inc. | Delaware | 100% owned by Waste Services of Florida, Inc. | 100 shares of common stock owned by Waste Services of Florida, Inc. (Certificate No.2) | ||||
11. | Waste Services of Arizona, Inc. | Delaware | 100% owned by Waste Services, Inc. | 100 shares owned by Waste Services, Inc. (Certificate No. C-2) | ||||
12. | Ram-Pak Compaction Systems Ltd. | Canada | 100% owned by Waste Services (CA) Inc. | 68 Class A shares owned by Waste Services (CA) Inc. (Certificate No. A-7) | ||||
13. | 9180-1720 Quebec Inc. | Quebec | 100% owned by Waste Services (CA) Inc. | 804 Common shares owned by Waste Services (CA) Inc. | ||||
14. | Freedom Recycling Holdings, LLC | Florida | 100% participation owned by Waste Services, Inc. (represents 100 points and a sharing ration of 100%) | 100% participation owned by Waste Services, Inc. (represents 100 points and a sharing ration of 100%) (Certificate No. 2) |
Agreements Related to Capital Stock
1. | Warrants to purchase shares of common stock at the ratio of one share for three warrants. |
Exercise | Number of Warrants | |||||||||||
Warrant | Price ($) | Expiry Date | Outstanding | |||||||||
April 30, 2004 Warrants | 4.00 | April 30, 2009 | 1,339,000 | |||||||||
Martin, Larry | 5.75 | February 24, 2009 | 200,000 | |||||||||
Sutherland-Yoest, David | 2.70 | September 7, 2011 | 1,000,000 | |||||||||
DeGroote, Michael G | 2.84 | March 28, 2010 | 264,085 | |||||||||
Kelso Warrants | 3.00 | May 6, 2010 | 7,150,000 | |||||||||
TOTAL | 9,953,085 |
2. | Provisions attaching to the exchangeable shares of Waste Services (CA) Inc. | |
3. | Stock options issued pursuant to the 1999 Stock Option Plan of Waste Services (CA) Inc. and the 2007 Equity and Performance Incentive Plan. | |
4. | Restricted stock units granted pursuant to the 2007 Equity and Performance Incentive Plan. |
Environmental Matters
1. | Potential soil and ground waster contamination associated with past uses of 1601 North 34th Street and 1400 North 35th Street, Tampa, Florida 33605. Petroleum smells and staining. Likely contamination from fertilizer plant operated from 1915 to 1979. Estimated future remediation costs of $550,000. No remedial actions taken to date. Geosyntec has been hired to submit an action plan to the FDEP prior to year end. | |
2. | Clearwater Material Transfer. Potential soil and ground water contamination associated with past uses of 12875 60th Street North, Clearwater, Florida 33760. Contaminated groundwater has been detected along the property line of the 126th Avenue Landfill (closed) that abuts the CMT property. There is a high potential that soil and groundwater quality impacts could be associated with the former 126th Avenue Landfill site which could adversely affect soil and groundwater quality at the CMT property. FDEP is aware of this contamination and is addressing the issue through litigation with the owner of the 126th Avenue Landfill. CMT has not been asked to take any action. In addition, a septic system has been identified on the CMT property that may, in the future, require remedial work. The estimated remedial cost related to the septic system is $50,000, for which a reserve has been established. | |
3. | Potential soil and ground waster contamination associated with past uses of 5113 Uceta Road, Tampa, Florida 33618. Blast grit on site from previous owner. FDEP pursuing prior owner under consent order with prior owner. Estimated future remediation costs of up to $500,000. | |
4. | Potential ground water contamination at Sun Country Landfill. Remediation of ground water plume anticipated over a number of years; estimated future costs of $150,000. | |
5. | Pro Disposal — Potential soil contamination at 2289 Brunner Lane, Ft. Myers, Florida 33912. Surface stained soil to be removed. Estimated costs less than $25,000. | |
6. | Pro Disposal — Potential soil and ground water contamination at 3715 Progress Avenue, Naples, Florida 34104. Petroleum related compounds and arsenic in soil will require soil removal and monitoring. Estimated remediation costs of $150,000. | |
7. | Altamonte (Orlando) Hauling Fuel Island. A proposed remediation action plan has been developed to address contamination resulting from a leak in the piping system of the fueling station at the facility. The proposed remediation action plan has been submitted to FDEP for its review and approval. The proposed plan would involve excavation and removal of contaminated soil and groundwater, and installation of an air sparging system. The cost estimate to restore soil and groundwater quality at the site to attempt to achieve No Further Action status is $300,000. | |
8. | JED Landfill Title V Air Permit. On August 27, 2008, the JED Landfill received a Consent Order from the Florida Department of Environmental Protection (FDEP) related |
to a warning letter received in 2007 regarding the timing of the installation of a gas collection system and related reporting. Omni Waste of Osceola County, LLC, the owner of the JED Landfill, has signed the Consent Order which will require payment of a fine of $61,200 (which may be replaced with an agreed Pollution Prevention (P2) program which is currently being discussed) and installation of the required gas collection systems by December 31, 2008. Will likely be resolved by year end.. |
9. | Sun Country Materials Landfill Warning Letter. On July 30, 2008, the Sun Country Materials C & D Landfill received a warning letter from the FDEP regarding unacceptable waste in the landfill, inadequate number of spotters, insufficient select waste layer, slopes steeper than 3 to 1, fill sequencing and phased closure of old fill. The proposed fine is $18,097 which we have agreed to pay. A short form consent order will be drafted by the FDEP and will be resolved by year end. |
Filing Jurisdictions under Personal Property Security Legislation
1. | US — UCC Filings |
Loan Party | Filing Office | |
Waste Services, Inc. | Secretary of State, Delaware | |
Jacksonville Florida Landfill, Inc. | Secretary of State, Delaware | |
Waste Services of Arizona, Inc. | Secretary of State, Delaware | |
Waste Services of Florida, Inc. | Secretary of State, Delaware | |
Omni Waste of Osceola County LLC | Secretary of State, Florida | |
SLD Landfill, Inc. | Secretary of State, Delaware | |
Sanford Recycling and Transfer, Inc. | Secretary of State, Florida | |
Sun County Materials, LLC | Secretary of State, Delaware | |
Taft Recycling, Inc. | Secretary of State, Florida | |
Freedom Recycling Holdings, LLC | Secretary of State, Florida |
2. | Canadian Personal Property Registrations |
Jurisdiction | Debtor Name | |
British Columbia | Waste Services (CA) Inc. | |
Alberta | Waste Services (CA) Inc. | |
Saskatchewan | Waste Services (CA) Inc. | |
Ontario | Waste Services (CA) Inc. | |
Ontario | Ram-Pak Compaction Systems Ltd. | |
Ontario | Capital Environmental Holdings Company | |
Ontario | Waste Services, Inc. | |
Ontario | Waste Services of Arizona, Inc. | |
Ontario | Waste Services of Florida, Inc. | |
Ontario | Jacksonville Florida Landfill, Inc. | |
Ontario | Omni Waste of Osceola County LLC | |
Ontario | SLD Landfill, Inc. | |
Ontario | Sanford Recycling and Transfer, Inc. | |
Ontario | Sun County Materials, LLC |
Jurisdiction | Debtor Name | |
Ontario | Taft Recycling, Inc. | |
Ontario | Freedom Recycling Holdings, LLC | |
Nova Scotia | Capital Environmental Holdings Company |
UCC Financing Statements to be Terminated
ORIGINAL FILE DATE | ||||||||
DEBTOR | SECURED PARTY | JURISDICTION | AND NUMBER | DESCRIPTION | ||||
Waste Services, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No: 33437384 | All Assets | ||||
Waste Services, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No: 41220088 | All Assets | ||||
Waste Services of Florida, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No: 3343735 | All Assets | ||||
Waste Services of Florida, Inc | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No: 41220104 | All Assets | ||||
Jacksonville Florida Landfill, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No: 41135997 | All Assets | ||||
Jacksonville Florida Landfill, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No: 41220062 | All Assets | ||||
Pro Disposal, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Florida | File No. 200604452193 Date: 12/27/2006 | All Assets | ||||
U.S.A. Recycling Holdings, L.L.C. | Lehman Commercial Paper Inc., as Administrative Agent | Florida | File No. 200705304254 Date: 04/13/2007 | All Assets | ||||
U.S.A. Recycling L.L.C. | Lehman Commercial Paper Inc., as Administrative Agent | Florida | File No. 200705304262 Date: 04/13/2007 | All Assets | ||||
Freedom Recycling Holdings LLC | Lehman Commercial Paper Inc., as Administrative Agent | Florida | File No. 200705304246 Date: 04/13/2007 | All Assets |
ORIGINAL FILE DATE | ||||||||
DEBTOR | SECURED PARTY | JURISDICTION | AND NUMBER | DESCRIPTION | ||||
SLD Landfill Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No. 64496352 Date: 12/21/2006 | All Assets | ||||
Sun Country Materials, LLC | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No. 63133972 Date 09/11/2006 | All Assets | ||||
Waste Services of Arizona, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No. 33437285 Date: 12/31/2003 | All Assets | ||||
Waste Services of Arizona, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No. 41220112 Date: 04/30/2004 | All Assets | ||||
