FIRST AMENDMENT TO TERM LOAN AGREEMENT
Exhibit 4.1
EXECUTION VERSION
FIRST AMENDMENT TO TERM LOAN AGREEMENT
This FIRST AMENDMENT TO TERM LOAN AGREEMENT (this First Amendment) is made and entered into as of the 6th day of May, 2013, by and among WASTE CONNECTIONS, INC., a Delaware corporation (the Parent), each other Borrower under the Term Loan Agreement referred to below, each of the Lenders under such Term Loan Agreement, and BANK OF AMERICA, N.A., as Administrative Agent under such Term Loan Agreement.
WHEREAS, the parties hereto are party to that certain Term Loan Agreement, dated as of October 25, 2012 (as the same may be amended and in effect from time to time, the Term Loan Agreement); and
WHEREAS, the Borrowers have requested that each of the Lenders and the Administrative Agent agree, and the Lenders and the Administrative Agent have agreed, on the terms and subject to the conditions set forth herein, to make certain amendments to the Term Loan Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions; Loan Document. Capitalized terms used in this First Amendment without definition shall have the meaning assigned to such terms in the Term Loan Agreement. This First Amendment shall constitute a Loan Document for all purposes of the Term Loan Agreement and the other Loan Documents.
2. Amendment to Section 1.01 (Defined Terms) of the Term Loan Agreement. Section 1.01 of the Term Loan Agreement is hereby amended by amending and restating the definition of Applicable Rate as follows:
Applicable Rate means, from time to time, the following percentages per annum, based upon the Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.04(c):
Level | Leverage Ratio | LIBOR Rate Loans | Base Rate Loans | |||||||
I | ³ 3.25:1.00 | 2.375 | % | 1.375 | % | |||||
II | ³ 3.00:1.00 and <3.25:1.00 | 1.875 | % | 0.875 | % | |||||
III | ³ 2.50:1.00 and <3.00:1.00 | 1.750 | % | 0.750 | % | |||||
IV | ³ 1.75:1.00 and <2.50:1.00 | 1.500 | % | 0.500 | % | |||||
V | < 1.75:1.00 | 1.375 | % | 0.375 | % |
Any increase or decrease in the Applicable Rate resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is received by the Administrative Agent pursuant to Section 6.04(c); provided, however, that if a Compliance Certificate is not delivered within ten (10) days after the time periods specified in such Section 6.04(c), then Level I (as set forth in the table above) shall apply as of the first Business Day thereafter, subject to prospective adjustment upon actual receipt of such Compliance Certificate.
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).
3. No Waiver. Nothing contained in this First Amendment shall be deemed to (a) constitute a waiver of any Default or Event of Default that may heretofore or hereafter occur or have occurred and be continuing or, except to the extent set forth in Section 2 above, modify any provision of the Term Loan Agreement or any other Loan Document, or (b) give rise to any defenses or counterclaims to the Administrative Agents or any Lenders right to compel payment of the Obligations when due or to otherwise enforce their respective rights and remedies under the Term Loan Agreement and the other Loan Documents.
4. Conditions to Effectiveness. This First Amendment shall become effective on the first date upon which the Administrative Agent (or its counsel) receives from each of the Borrowers and each of the Lenders (i) a counterpart of this First Amendment, signed on behalf of such Person, or (ii) written evidence satisfactory to the Administrative Agent (which may include an electronic transmission of a signed signature page of this First Amendment) that such Person has signed a counterpart of this First Amendment.
5. Legal Fees. The Parent shall promptly pay, upon receiving an invoice therefor, all reasonable fees, charges and disbursements of Goulston & Storrs, PC, counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) incurred in connection with this First Amendment.
6. Representations and Warranties. The Borrowers represent and warrant to the Administrative Agent and the Lenders as follows:
(a) The execution and delivery of this First Amendment and the performance of this First Amendment, the transactions contemplated hereby and the Term Loan Agreement as amended hereby (i) are within the corporate (or equivalent company or partnership) authority of each Borrower, (ii) have been duly authorized by all necessary corporate (or equivalent company or partnership) proceedings, (iii) do not conflict with or result in any material breach or contravention of any provision of law, statute, rule or regulation to which any Borrower is subject or any judgment, order, writ, injunction, license or permit applicable to any Borrower so as to materially adversely affect the assets, business or any activity of the Borrowers, and (iv) do not conflict with any provision of the Organization Documents of any Borrower or any agreement or other instrument binding upon them including, without limitation, those documents executed and/or delivered in connection with any Covenanted Senior Debt.
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(b) The execution, delivery and performance of this First Amendment will result in valid and legally binding obligations of the Borrowers enforceable against each in accordance with the terms and provisions hereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
(c) The representations and warranties made by the Borrowers in the Loan Documents are true and correct in all material respects (or in all respects if the applicable representation or warranty is already qualified by concepts of materiality) on and as of the date hereof, as though made on the date hereof, except to the extent that any such representation or warranty specifically refers to an earlier date, in which case it shall be true and correct in such respects as of such earlier date, and except that for purposes of this Section 6(c), the representations and warranties contained in the first sentence of subsection (a) of Section 5.04 of the Term Loan Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 6.04 of the Term Loan Agreement.