Waste Services of Arizona, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | Delaware | File No. 70827492 Date: 03/06/2007 | All Assets | ||||
Southwest Dumpster, Inc. | Comerica Bank, as Agent | Florida | File No. 200704703147 Date: 1/30/2007 | Blanket Lien | ||||
Pro Disposal, Inc. | VFS US LCC | Florida | File No: 200407462242 File Date: 07/21/2004 | 2004 Mack CHN613 s/n 1M1AA18Y04N157098 together with accessories | ||||
Pro Disposal, Inc. | VFS US LLC | Florida | File No: 200500454866 File Date: 08/16/2005 | 2006 Mack CHN613 s/n 1M2AG06Y56N003483 together with accessories | ||||
Pro Disposal, Inc. | Stag Leasing, Inc. | Florida | File No: 20050000366X File Date: 06/23/2005 | 2006 Mack CHN613 s/n 1M1AJ06Y16N003841 together with accessories | ||||
Pro Disposal, Inc. | VFS US LLC | Florida | File No: 20040861934X File Date: 08/16/2005 | 2005 Mack CHN613 s/n 1M1AJ06Y65N001646 together with accessories | ||||
Pro Disposal, Inc. | VFS US LLC | Florida | File No: 200509517410 File Date: 04/25/2005 | 3 — 2005 Mack CHN613 s/n 1M1AJ06Y55N001802, 1M1AJ06Y75N001803, 1M1AJ06Y95N001804 together with accessories |
ORIGINAL FILE DATE | ||||||||
DEBTOR | SECURED PARTY | JURISDICTION | AND NUMBER | DESCRIPTION | ||||
U.S.A. Recycling Holdings, L.L.C. | Toyota Motor Credit Corporation | Florida | File No.: 200500092506 File Date: 07/05/2005 | 1 New 2005 Toyota Industrial Forklift Truck Model 7FDU25 S/N: 7FDU25-61654 | ||||
USA Recycling, LLC | Toyota Financial Services | Florida | File No.: 200406190109 File Date: 02/19/2004 | 1 New 2004 Toyota Forklift Model 7FDU25 S/N: 61007 | ||||
USA Recycling, LLC | General Electric Capital Corporation | Florida | File No: 200406177455 File Date: 02/17/2004 | 1 Princeton Z2-3 Piggy back 86’ mast low profile | ||||
U.S.A. Recycling, L.L.C. | Center Capital Corporation | Florida | File No.: 20030446650 File Date: 06/06/2003 | Specific Equipment - - 24 20CY Roll Off Steel Containers | ||||
U.S.A. Recycling, L.L.C. | Center Capital Corporation | Florida | File No.: 200304655943 File Date: 08/07/2003 | Specific Equipment - - 24 EBCO 20CY Roll off Steel Containers | ||||
U.S.A. Recycling, L.L.C. | Center Capital Corporation | Florida | File No.: 200407122905 File Date: 06/08/2004 | Specific Equipment | ||||
U.S.A. Recycling, L.L.C. | Center Capital Corporation | Florida | File No.: 200603035130 File Date: 06/28/2006 | Specific Equipment | ||||
U.S.A. Recycling, L.L.C. | Center Capital Corporation | Florida | File No.: 200603035173 File Date: 06/28/2006 | Specific Equipment | ||||
U.S.A. Recycling L.L.C. | Lakeland Bank Equipment Leasing Division | Florida | File No.: 200704625529 File Date: 01/22/2007 | Specific Equipment | ||||
Pro Disposal, Inc. (Defendant) | Amanda K. Buckley | Lee County, FL | #BK 4154 PG 4310 File Date: 12/23/2003 | JUDGMENT $863.34 | ||||
Waste Services of Arizona, Inc. | TCF Leasing, Inc. | Delaware | File No: 50740622 File Date: 03/08/2005 | Specific Equipment 2003 Autocar WX64 with a Wittke Model FLC 3102-40 Super Duty Front Loader Eject Style |
Jurisdiction | Secured Party Name | Registration Particulars | Collateral Secured | |||
Registrations with respect to Waste Services (CA) Inc. | ||||||
Ontario | Lehman Commercial Paper Inc., as Administrative Agent | File No.: 602028252 Registration No.: 20031223 1131 1590 5943 | Inventory, Equipment, Accounts, Other, Motor Vehicle Included | |||
Alberta | Lehman Commercial Paper Inc., as Administrative Agent | Registration No.: 03122316387 Date: December 23, 2003 | All Present and after acquired personal property of the debtor | |||
Alberta | 2038314 Ontario Inc. 181 Bay Street, Suite 4400, Toronto ON M5J 2T3 | Registration No.: 03123004677 Date: December 30, 2003 | Land Charge | |||
British Columbia | 2038314 Ontario Inc. 181 Bay Street, Suite 4400, Toronto ON M5J 2T3 | Registration No.: 460362B Date: December 30, 2003 | An uncrystalized floating charge on land | |||
British Columbia | Lehman Commercial Paper Inc., as Administrative Agent | Registration No.: 455575B Date: December 23, 2003 | All of the presently owned or held and after acquired property | |||
Registrations with respect to Ram-Pak Compaction Systems Ltd. | ||||||
Ram-Pak Compaction Systems Ltd. | Lehman Commercial Paper Inc., as Administrative Agent | File No. 602028279 Registration No.: 20031223 1131 1590 5944 | Inventory, Equipment, Accounts, Other, Motor Vehicle Included | |||
Registrations with respect to Waste Services, Inc. | ||||||
Waste Services, Inc. | Lehman Commercial Paper Inc., as Administrative Agent | File No. 602028297 Registration No.: 20031223 1132 1590 5946 | Inventory, Equipment, Accounts, Other, Motor Vehicle Included | |||
Registrations with respect to Capital Environmental Resource Inc. | ||||||
Capital Environmental Resource Inc. | Fanotech Enviro Inc. 220 Old North Road, R.R. No. 3, Huntsville, ON P1H 2J4 | File No: 614967804 Registration No.: 20050510 1135 1200 0928 | Equipment, Other, Motor Vehicle Included. 2003 Sterling Model Acterra VIN 2FZAAHCS03AK85226 2003 Sterling Model Acterra VIN 2FZAAHCS73AK85224 2003 Sterling Model Acterra VIN 2FZAAHCSX3AK85220 2003 Sterling Model Acterra VIN 2FZAAHCSX3AK85217 2003 Sterling Model Acterra VIN 2FZAAHCS53AK85223 |
Environmental Assessments
Waste Services Inc. and Capital Environmental Resources Inc.
Date Published | Geosyntec | Site Description/Location | ||||
(Month-20XX) | Project Number | Document Title | at Time of Due Diligence | |||
March-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Main Facility”, 1099 Miller Drive, Altamonte Springs, Seminole County, Florida | |||
March-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Fort Myers Facility”, 2465 Highland Avenue, Fort Myers, Lee County, Florida | |||
March-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “LaBelle Facility”, 1378 State Route 29 North, LaBelle, Hendry County, Florida | |||
March-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Lake County Facility”, 3925 Rogers Industrial Park Blvd, Okahumpka, Lake County, Florida | |||
March-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Tampa Facility”, 1915 N. 62nd Street, Tampa, Hillsborough County, Florida | |||
March-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Taft Transfer Facility”, 375 W. 7th Street, Orlando, Orange County, Florida | |||
March-03 | FR0498 | Potential CERCLA PRP Cleanup Liability Evaluation | Multiple Florida Recycling Services Sites | |||
April-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Rand Yard Facility”, 922 White Cedar Road, Sanford, Seminole County, Florida |
1 of 7
Waste Services Inc. and Capital Environmental Resources Inc.
Date Published | Geosyntec | Site Description/Location | ||||
(Month-20XX) | Project Number | Document Title | at Time of Due Diligence | |||
April-03 | FR0507 | Modified Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Ft. Myers Vacant Property”, 2491 Highland Avenue, Fort Myers, Lee County, Florida 33916 | |||
August-03 | FR0498 | Phase I Environmental Site Assessment | Florida Recycling Services, Inc.’s “Ft. Myers Vacant Property”, 2491 Highland Avenue, Fort Myers, Lee County, Florida 33916 | |||
August-03 | FR0498 | Phase II Environmental Site Assessment | Florida Recycling Services, Inc.’s “Main Facility”, 1099 Miller Drive, Altamonte Springs, Seminole County, Florida | |||
August-03 | FR0498 | File Review and Phase II Environmental Site Assessment | Florida Recycling Services, Inc.’s “Fort Myers Facility”, 2465 Highland Avenue, Fort Myers, Lee County, Florida | |||
August-03 | FR0498 | Phase II Environmental Site Assessment | Florida Recycling Service’s “La Belle Facility”, 1378 State Route 29 North, La Belle, Hendry County, Florida | |||
August-03 | FR0498 | Phase II Environmental Site Assessment | Florida Recycling Services, Inc.’s “Lake County Facility”, 3925 Rogers Industrial Park Blvd, Okahumpka, Lake County, Florida | |||
August-03 | FR0498 | Phase II Environmental Site Assessment | Florida Recycling Services, Inc.’s “St. Lucie County Facility”, 4100 Selvitz Road, Fort Pierce, St. Lucie County, Florida |
2 of 7
Waste Services Inc. and Capital Environmental Resources Inc.
Date Published | Geosyntec | Site Description/Location | ||||
(Month-20XX) | Project Number | Document Title | at Time of Due Diligence | |||
August-03 | FR0498 | Phase II Environmental Site Assessment | Florida Recycling Services, Inc.’s “Taft Transfer Facility”, 375 W. 7th Street, Orlando, Orange County, Florida | |||
December-03 | FR0568 | Phase I Environmental Site Assessment | Allied Waste Industries, Inc.’s “Tampa Recyclery”, 3560 126th Avenue, Clearwater, Pinellas County, Florida | |||
December-03 | FR0568 | Environmental Compliance Review | Allied Waste Industries, Inc.’s “Tampa Recyclery”, 3560 126th Avenue, Clearwater, Pinellas County, Florida | |||
December-03 | FR0568 | Phase I Environmental Site Assessment | Allied Waste Industries, Inc.’s “Tampa Bay Hauling Facility”, 11500 43rd Street N., Clearwater, Pinellas County, Florida 33762 | |||
December-03 | FR0568 | Environmental Compliance Review | Allied Waste Industries, Inc.’s “Tampa Bay Hauling Facility”, 11500 43rd Street N., Clearwater, Pinellas County, Florida 33762 | |||
December-03 | FR0568 | Phase I Environmental Site Assessment | Allied Waste Industries, Inc.’s “Pasco Hauling Facility”, 6800 Osteen Road, New Port Richey, Pasco County, Florida |
3 of 7
Waste Services Inc. and Capital Environmental Resources Inc.
Date Published | Geosyntec | Site Description/Location | ||||
(Month-20XX) | Project Number | Document Title | at Time of Due Diligence | |||
December-03 | FR0568 | Environmental Compliance Review | Allied Waste Industries, Inc.’s “Pasco Hauling Facility”, 6800 Osteen Road, New Port Richey, Pasco County, Florida | |||
December-03 | FR0568 | Phase I Environmental Site Assessment | Allied Waste Industries, Inc.’s “Sarasota HLG Facility”,3900 North Orange Avenue, Sarasota, Sarasota County, Florida | |||
December-03 | FR0568 | Environmental Compliance Review | Allied Waste Industries, Inc.’s “Sarasota HLG Facility”,3900 North Orange Avenue, Sarasota, Sarasota County, Florida | |||
December-03 | FR0568 | Phase I Environmental Site Assessment | Allied Waste Industries, Inc’s. “Sarasota Transfer Station and MRF”, 1325 North Osprey Avenue, Sarasota, Florida | |||
December-03 | FR0568 | Environmental Compliance Review | Allied Waste Industries, Inc’s. “Sarasota Transfer Station and MRF”, 1325 North Osprey Avenue, Sarasota, Florida | |||
December-03 | FR0568 | Environmental Compliance Review | Allied Waste Industries, Inc’s. “Pasco MRF Facility”, 14220 Hays Road, Springhill, Florida | |||
December-03 | FR0568 | Environmental Compliance Review | Allied Waste Industries, Inc’s. “McKay Bay Transfer Facility”, 112 N. 34th Street, Tampa, Florida | |||
December-03 | FR0568 | Potential CERCLA PRP Cleanup Liability Evaluation | Multiple Allied Waste Industries, Inc. Locations in Florida | |||
April-04 | FE0606 | Phase I Environmental Site Assessment | Aaron Long Property, Just East of U.S. 301 and C.R. 672, Balm, Hillsborough County, Florida |
4 of 7
Waste Services Inc. and Capital Environmental Resources Inc.
Date Published | Geosyntec | Site Description/Location | ||||
(Month-20XX) | Project Number | Document Title | at Time of Due Diligence | |||
August-04 | FE0606 | Phase II Environmental Site Assessment | Aaron Long Property, Just East of U.S. 301 and C.R. 672, Balm, Hillsborough County, Florida | |||
August-04 | FR0568 | Phase II Environmental Site Assessment | “Pasco Hauling Facility”, 6800 Osteen Road, New Port Richey, Pasco County, Florida | |||
August-04 | FE0608 | Phase I Environmental Site Assessment | Advanced Disposal Services’ “Stash Yard”, 201 Parcel Lane, Orlando, Orange County, Florida | |||
August-04 | FE0609 | Phase I Environmental Site Assessment | Advanced Disposal Services’ “Orlando Division”, 9526 Sidney Hayes Road, Orlando, Orange County, Florida | |||
June-05 | FE0771 | Phase I Environmental Site Assessment | “Icehouse Facility”, Sanford, Seminole County, Florida | |||
March-06 | FE0893 | Modified Phase I Environmental Site Assessment | Sun Country Materials Landfill, 11457 County Road 672, Balm, Hillsborough County, Florida | |||
March-06 | FE0893 | Modified Phase I Environmental Site Assessment | Liberty Waste & Recycling “Shop”, 1601 North 34th Street, Tampa, Hillsborough County, Florida | |||
March-06 | FE0893 | Modified Phase I Environmental Site Assessment | Liberty Waste, LLC Clearwater Materials Transfer “CMT”, 12875 60th Street North, Clearwater, Pinellas County, Florida | |||
March-06 | FE0893 | Modified Phase I Environmental Site Assessment | Liberty Waste, LLC Tampa Materials Transfer “TMT”, 5113 Uceta Road, Tampa, Hillsborough County, Florida | |||
May-06 | FE0893 | Phase II Environmental Site Assessment | Liberty Waste & Recycling “Shop”, 1601 North 34th Street, Tampa, Hillsborough County, Florida |
5 of 7
Waste Services Inc. and Capital Environmental Resources Inc.
Date Published | Geosyntec | Site Description/Location | ||||
(Month-20XX) | Project Number | Document Title | at Time of Due Diligence | |||
May-06 | FE0893 | Phase II Environmental Due Diligence - - File Review | Liberty Waste, LLC Clearwater Materials Transfer “CMT”, 12875 60th Street North, Clearwater, Pinellas County, Florida | |||
May-06 | FE0893 | Phase II Environmental Due Diligence - - File Review | Liberty Waste, LLC Tampa Materials Transfer “TMT”, 5113 Uceta Road, Tampa, Hillsborough County, Florida | |||
October-06 | FE1061 | Modified Phase I Environmental Site Assessment | “Container Storage Area”, 7450 NW 63 Street, Miami, Dade County, Florida | |||
October-06 | FE1061 | Modified Phase I Environmental Site Assessment | “Allied Waste Industries Facility”, 3840 NW 37 Court, Miami, Dade County, florida | |||
December-06 | FE1089 | Phase I Environmental Site Assessment and Limited Environmental Compliance Review | “Southwest Land Developers, Inc (SLD) Recycling and Disposal Site”, 30301 Zemel Road, Punta Gorda, Florida | |||
December-06 | FE1104 | Phase I Environmental Site Assessment and Limited Environmental Compliance Review | “Fort Myers MRF”, 16801 Stock Court, Fort Myers, Florida | |||
December-06 | FE1104 | Phase I Environmental Site Assessment and Limited Environmental Compliance Review | “Naples MRF”, 3715 Progress Avenue, Naples, Florida | |||
December-06 | FE1104 | Phase I Environmental Site Assessment and Limited Environmental Compliance Review | “Fort Myers Office”, 2289 Bruner Lane, Fort Myers, Florida | |||
December-06 | FE1104 | Phase II Environmental Site Assessment | “Fort Myers MRF”, 16801 Stock Court, Fort Myers, Florida | |||
December-06 | FE1104 | Phase II Environmental Site Assessment | “Naples MRF”, 3715 Progress Avenue, Naples, Florida | |||
December-06 | FE1104 | Phase II Environmental Site Assessment | “Fort Myers Office”, 2289 Bruner Lane, Fort Myers, Florida |
6 of 7
Waste Services Inc. and Capital Environmental Resources Inc.
Date Published | Geosyntec | Site Description/Location | ||||
(Month-20XX) | Project Number | Document Title | at Time of Due Diligence | |||
January-07 | FE1162 | EDR Radius Map, Sanborn Map Report | “Mount Dora Disposal and Fill”, 3300 SR 46, Mount Dora, Florida | |||
January-07 | FE1162 | EDR Radius Map, Sanborn Map Report | “West Orange Environmental”, 7706 Avalon Road, Winter Garden, Florida | |||
February-07 | FE1123 | Phase I Environmental Site Assessment and Limited Environmental Compliance Review | “USA Recycling Material Recovery Facility”, 16711 Gator Road, Fort Myers, Florida | |||
February-07 | FE1123 | Phase I Environmental Site Assessment and Limited Environmental Compliance Review | “Freedom Recycling Holdings, LLC”, 3407 81st Court East, Bradenton, Florida | |||
June-07 | FE1267 | Phase I Environmental Site Assessment and Limited Environmental Compliance Review | “WCA Fort Myers MRF”, 4251 Michigan Link Avenue, Fort Myers, Florida | |||
October-07 | FE1367 | EDR Radius Map, EDR-City Directory, Sanborn Map Report | “Lake Environmental C&D”, 21505 CR 455, Clermont, Florida |
7 of 7
117 Advance Boulevard, Brampton, ON | XCG Consultants Environmental Compliance Review (February 24, 2003) XCG Consultants Compliance Audit (May 5, 1999) | |
1266 McAdoo’s Lane R.R. #1 Glenburnie, ON | Brian Forrestal (CERI) Environmental Inspection Report (June 10, 1999) | |
1450 McAdoo’s Lane, R.R. #1 Glenburnie, ON | Brian Forrestal (CERI) Environmental Inspection Report (June 10, 1999) | |
34321 Industrial Way Abbotsford, BC | XCG Consultants Environmental Survey (July 28, 1999) XCG Consultants — Draft Phase 1 ESA (March 5, 2004) | |
28 and 29 Hwy 35 South Lindsay, ON | Brian Forrestal (CERI) Environmental Risk Assessment (May 1998) | |
53103 Strathmoor Way Sherwood Park, ASB | Stanley Environmental, Environmental Site Assessment (March 1998) | |
4624 Cumberland Road, Cumberland, BC | Stanley Environmental Phase 1 ESA (October, 1997) | |
1200 Carmi Avenue, Penticton, BC | Stanley Environmental Phase 1 ESA (October, 1997) | |
688 Harper Road, Peterborough, ON | Brian Forrestal (CERI) Environmental Risk Assessment Report (January 1998) Golder Associates Phase II Environmental Site Investigation (February, 1998) | |
10 Hooper Road, Barrie, ON | Forrestal Associates Phase 1 ESA (August 7, 1997) | |
176A Saunders Road, Barrie, ON | Environmental Risk Assessment Summary (CERI) (August 4, 1999) | |
300 and 306 Lake Avenue North, Hamilton, On | XCG Consultants Operational Compliance Status Report (April 26, 1999) | |
23082 McCowan Road, Sutton West, ON | XCG Consultants Baseline Phase 1/Phase 2 Environmental Site Assessment (August 3, 1999) XCG Consultants Environmental Risk Assessment Summary (July 14, 1999) | |
Gap Landfill Class II Environmental Landfill Minton, Saskatchewan | EBA Engineering Consultants Due Diligence Audit (December 22, 2003) | |
779 Powerline Road, Brantford, ON | Forrestal Associates Environmental Site Assessment (July 23, 1997) | |
147 and 155 Ardelt Avenue, Kitchener, ON | Forrestal Associates Environmental Inspection Report (July 23, 1997) | |
1151 Herring Gull Way Parksville, BC | Stanley Environmental Consultants Phase 1 ESA (August 21, 1997) | |
Paintearth Municipal Landfill Coronation Landfill Coronation, AB | Comprehensive Annual Report for the year ended December 31, 2002 (March 31, 2003) | |
1152 Kenaston Street, Ottawa, ON | Forrestal Associates Environmental Site Assessment (August 6, 1997) | |
1223 Confederation Street, Sarnia, ON | Forrestal Associates Environmental Site Assessment (August 11, 1997) |
3354 Navan Road, Ottawa, ON | Annual Operations and Monitoring Report (March 2003) XCG Consultants Environmental Compliance Review (February 2003) Draft XCG Consultants Environmental Compliance Review (February 2004) Gartner Lee Letter Report (January 21, 2002) | |
500 and 580 Ecclestone Drive, Bracebridge, On | Forrestal Associates Environmental Risk Assessment (November 11, 1997) | |
180 James Street West, Orillia, ON | XCG Consultants Environmental Compliance Review (February 24, 2003) Brian Forrestal (CERI) Environmental Risk Assessment Report (May, 1998) | |
Nibourg Waste Management 2332 County Road 41 Napanee, ON | XCG Phase 1 ESA (Oct/Nov, 2006) XCG Phase 2 ESA (Oct/Nov, 2006) | |
Part Ni/2 Lot 10, Concession 11, Township of Innisfil, Barrie, ON | Skelton Brumwell & Associates Ltd. Environmental Site Assessment, (August 1, 2007) | |
2628 Glanfield Rd., Ottawa, ON | Golder Associates Ltd. Phase 1 Environmental Site Assessment (June, 2002) |
Post Closing Obligations
Waste Services of Florida, Inc. (Delaware)
Title Co.: First American Title Insurance Company; insured amount: $2,602,968.80
Title No. FA-C-369760; Agent’s Title No. NCS-369760-CLW2
Waste Services of Florida, Inc. (Delaware)
Title Co.: First American Title Insurance Company; insured amount: $659,379.40
Title No. FA-C-369766; Agent’s Title No. NCS-369766-CLW2
Omni Waste of Osceola County, LLC (Florida) (formerly an Ohio LLC)
Title Co.: First American Title Insurance Company; insured amount: $3,876,053.80
Title No. FA-C-369777; Agent’s Title No. NCS-369777-CLW2
Sanford Recycling and Transfer, Inc. (Florida)
Title Co.: Land America/Lawyers Title Insurance Corporation; insured amount: $900,000
Title No./Order No. 2645526
Sanford Recycling and Transfer, Inc. (Florida)
Title Co.: Land America/Lawyers Title Insurance Corporation; insured amount: $900,000
Title No./Order No. 2642966
Taft Recycling, Inc. (Florida)
Title Co.: Land America/Lawyers Title Insurance Corporation; insured amount: $1,483,000.00
Title No./Order No. 2642955
SLD Landfill, Inc. (Delaware)
Title Co.: Chicago Title Insurance Company; insured amount: $2,500,000
Title No. 2008 06555; Agent’s Title No. 51900-0023
Existing Indebtedness
1. | A Promissory Note for approximately $2,500,000 in connection with the acquisition of Omni Waste of Osceola County LLC in favor of Evadne Gannarelli. | |
2. | Capital Lease Obligations in the amount of approximately $1,200,000. | |
3. | In November 2002, Waste Services (CA) Inc. entered into a put or pay disposal agreement with RCI Environnement Inc. and certain of its affiliates and Intersan Inc. pursuant to which Waste Services (CA) Inc. and RCI Environnement Inc. and its affiliates agreed to deliver certain volumes of waste to the landfills and transfer stations of Intersan Inc. over a seven year period. Waste Services (CA) Inc. has issued a letter of credit for Cdn. $4,000,000 to secure its obligation. | |
4. | Installment Sales Contract with Caterpillar Financial for a Caterpillar Wheel Loader GP Bucket Setco Solid Tire and Rim, Serial # JMS000860 payable in equal monthly installments of $9,624.44 commencing December 1, 2006, with a current balance of approximately $345,000. | |
5. | Note dated June 29, 2007 payable to WCA Corporation (assigned to CSFB) in the original principal amount of $10,500,000 payable without interest in 84 monthly payments of $125,000.00 on the last business day of each month until Jun 2014 — current balance approximately $8,625,000 . | |
6. | Deferred obligation to complete closure of adjacent C&D landfill in connection with acquisition of SLD Landfill. Estimated cost of approximately $1,800,000. | |
7. | Deferred obligation of approximately $195,000 to Cassidy Homes in connection with acquisition of Sun Country Landfill. Future contingent obligation of approximately $500,000 as building permits obtained for dwelling units. |
Existing Liens
1. | Security deposit of $2,100,000 paid to members of the Ward family re proposed acquisition of RIP, Inc. | ||
2. | Security deposit of $550,000 paid to Hathis Wadi LLC re proposed acquisition of land adjacent to SLD Landfill. | ||
3. | Liens on domestic assets as follows: |
ORIGINAL FILE | ||||||||
SECURED | DATE AND | |||||||
DEBTOR | PARTY | JURISDICTION | NUMBER | DESCRIPTION | ||||
Waste Services, Inc. 1325 North Osprey Avenue, Sarasota, FL 34326 | Phoenix Funding Group, LLC | Florida | File Date:08/25/2008 File #: 20080901225X | 1- DM4 Channel 80GB DVR w CD & DVD Burner 2-Samsung Color Day/Night High Resolution Cameras SCC 2311 2-Camera Housings w/ Sunshield/ Heater HPV 36HS | ||||
Waste Services, Inc. 5113 Uceta Road, Tampa, FL 33618 | Phoenix Funding Group, LLC | Florida | File Date:08/25/2008 File #: 200809012225 | 1- DM4 Channel 80GB DVR w CD & DVD Burner 2-Samsung Color Day/Night High Resolution Cameras SCC 2311 2-Camera Housings w/ Sunshield/ Heater HPV 36HS | ||||
Waste Services, Inc. 11457 CR 672. Balm, FL 33598 | Phoenix Funding Group, LLC | Florida | File Date: 08/25/2008 File #: 200809012233 | 1- DM4 Channel 80GB DVR w CD & DVD Burner 2-Samsung Color Day/Night High Resolution Cameras SCC 2311 2-Camera Housings w/ Sunshield/ Heater HPV 36HS | ||||
Waste Services, Inc. 12875 60th Street. Clearwater, FL 33760 | Phoenix Funding Group, LLC | Florida | File Date: 08/25/2008 File #: 200809012241 | 1- DM4 Channel 80GB DVR w CD & DVD Burner 2-Samsung Color Day/Night High Resolution Cameras SCC 2311 2-Camera Housings w/ Sunshield/ Heater HPV 36HS | ||||
Waste Services, Inc. 11500 43rd Street N., Clearwater, FL 33762 | Ervin Leasing Company | Florida | File Date: 11/20/2007 File #: 200707043202 | Filing for information only 1 Taridan Telephone System, per Schedule A, Ervin Leasing Company Lease No. 158963-01 | ||||
Waste Services, Inc. 11500 43rd Street N., Clearwater, FL 33762 | Ervin Leasing Company | Delaware | File Date: 08/02/2007 File #: 3154696 | Filing for information only. 1 Taridan Telephone System per Schedule A Ervin Leasing Company Lease No. 158963-02. | ||||
Waste Services of Florida, Inc. 6800 Osten Road, New Port Richy, FL 34653 | US Express Leasing, Inc. | Florida | File Date: 03/23/2007 File #: 200705123896 | All items of personal property leased pursuant to that certain Lease Agreement dated March 20, 2007, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. |
ORIGINAL FILE | ||||||||
SECURED | DATE AND | |||||||
DEBTOR | PARTY | JURISDICTION | NUMBER | DESCRIPTION | ||||
Waste Services of Florida, Inc. 1601 N. 34 St., Tampa, FL 33605 | US Express Leasing, Inc. | Florida | File Date: 09/10/2007 File #: 200706485678 | All items of personal property pursuant to that certain Leased Agreement dated August 31, 2007, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. 1 Kyocera Mita 2050 S/N J3106793 | ||||
Waste Services of Florida, Inc. 5002 T-Rex Ave., Suite 200 Boca Raton, FL | US Express Leasing Inc. | Delaware | File Date: 08/17/2006 File #: 62861458 | All items of personal property pursuant to that certain Leased Agreement dated August 9, 2006, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. 1 Kyocera Mita 5035 S/N M3041516 | ||||
Waste Services of Florida, Inc. 3900 N. Orange Street, Sarasota, FL | US Express Leasing Inc. | Delaware | File Date: 02/27/2007 File #: 07351504 | All items of personal property pursuant to that certain Leased Agreement dated August 9, 2006, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. 1 Kyocera Mita 5035 S/N M3042712 | ||||
Waste Services of Florida, Inc. 11500 43rd Street North, Clearwater, FL | US Express Leasing Inc. | Delaware | File Date: 05/11/2007 File #: 1786101 | All items of personal property pursuant to that certain Leased Agreement dated August 9, 2006, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. 1 Kyocera Mita 5050 copier system | ||||
Waste Services of Florida, Inc. 1325 N. Osprey Ave., Sarasota, FL | US Express Leasing Inc. | Delaware | File Date: 05/31/2007 File #: 2035227 | All items of personal property pursuant to that certain Leased Agreement dated August 9, 2006, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. 1 Kyocera Mita 2050 copier system |
�� | ||||||||
ORIGINAL FILE | ||||||||
SECURED | DATE AND | |||||||
DEBTOR | PARTY | JURISDICTION | NUMBER | DESCRIPTION | ||||
Waste Services of Florida, Inc. 2602 North 34th Street, Tampa, FL | US Express Leasing Inc. | Delaware | File Date: 09/25/2007 File #: 3610325 | All items of personal property pursuant to that certain Leased Agreement dated August 9, 2006, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. 1 Kyocera FS-C5030N S/N E7510112 | ||||
Waste Services of Florida, Inc. 11500 43rd Street, Clearwater, FL 33762 | CIT Technology Financing Services, Inc. | Florida | File Date: 08/06/2008 File #: 200808893511 | 2 Kyocera Mita 5050-K8310681, K8310687 1 Konica Minolta 253-A02E)11004831 1 Kyocera Mita 2560- S8501462 plus all other types of office equipment and products, computers, security systems and other items of equipment leased to and/or financed for debtor/lessee by secured party/lessor and including all replacements, upgrades and substitutions hereafter occurring to all of the foregoing equipment and all now existing and future attachments, parts, accessories and add -ons for all of the foregoing items and types of equipment and all proceeds and products thereof. | ||||
Waste Services of Florida, Inc. | Credit Suisse Funding LLC | Delaware | File Date: 06/03/2008 File #: 1989175 | All assets and personal property of Debtor in connection with or related to that certain real property located in Lee County, FL having a legal description as set forth in Schedule A: Tract or Parcel of Land lying in the East One-half (E1/2) of the southeast quarter of Section 17, Township 44 South, Range 25 East, Lee County County, FL. | ||||
Waste Services, Inc. 11500 43rd St. North, Clearwater, FL 33762 | US Express Leasing Inc. | Delaware | File Date: 04/11/2007 File #: 1358067 | All items of personal property pursuant to that certain Leased Agreement dated April 9, 2007, together with all related software, all additions, attachments, accessories and accessions thereto, whether or not furnished by the supplier thereof; and any and all substitutions, replacements and exchanges therefor and all insurance proceeds thereof. 1 Tadiran Coral IPX500 Telephone System | ||||
Waste Services, Inc. 11500 43rd St. North, Clearwater, FL 33762 | Ervin Leasing Company | Delaware | File Date: 08/02/2007 File#: 3154696 | Taridan Telephone System | ||||
Omni Waste of Osceola County, LLC | Caterpillar Financial Services | Florida | File Date: 04/08/2004 File #: 200406604272 | One Caterpillar D7RIILGP track-type tractor SN AFG00527 and substitutions, replacements, additions and accessions thereto. | ||||
Liberty Waste, LLC | Caterpillar Financial Services Corporation | Florida | File Date: 01/05/2006 File #: 20060155196 | One Caterpillar 966GII Wheel Loader SN AXJ02913 and substitutions, replacements, additions and accessions thereto. | ||||
Pro Disposal, Inc. | Caterpillar Financial Services Corporation | Florida | File Date: 11/03/2006 File #: 200604059734 | One Caterpillar 980H Wheel Loader W/GP Bucket A/N: JMS00860 and substitutions, replacements, additions and accessions thereto |
Jurisdiction | Secured Party Name | Registration Particulars | Collateral Secured | |||
Registrations with respect to Waste Services (CA) Inc. | ||||||
Ontario | Ricoh Canada Inc. 100-1235 North Service Rd. W, Oakville, ON L6M 2W2 | File No. 641025945 Registration No. 20071128 1949 1531 9958 | Equipment, Other | |||
Ontario | Xerox Canada Ltd. 33 Bloor Street, 3rd Floor, Toronto, ON M4W 3H1 | File No.: 640460682 Registration No.: 20071105 1701 1462 2484 | Equipment, Other | |||
Ontario | Wakefield Canada Inc. 3620 Lakeshore Blvd. W., Toronto, ON M8W 1P2 | File No.: 632582082 Registration No.: 20070202 1433 8077 7777 | Equipment Secured Amount : $4,447 1-225-006 Graco Fireball 300 50 1 Grease Pump Pkg 2 — 993091 Graco Bench Tank Pkgs 1 — 244-100 Falcon Grease Pump Total Value $4,447.25 | |||
Ontario | VFS Canada Inc. 73 Industrial Parkway North, Aurora, ON L4G 4G4 | File No.: 630828261 Registration No.: 20061122 1711 8077 1904 Amended by: 20061208 1447 8077 3071 | Equipment, Other, Motor Vehicle Included 2007 Mack MR688S VIN #: 1M2K189CX7MO34253 c/w 40 cubic yard Universal Front End Loader Model LM200FE SN8003-3-1620 including dual camera spotlights, camera back up system and fork alarm | |||
Ontario | Xerox Canada Ltd. 33 Bloor Street E, 3rd Floor, Toronto, ON M4W 3H1 | File No.: 626749236 Registration No.: 20060705 1404 1462 5776 | Equipment, Other | |||
Ontario | Konica Minolta Business Solutions (Canada) Ltd./ Solutions D’Affairs Konica Minolta (Canada) Ltee P.O. Box 37, Station A, Mississauga, ON L5A 2Y9 | File No.: 626020119 Registration No.: 20060609 1818 7029 0696 | Equipment, Other 1 Minolta Bizhub C350 Bizhub Photocopier plus all accessories with all attachments, accessories and proceeds thereof | |||
Ontario | John Deere Limited 1001 Champlain Ave., Suite 401, Burlington, ON L7L 5Z4 | File No.: 624614454 Registration No.: 20060426 1441 8077 6309 | Equipment, Other, Motor Vehicle Included 2006 John Deere Model 624J V.I.N #: DW624JZ604862 | |||
Ontario | Konica Minolta Business Solutions (Canada) Ltd. / Solutions D’Affairs Konica Minolta (Canada) Ltee P.O. Box 37, Station A, Mississauga, ON L5A 2Y9 | File No.: 624108942 Registration No.: 20060407 1559 7029 9848 | Equipment, Other 1 Konica Minolta C250 copier with accessories with all attachments, accessories and proceeds thereof | |||
Ontario | De Lage Landen Financial Services Canada Inc. #100, 1235 North Service Rd. W., Oakville, ON L6M 2W2 | File No.: 622698642 Registration No.: 20060213 1701 1462 1428 | Equipment, Other All goods supplied by the secured party pursuant to a lease with the secured party, together with all parts and accessories thereto and accessions thereto and all replacements or substitutions for such goods and proceeds thereof , including insurance proceeds. |
Jurisdiction | Secured Party Name | Registration Particulars | Collateral Secured | |||
Ontario | IFC (Canada) Inc. 155 Rexdale Blvd., Suite 504, | File No.: 622460673 Registration No.: 20060202 | Equipment, Other Secured Amount: $16,200 3 -40 cubic yard compactor containers | |||
Toronto, ON M9W 5Z8 National Bank of Canada 3901 Highway 7 West Vaughan, Ontario L4L 8L5 | 1449 1862 4876 | |||||
Ontario | Xerox Canada Ltd. 33 Bloor Street E, 3rd Floor, Toronto, ON M4W 3H1 | File No.: 610653879 Registration No.: 20041117 1405 1462 7441 | Equipment, Other | |||
Ontario | Xerox Canada Ltd. 33 Bloor Street E, 3rd Floor, Toronto ON M4W 3H1 | File No.: 644460948 Registration No.: 20080423 1406 1462 7608 | Equipment, Other | |||
Alberta | Irwin Commercial Finance Canada Corporation Suite 300, Park Place 666 Burrard Street, Vancouver BC V6C 2X8 | Registration No.: 05063003999 Date: June 30, 2005 | 1 GB00915 2005 DEAWOO G25P Forklift(s) together with all attachments accessories and replacements substitutions additions and improvements thereto and all proceeds and a right to an insurance payment or other payment that indemnifies or compensates for loss or damage to the collateral or proceeds of the collateral | |||
Alberta | Ford Credit Canada Leasing Company | Registration No.: 06112916736 | 1FTRW14W87FA12821 2007 Ford F150 | |||
P.O. Box 2400, Edmonton AB T5J 5C7 | Date: November 29, 2006 | |||||
Alberta | Ford Credit Canada Leasing Company | Registration No.: 06120426702 | 1FTRW14W87FA12821 2007 Ford F150 | |||
P.O. Box 2400, Edmonton, AB T5J 5C7 | Date: December 4, 2006 | |||||
Alberta | VFS Canada Inc. 73 Industrial Parkway North, Aurora, ON L4G 4C4 | Registration No.: 06120732208 Date: December 7, 2006 | 1M2K189CX7M034253 2007 Mack MR688S together with (1) all present and after-acquired parts, accessions, attachments and replacements thereto; and (2) proceeds | |||
Alberta | Ford Credit Canada Leasing, A division of Canadian | Registration No.: 07022116532 | 1FTPW14V97FA73027 2007 Ford F150 | |||
P.O. Box 2400, Edmonton, AB T5J 5C7 | Date: February 21, 2007 | |||||
Alberta | Wakefield Canada Inc. 3620 Lakeshore Blvd. West, Toronto ON M8W 1P2 | Registration No.: 07090412664 Date: September 4, 2007 | 1 — 1110 Bench Tank Pkg 1135 Litre 1 - 2199UPGD Preset Digital handle upgrade total value $2,165 |
Jurisdiction | Secured Party Name | Registration Particulars | Collateral Secured | |||
Alberta | John Deere Credit Inc. 1001 Champlain Ave, Suite 401, Burlington ON L7L 5Z4 | Registration No.: 08020110008 Date: February 1, 2008 | T00320A156404 2008 John Deere 320 One John Deere 320 Skid Steer together with all attachments, accessories, accessions, replacements, substitutions, additions and improvements thereto and all proceeds of every type, item or kind in any form derived directly or indirectly from any dealing with collateral including without limitation trade-ins, equipment inventory, goods, notes, chattel paper, contract rights, accounts, rental payments, securities, intangibles, documents of title and money and all proceeds of proceeds and a right to any insurance payment and any other payment that indemnifies or compensates for loss or damage to the collateral or the proceeds of the collateral | |||
Alberta | Caterpillar Financial Services Limited | Registration No.: 08021317645 | CAT042DAFDP22837 2005 Caterpillar 420D | |||
700 Dorval Drive, Suite 705, Oakville, ON L6K 3V3 | Date: February 13, 2008 | |||||
British Columbia | Onset Capital Corporation Suite 300, 666 Burrard Street, Vancouver, BC V6C 2X8 | Registration No.: 073007C Date: December 2, 2004 | Portable Buildings, together with all attachments, accessories, accessions replacements, substitutions, additions and improvements there to and all proceeds and a right to any insurance payment or other payment that indemnifies or compensates for loss or damage to the collateral or proceeds | |||
British Columbia | Irwin Commercial Finance Canada Corporation Suite 300, Park Place, 666 Burrard Street, Vancouver, BC V6C 2X8 | Registration No.: 204723C Date: February 24, 2005 | Copiers, together with all attachments, accessories, accessions replacements, substitutions, additions and improvements there to and all proceeds and a right to any insurance payment or other payment that indemnifies or compensates for loss or damage to the collateral or proceeds | |||
Registrations with respect to Waste Services, Inc. | ||||||
Ontario | Citicorp Vendor Finance, Ltd. 123 Front Street West, 16th Floor, Toronto ON M5J 2M2 | File No.: 633154239 Registration No.: 20070301 1154 1862 0990 | Inventory, Equipment, Accounts, Other All leases (as defined in the master sale and assignment agreement dated April 19, 1999 between debtor and secured party) (the “Agreement”) that are purchased by secured party or are assigned to secured party from time to time pursuant to the Agreement, together with (i) any guarantees of the obligations of any lessee under the lease or other security in respect of the leased, (ii) all sums due under the leases or the guarantees or security described in (i) above, (ii) the equipment subject to the leases (and as defined therein) and (iii) all proceeds of the foregoing. | |||
Registrations with respect to Waste Services, Inc. | ||||||
Ontario | KEC Investments Inc. 155 Rexdale Blvd., Suite 504 Toronto, Ontario M9W 5Z8 National Bank of Canada 3901 Highway 7 West Vaughan, Ontario L4L 8L5 | File No.: 618186429 Registration No.: 20050823 1135 1862 4621 | Equipment, Other Secured Amount: $15,000 RP-4260-35 Self Contained Compactor with rear feed |
Jurisdiction | Secured Party Name | Registration Particulars | Collateral Secured | |||
Ontario | XEROX Canada Ltd. 33 Bloor Street East, 3rd Floor, Toronto ON M4W 3H1 | File No.: 625639374 Registration No.: 20060530 1704 1462 7504 | Equipment, Other | |||
Ontario | Honda Canada Finance Inc. 3650 Victoria Park Ave, #302, North York ON L2H 3P7 | File No.: 639907974 Registration No.: 20071015 1951 1531 1303 | Consumer Goods, Equipment Secured Amount : $61,432 Date of Maturity: 06OCT2011 2008 Acura MDX VIN-2HNYD28898H000125 | |||
Registrations with respect to Capital Environmental Resource Inc. | ||||||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 616675217 Registration No.: 20041230 1045 8077 8033 | Equipment Secured Amount: $8,215 2-245-319 Graco Workbench Tank Packages, 22506 Grease Pump, 22578 Oil Pump | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 606812913 Registration No.: 20040628 1444 8077 0668 | Equipment Secured Amount: $3,923 2-237022 Hose Reel, 238457 Meter, 244100 Pump, 244089 Pump | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 604706598 Registration No.: 20040419 1403 8077 7244 | Equipment Secured Amount: $8,163 2-1100 Steel Totes, 2-Fireball Pumps, 2-Hose Reels, 2-Meters, Misc. Accessories | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No:604198116 Registration No.: 20040331 1042 8077 6428 | Equipment Secured Amount: $6,424 2-245-319 Graco Workbench Tank Packages, 2-225-378 Gear Oil Pumps | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 603300006 Registration No.: 20040224 1451 8077 4919 | Equipment Secured Amount: $6,673 2-225378 Gear Oil Pumps, 2-993084 Workbench Tank Packages, 225006 Pump | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 602524854 Registration No.: 20040116 1451 8077 3424 | Equipment Secured Amount: $5,582 2-93-030 Graco 1135 Litre Workbench Tank Packages | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 602205525 Registration No.: 20040102 1742 8077 2937 | Equipment Secured Amount: $16,595 2-Used Workbench Packages, 2-993030 Workbench Tank Packages, 993084 Workbench Tank Package, 225006 Pump, 2-237022 Reels, 2-238503 Meters, 2-225006 Pumps | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 600639678 Registration No.: 20031030 1442 8077 0370 | Equipment Secured Amount: $5,608 2-993030 Workbench Tank Packages | |||
Ontario | Castrol Canada Inc. 3620 Lakeshore Blvd, Toronto, ON M8W 1P2 | File No: 600639831 Registration No.: 20031030 1442 8077 0386 | Equipment Secured Amount: $5,144 2-993-028 Graco Workbench Tank Packages |
Certain Dispositions
Transactions with Affiliates
1. | In November 2002, the Canadian Borrower entered into a put or pay disposal agreement with RCI Environnement Inc. and certain of its affiliates and Intersan Inc. pursuant to which the Canadian Borrower and RCI and its affiliates agreed to deliver certain volumes of waste to the landfills and transfer station of Intersan Inc. over a seven year period. The RCI companies are controlled by Lucien Rémillard, a director of the US Borrower. The Canadian Borrower has issued a letter of credit for Cdn. $4,000,000 to secure its obligation. | |
2. | Pursuant to a subscription agreement dated November 8, 2006 among the US Borrower, Prides Capital Fund 1, LP and others, Prides Capital Fund 1, LP subscribed for $26,500,000 in common stock of the Borrower at $9.50 per share. Pursuant to that agreement, a nominee of Prides, Charlie McCarthy, was, on December 18, 2006, appointed a director of the Borrower for a term ending in 2009. | |
3. | As required by registration rights agreements dated December 15, 2006, the US Borrower filed a registration statement on Form S-3 with the Securities and Exchange Commission on December 21, 2006 to register stock issued in private placements on December 15, 2006 to Westbury (Bermuda) Limited, affiliates of Kelso & Company and Prides Capital Fund 1, LP. | |
4. | The Canadian Borrower leases office premises in Burlington, Ontario from Westbury International (1991) Corporation, a property development company owned by Michael H. DeGroote, a director of the US Borrower. |
as Administrative Agent
Page | ||||
SECTION 1. DEFINED TERMS | 2 | |||
1.1. Definitions. (a) | 2 | |||
1.2. Other Definitional Provisions | 10 | |||
SECTION 2. GUARANTEE | 10 | |||
2.1. Guarantee | 10 | |||
2.2. Rights of Reimbursement, Contribution and Subrogation | 11 | |||
2.3. Amendments, etc. with respect to the Borrower Obligations | 13 | |||
2.4. Guarantee Absolute and Unconditional | 13 | |||
2.5. Reinstatement | 14 | |||
2.6. Payments | 14 | |||
2.7. Withholding Taxes | 14 | |||
SECTION 3. GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL | 15 | |||
SECTION 4. REPRESENTATIONS AND WARRANTIES | 17 | |||
4.1. Representations in Credit Agreement | 17 | |||
4.2. Title; No Other Liens | 17 | |||
4.3. Perfected First Priority Liens | 17 | |||
4.4. Name; Jurisdiction of Organization, etc | 18 | |||
4.5. Inventory and Equipment | 18 | |||
4.6. Farm Products | 18 | |||
4.7. Investment Property | 18 | |||
4.8. Receivables | 19 | |||
4.9. Intellectual Property | 20 | |||
4.10. Vehicles | 22 | |||
4.11. Letter of Credit Rights | 22 | |||
4.12. Commercial Tort Claims | 22 | |||
SECTION 5. COVENANTS | 22 | |||
5.1. Covenants in Credit Agreement | 22 | |||
5.2. Delivery and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property and Deposit Accounts | 23 | |||
5.3. Maintenance of Insurance | 24 | |||
5.4. Payment of Obligations | 24 | |||
5.5. Maintenance of Perfected Security Interest; Further Documentation | 25 | |||
5.6. Changes in Locations, Name, Jurisdiction of Incorporation, etc | 26 | |||
5.7. Notices | 26 | |||
5.8. Investment Property | 26 | |||
5.9. Receivables | 27 |
i
Page | ||||
5.10. Intellectual Property | 28 | |||
5.11. Vehicles | 31 | |||
SECTION 6. REMEDIAL PROVISIONS | 31 | |||
6.1. Certain Matters Relating to Receivables | 31 | |||
6.2. Communications with Obligors; Grantors Remain Liable | 32 | |||
6.3. Pledged Securities | 33 | |||
6.4. Proceeds to be Turned Over To Administrative Agent | 34 | |||
6.5. Application of Proceeds | 34 | |||
6.6. Code and Other Remedies | 35 | |||
6.7. Registration Rights | 36 | |||
6.8. Deficiency | 37 | |||
SECTION 7. THE ADMINISTRATIVE AGENT | 38 | |||
7.1. Administrative Agent’s Appointment as Attorney-in-Fact, etc | 38 | |||
7.2. Duty of Administrative Agent | 39 | |||
7.3. Execution of Financing Statements | 40 | |||
7.4. Authority of Administrative Agent | 40 | |||
7.5. Appointment of Co-Collateral Agents | 40 | |||
SECTION 8. MISCELLANEOUS | 41 | |||
8.1. Amendments in Writing | 41 | |||
8.2. Notices | 41 | |||
8.3. No Waiver by Course of Conduct; Cumulative Remedies | 41 | |||
8.4. Enforcement Expenses; Indemnification | 41 | |||
8.5. Successors and Assigns | 42 | |||
8.6. Set-Off | 42 | |||
8.7. Counterparts | 43 | |||
8.8. Severability | 43 | |||
8.9. Section Headings | 43 | |||
8.10. Integration | 43 | |||
8.11.GOVERNING LAW | 43 | |||
8.12. Submission to Jurisdiction; Waivers | 43 | |||
8.13. Acknowledgments | 44 | |||
8.14. Additional Guarantors | 44 | |||
8.15. Releases | 44 | |||
8.16.WAIVER OF JURY TRIAL | 45 | |||
8.17. Pledged ULC Shares Limitation | 45 |
ii
ANNEXES: | ||
1 | Form of Assumption Agreement | |
SCHEDULES: | ||
1 | Notice Addresses of Guarantors | |
2 | Description of Pledged Investment Property | |
3 | Filings and Other Actions Required to Perfect Security Interests | |
4 | Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office | |
5 | Location of Inventory and Equipment | |
6 | Intellectual Property | |
7 | Vehicles | |
8 | Commercial Tort Claims | |
EXHIBITS: | ||
A | Form of Acknowledgment and Consent | |
B-1 | Form of Intellectual Property Security Agreement | |
B-2 | Form of After-Acquired Intellectual Property Security Agreement |
iii
2
3
4
5
6
7
8
9
10
11
12
13
14
CONTINUING LIABILITY UNDER COLLATERAL
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WASTE SERVICES (CA) INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WASTE SERVICES OF ARIZONA, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WASTE SERVICES OF FLORIDA, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
JACKSONVILLE FLORIDA LANDFILL, INC. | ||||
By: | ||||
Name: | ||||
Title: |
OMNI WASTE OF OSCEOLA COUNTY LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
SLD LANDFILL, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
SANFORD RECYCLING AND TRANSFER, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
SUN COUNTRY MATERIALS, LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
TAFT RECYCLING, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
CAPITAL ENVIRONMENTAL HOLDINGS COMPANY | ||||
By: | ||||
Name: | ||||
Title: |
RAM-PAK COMPACTION SYSTEMS LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
FREEDOM RECYCLING HOLDINGS, LLC | ||||
By: | ||||
Name: | ||||
Title: |
BARCLAYS BANK PLC, as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: |
Guarantee and US Collateral Agreement
[NAME OF ISSUER] | ||||
By | ||||
Name: | ||||
Title: | ||||
Address for Notices: | ||||
Fax: | ||||
A-1
Guarantee and US Collateral Agreement
B-1-1
B-1-2
B-1-3
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
County of | , 2004 |
B-1-4
Guarantee and US Collateral Agreement
B-2-1
B-2-2
B-2-3
B-2-4
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
County of | , 2004 |
B-2-5
Guarantee and US Collateral Agreement
[ADDITIONAL GUARANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
1 | Refer to each Schedule which needs to be supplemented. |
2
as Canadian Collateral Agent
SECTION 1 – DEFINED TERMS | 2 | |||
1.1 Definitions | 2 | |||
1.2 Other Definitional Provisions | 8 | |||
SECTION 2 – [RESERVED] | 9 | |||
SECTION 3 – GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL | 9 | |||
3.1 Grant of Security Interest; Continuing Liability Under Collateral | 9 | |||
SECTION 4 – REPRESENTATIONS AND WARRANTIES | 10 | |||
4.1 Representations in Credit Agreement; Grantor Representations | 11 | |||
4.2 Title; No Other Liens | 11 | |||
4.3 Perfected First Priority Liens | 11 | |||
4.4 Name; Jurisdiction of Organization, Etc | 11 | |||
4.5 Inventory and Equipment | 12 | |||
4.6 Farm Products | 12 | |||
4.7 Investment Property | 12 | |||
4.8 Receivables | 13 | |||
4.9 Intellectual Property | 13 | |||
4.10 Motor Vehicles | 15 | |||
SECTION 5 – COVENANTS | 16 | |||
5.1 Covenants in Credit Agreement | 16 | |||
5.2 Delivery and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property and Deposit Accounts | 16 | |||
5.3 Maintenance of Insurance | 16 | |||
5.4 Payment of Obligations | 17 | |||
5.5 Maintenance of Perfected Security Interest; Further Documentation | 18 | |||
5.6 Changes in Locations, Name, Jurisdiction of Incorporation, Etc | 18 | |||
5.7 Notices | 18 | |||
5.8 Investment Property | 19 | |||
5.9 Receivables | 20 | |||
5.10 Intellectual Property | 20 | |||
SECTION 6 – REMEDIAL PROVISIONS | 23 | |||
6.1 Certain Matters Relating to Receivables | 23 | |||
6.2 Communications with Obligors; Grantors Remain Liable | 23 |
i
6.3 Pledged Securities | 24 | |||
6.4 Proceeds to be Turned Over To Canadian Collateral Agent | 25 | |||
6.5 Application of Proceeds | 25 | |||
6.6 PPSA and Other Remedies | 26 | |||
6.7 Distribution Rights | 27 | |||
6.8 Deficiency | 28 | |||
6.9 Appointment of Receiver | 29 | |||
SECTION 7 – THE CANADIAN COLLATERAL AGENT | 29 | |||
7.1 Canadian Collateral Agent’s Appointment as Attorney-in-Fact, Etc | 29 | |||
7.2 Duty of Canadian Collateral Agent | 31 | |||
7.3 Execution of Financing Statements | 31 | |||
7.4 Authority of Canadian Collateral Agent | 32 | |||
7.5 Appointment of Co-Collateral Agents | 32 | |||
SECTION 8 – MISCELLANEOUS | 32 | |||
8.1 Amendments in Writing | 32 | |||
8.2 Notices | 32 | |||
8.3 No Waiver by Course of Conduct; Cumulative Remedies | 33 | |||
8.4 Enforcement Expenses; Indemnification | 33 | |||
8.5 Judgment Currency | 33 | |||
8.6 Successors and Assigns | 34 | |||
8.7 Permitted Liens | 34 | |||
8.8 Set-Off | 34 | |||
8.9 Counterparts | 35 | |||
8.10 Severability | 35 | |||
8.11 Section Headings | 35 | |||
8.12 Integration | 35 | |||
8.13 Governing Law | 35 | |||
8.14 Submission to Jurisdiction; Waivers | 35 | |||
8.15 Acknowledgments | 36 | |||
8.16 Acknowledgement offondé de pouvoir | 36 | |||
8.17 Additional Grantors | 36 | |||
8.18 Releases | 37 | |||
8.19 Waiver Of Jury Trial | 37 |
ii
iii
2
3
4
5
6
7
8
(i) | all Accounts; | ||
(ii) | all chattel paper; | ||
(iii) | all Deposit Accounts (and all cash, cheques and other negotiable instruments, funds and other evidences of payment held therein); | ||
(iv) | all documents of title; | ||
(v) | all equipment of whatever kind and wherever situated; | ||
(vi) | all Intangibles; | ||
(vii) | all instruments; | ||
(viii) | Insurance; | ||
(ix) | all Intellectual Property, (except that, such grant and assignment shall be by way of security interest only and not an absolute assignment); | ||
(x) | all inventory of whatever kind and wherever situated; | ||
(xi) | all Investment Property; | ||
(xii) | all money; | ||
(xiii) | all Motor Vehicles; | ||
(xiv) | all other personal property; |
9
(xv) | any Collateral Account; |
(xvi) | all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and | ||
(xvii) | to the extent not otherwise included, all other personal property of the Grantor and all proceeds, products, accessions, rents and profits of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing. |
10
11
12
13
14
15
5.1 | Covenants in Credit Agreement. |
5.2 | Delivery and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property and Deposit Accounts. |
5.3 | Maintenance of Insurance. |
16
17
18
19
20
21
22
23
24
25
26
27
28
(i) | in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any cheques, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Canadian Collateral Agent for the purpose of collecting any and all such moneys due under any Receivable or with respect to any other Collateral whenever payable; | ||
(ii) | in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Canadian Collateral Agent may request to evidence the Secured Parties’ security interest in |
29
such Intellectual Property and the goodwill and Intangibles of such Grantor relating thereto or represented thereby; |
(iii) | pay or discharge Taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; | ||
(iv) | execute, in connection with any sale provided for in Section 6.6 or 6.7, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and | ||
(v) | (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Canadian Collateral Agent or as the Canadian Collateral Agent shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Canadian Collateral Agent may deem appropriate; (7) assign any Copyright, Patent, Industrial Design or Trademark (along with the goodwill of the business to which any such Copyright, Patent, Industrial Design, or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Canadian Collateral Agent shall in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Canadian Collateral Agent were the absolute owner thereof for all purposes, and do, at the Canadian Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Canadian Collateral Agent deems necessary to protect, preserve or realize upon the Collateral and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do. | ||
(vi) | Anything in this 7.1(a) to the contrary notwithstanding, the Canadian Collateral Agent agrees that, except as provided in Section 7.1(b), it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be continuing. |
30
31
32
33
34
35
36
37
38
WASTE SERVICES (CA) INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
CAPITAL ENVIRONMENTAL HOLDINGS COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
RAM-PAK COMPACTION SYSTEMS LTD. | ||||
By: | ||||
Name: | ||||
Title: |
39
THE BANK OF NOVA SCOTIA, as Canadian Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: |
40
[NAME OF ISSUER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address | for Notices: | |||
Fax: | ||||
A-1
B-1-1
B-1-2
B-1-3
B-1-4
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
B-1-5
B-1-6
B-2-1
(a) | (i) all trademarks, service marks, trade names, corporate names, company names, business names, trade dress, trade styles, logos, or other indicia of origin or source identification, Internet domain names, trademark and service mark registrations, and applications for trademark or service mark registrations and any new renewals thereof, including, without limitation, each registration and application identified inSchedule 1, (ii) the right to sue or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iii) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof), and (iv) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto, together in each case with the goodwill of the business connected with the use of, and symbolized by, each of the above (collectively, the “Trademarks”); | ||
(b) | (i) all patents, patent applications and patentable inventions, including, without limitation, each issued patent and patent application identified inSchedule 1, (ii) all inventions and improvements described and claimed therein, (iii) the right to sue or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iv) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof), and (v) all reissues, divisions, continuations, continuations-in-part, substitutes, renewals, and extensions thereof, all improvements thereon and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto (collectively, the “Patents”); | ||
(c) | (i) all copyrights, whether or not the underlying works of authorship have been published, including but not limited to copyrights in software and databases, and all works of authorship and other intellectual property rights therein (including, but not limited to, Business Software, as defined in the Intellectual Property Agreement), all copyrights of works based on, incorporated in, derived from or relating to works covered by such copyrights, all right, title and interest to make and exploit all derivative works based on or adopted from works covered by such copyrights, and all copyright registrations and copyright applications, and any renewals or extensions thereof, including, without limitation, each registration and application identified inSchedule 1, (ii) the rights to print, publish and distribute |
B-2-2
any of the foregoing, (iii) the right to sue or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iv) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof), and (v) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto (“Copyrights”); | |||
(d) | all industrial designs, design patents and other designs, all registrations and recordings thereof and all applications in connection therewith including all registrations, recordings and applications identified inSchedule 1, (ii) all records thereof and all reissues, extensions or renewals thereof, (iii) the right to sue or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iv) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof), and (v) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto (“Industrial Designs”); | ||
(e) | (i) all trade secrets and all confidential and proprietary information, including know-how, manufacturing and production processes and techniques, inventions, research and development information, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and information, (ii) the right to sue or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iii) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof), and (iv) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto (collectively, the “Trade Secrets”); | ||
(e) | (i) all licenses or agreements, whether written or oral, providing for the grant by or to any Grantor of: (A) any right to use any Trademark or Trade Secret, (B) any right to manufacture, use, import, export, distribute, offer for sale or sell any invention covered in whole or in part by a Patent, (C) any right under any Copyright including, without limitation, the grant of rights to manufacture, distribute, print, publish, copy, import, export, exploit and sell materials derived from any Copyright including, without limitation, any of the foregoing identified inSchedule 1, and (D) any right under any Industrial Design, (ii) the right to sue or otherwise recover for any and all past, present and future infringements and misappropriations of any of the foregoing, (iii) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past, present or future |
B-2-3
infringements thereof), and (iv) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto; and | |||
(f) | any and all proceeds of the foregoing. |
B-2-4
[NAME OF GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
B-2-5
B-2-6
Annex-1-1
[ADDITIONAL GRANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
1 | Refer to each Schedule which needs to be supplemented. |
Annex-1-2
A-1-1
A-2-1
WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title: |
B-1
EXHIBIT B
B-2
to EXHIBIT B
B-3
C-1
Name | Office | Date | Signature | |||||||||
Name: | Name: | |
Title: | Title: |
C-2
C-3
C-4
C-5
D-1-1
D-2-1
1. | Assignor: | |||
2. | Assignee: | [and is an affiliate/Related Fund/Control Investment Affiliate1] | ||
3. | Borrowers: | Waste Services (CA) Inc. and Waste Services, Inc. | ||
4. | Administrative Agent: | Barclays Bank PLC, as the administrative agent under the Credit Agreement | ||
5. | Credit Agreement: | Credit Agreement, dated as of October 8, 2008 among Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”), Waste Services, Inc., a Delaware corporation (the “US Borrower” and together with the Canadian Borrower, the “Borrowers”), the Lenders from time to time party thereto, Barclays Bank PLC, as administrative agent, and the other agents party thereto | ||
6. | Assigned Interest: |
1 | Select as applicable |
E-1
Aggregate Amount of | Amount of | Percentage Assigned | ||||
Commitment/Loans | Commitment/Loans | of | ||||
Facility Assigned | for all Lenders | Assigned | Commitment/Loans2 | |||
3 | $ | $ | % | |||
$ | $ | % | ||||
$ | $ | % |
[NAME OF ASSIGNOR] | [NAME OF ASSIGNEE] | |||||
Notices: | Notices: | |||||
Attention: | Attention: | |||||
Telecopier: | Telecopier: | |||||
with a copy to: | with a copy to: | |||||
Attention: | Attention: | |||||
Telecopier: | Telecopier: | |||||
Wire Instructions: | Wire Instructions: |
2 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. | |
3 | Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Revolving Credit Commitment”, “Term Loan Commitment”, etc.) |
E-2
ASSIGNOR | ||||
[NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE | ||||
[NAME OF ASSIGNEE] | ||||
By: | ||||
Title: |
[Consented to and] Accepted: | ||||
BARCLAYS BANK PLC, | ||||
as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Accepted: | ||||
THE BANK OF NOVA SCOTIA, | ||||
as Canadian Agent | ||||
By: | ||||
Name: | ||||
Title:] | ||||
[Consented to:] | ||||
[WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title:] | ||||
[WASTE SERVICES (CA) INC. | ||||
By: | ||||
Name: | ||||
Title:] |
E-3
[Consented to:] | ||||
[[ ], | ||||
as Issuing Lender | ||||
By: | ||||
Name: | ||||
Title:] | ||||
[Consented to:] | ||||
[[ ], | ||||
as Swing Line Lender | ||||
By: | ||||
Name: | ||||
Title:] |
E-4
AND ASSUMPTION AGREEMENT
1. | Representations and Warranties. |
1.1 | Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment (herein collectively the “Loan Documents”), or any collateral thereunder, (iii) the financial condition of any Borrower, any of their respective Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by any Borrower, any of their respective Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. | ||
1.2 | Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision, and (v) if it is a Non-US Lender, attached to the Assignment is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. |
E-5
2. | Payments. All payments with respect to the Assigned Interests shall be made on the Effective Date as follows: from and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. |
3. | General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment. This Assignment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to conflict of laws principles thereof. |
E-6
F-1-1
F-2-1
F-3-1
$[ ] | New York, New York | |
, 200_ |
G-1-1
[WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title:] | ||||
[WASTE SERVICES (CA), INC. | ||||
By: | ||||
Name: | ||||
Title:] |
G-1-2
to Term Note
Amount | Amount of Base Rate | |||||||||||
Amount of Base Rate | Converted to | Amount of Principal of | Loans Converted to | Unpaid Principal Balance | ||||||||
Date | Loans | Base Rate Loans | Base Rate Loans Repaid | Eurodollar Loans | of Base Rate Loans | Notation Made By | ||||||
G-1-3
to Term Note
Amount Converted | Interest Period and | Amount of Principal | Amount of Eurodollar | Unpaid Principal | ||||||||||
Amount of | to Eurodollar | Eurodollar Rate with | of Eurodollar Loans | Loans Converted to | Balance of | Notation | ||||||||
Date | Eurodollar Loans | Loans | Respect Thereto | Repaid | Base Rate Loans | Eurodollar Loans | Made By | |||||||
G-1-4
$ | New York, New York | |
, 200_ |
G-2-1
[WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title:] | ||||
[WASTE SERVICES (CA), INC. | ||||
By: | ||||
Name: | ||||
Title:] |
G-2-2
to Revolving Credit Note
Amount | Amount of Base Rate | |||||||||||
Amount of Base Rate | Converted to | Amount of Principal of | Loans Converted to | Unpaid Principal Balance | ||||||||
Date | Loans | Base Rate Loans | Base Rate Loans Repaid | Eurodollar Loans | of Base Rate Loans | Notation Made By | ||||||
G-2-3
to Revolving Credit Note
Amount Converted | Interest Period and | Amount of Principal | Amount of Eurodollar | Unpaid Principal | ||||||||||
Amount of | to Eurodollar | Eurodollar Rate with | of Eurodollar Loans | Loans Converted to | Balance of | Notation | ||||||||
Date | Eurodollar Loans | Loans | Respect Thereto | Repaid | Base Rate Loans | Eurodollar Loans | Made By | |||||||
G-2-4
to Canadian Revolving Credit Note
Amount of Bankers’ | ||||||||||||||
Interest Period and | Amount of Principal | Acceptances | Unpaid Principal | |||||||||||
Amount | Canadian Prime Rate | of | Converted to | Balance | ||||||||||
Amount of Bankers’ | Converted to | with | Bankers’ | Canadian Prime Rate | of Bankers’ | Notation Made | ||||||||
Date | Acceptances | Bankers’ Acceptances | Respect Thereto | Acceptances Repaid | Loans | Acceptances | By | |||||||
G-2-5
to Canadian Revolving Credit Note
Amount of Principal | ||||||||||||
Amount Converted | of Canadian Prime | Amount of Canadian | Unpaid Principal | |||||||||
Amount of | to Canadian Prime | Loans | Prime Rate | Balance of | ||||||||
Canadian Prime Rate | Rate | Rate | Loans Converted to | Canadian Prime Rate | Notation | |||||||
Date | Loans | Loans | Repaid | Bankers’ Acceptance | Loans | Made By | ||||||
G-2-6
$ | New York, New York | |
, 200_ |
G-3-1
[WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title:] | ||||
[WASTE SERVICES (CA), INC. | ||||
By: | ||||
Name: | ||||
Title:] |
G-3-2
to Swing Line Note
Amount of | Amount of Principal of Swing Line | Unpaid Principal Balance of Swing | ||||||
Date | Swing Line Loans | Loans Repaid | Line Loans | Notation Made By | ||||
G-3-3
WASTE SERVICES (CA) INC. | ||||||
By: | ||||||
Name: | ||||||
Title: |
G-4-1
H-1
[NAME OF NON-U.S. LENDER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
H-2
I-1
Name of Lender | ||||||
By: | ||||||
Title: |
Accepted and agreed: | ||||
WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WASTE SERVICES (CA), INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
BARCLAYS BANK PLC, as | ||||
Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: |
I-2
1. | Name of Lender: | |||||
Notice Address: | ||||||
Attention: | ||||||
Telephone: | ||||||
Facsimile: | ||||||
2. | Revolving Credit US/CA Commitment: | |||||
3. | Revolving Credit CA Commitment: | |||||
4. | US Term Loan Commitment: | |||||
5. | Canadian Term Loan Commitment: | |||||
6. | Swing Line Commitment: |
I-3
as Administrative Agent
745 Seventh Avenue
New York, New York 10019
Attention: [ ]]
as Canadian Agent
[ ]
[ ]
Attention: [ ]]
[Waste Services (CA) Inc.]
1. | The Business Day of the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan] is [ ___, ___]. |
J-1
2. | The Type of the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan] is a [Base Rate Loan] [Canadian Prime Rate Loan] [Eurodollar Loan] [Bankers’ Acceptance]. | ||
3. | The aggregate amount of the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan] is $[ ]. | ||
4. | [The initial Interest Period for each [Eurodollar Loan] [Bankers’ Acceptance] made as part of the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan] is [___] month[s].] |
J-2
Very truly yours, WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WASTE SERVICES (CA) INC. | ||||
By: | ||||
Name: | ||||
Title: |
J-3
1
K-2
WASTE SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
WASTE SERVICES (CA) INC. | ||||
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||
K-3