(d) After giving effect to this First Amendment, no Default or Event of Default has occurred and is continuing.
7. Ratification, etc. Except as expressly amended by this First Amendment, the Term Loan Agreement, the other Loan Documents and all documents, instruments and agreements related thereto are hereby ratified and confirmed in all respects and shall continue in full force and effect. This First Amendment and the Term Loan Agreement shall hereafter be read and construed together as a single document, and all references in the Term Loan Agreement, any other Loan Document or any agreement or instrument related to the Term Loan Agreement shall hereafter refer to the Term Loan Agreement as amended by this First Amendment.
8. GOVERNING LAW. THIS FIRST AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS FIRST AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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9. Counterparts. This First Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this First Amendment by telecopy or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this First Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the undersigned has duly executed this First Amendment to Term Loan Agreement as a sealed instrument as of the date first set forth above.
BORROWERS: |
WASTE CONNECTIONS, INC. |
ADVANCED SYSTEMS PORTABLE RESTROOMS, INC. |
ALASKA WASTE-INTERIOR, LLC |
ALASKA WASTE-KENAI PENINSULA, LLC |
ALASKA WASTE MAT-SU, LLC |
AMERICAN DISPOSAL COMPANY, INC. |
AMERICAN SANITARY SERVICE, INC. |
ANDERSON COUNTY LANDFILL, INC. |
ANDERSON REGIONAL LANDFILL, LLC |
BITUMINOUS RESOURCES, INC. |
BRENT RUN LANDFILL, INC. |
BROADACRE LANDFILL, INC. |
BUTLER COUNTY LANDFILL, INC. |
CALPET, LLC |
CAMINO REAL ENVIRONMENTAL CENTER, INC. |
CAPITAL REGION LANDFILLS, INC. |
CARPENTER WASTE HOLDINGS, LLC |
CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC. |
CHIQUITA CANYON, INC. |
CHIQUITA CANYON, LLC |
CLIFTON ORGANICS, LLC |
COLD CANYON LAND FILL, INC. |
COLUMBIA RESOURCE CO., L.P. |
COMMUNITY REFUSE DISPOSAL INC. |
CONTRACTORS WASTE SERVICES, INC. |
CORRAL DE PIEDRA LAND COMPANY |
COUNTY WASTE ULSTER, LLC |
COUNTY WASTE AND RECYCLING SERVICE, INC. |
COUNTY WASTE TRANSFER CORP. |
CRI HOLDINGS, LLC |
CURRY TRANSFER & RECYCLING, INC. |
D. M. DISPOSAL CO., INC. |
DELTA CONTRACTS, LLC |
DENVER REGIONAL LANDFILL, INC. |
DIVERSIFIED BUILDINGS, L.L.C. |
EL PASO DISPOSAL, LP |
ELKO SANITATION COMPANY |
EMPIRE DISPOSAL, INC. |
ENVIRONMENTAL TRUST COMPANY |
ENTECH ALASKA LLC |
EVERGREEN DISPOSAL, INC. |
FINLEY-BUTTES LIMITED PARTNERSHIP |
FINNEY COUNTY LANDFILL, INC. |
FORT ANN TRANSFER STATION, LLC |
FRONT RANGE LANDFILL, INC. |
G & P DEVELOPMENT, INC. |
GREEN WASTE SOLUTIONS OF ALASKA, LLC |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
HARDIN SANITATION, INC. |
HAROLD LEMAY ENTERPRISES, INCORPORATED |
HIGH DESERT SOLID WASTE FACILITY, INC. |
HUDSON VALLEY WASTE HOLDING, INC. |
ISLAND DISPOSAL, INC. |
J BAR J LAND, INC. |
LACASSINE HOLDINGS, L.L.C. |
LAKESHORE DISPOSAL, INC. |
LAUREL RIDGE LANDFILL, L.L.C. |
LEALCO, INC. |
LFC, INC. |
MADERA DISPOSAL SYSTEMS, INC. |
MAMMOTH DISPOSAL COMPANY |
MANAGEMENT ENVIRONMENTAL NATIONAL, INC. |
MASON COUNTY GARBAGE CO., INC. |
MBO, LLC |
MDSI OF LA, INC. |
MILLENNIUM WASTE INCORPORATED |
MISSION COUNTRY DISPOSAL |
MORRO BAY GARBAGE SERVICE |
MURREYS DISPOSAL COMPANY, INC. |
NEBRASKA ECOLOGY SYSTEMS, INC. |
NOBLES COUNTY LANDFILL, INC. |
NORTHWEST CONTAINER SERVICES, INC. |
OKLAHOMA CITY WASTE DISPOSAL, INC. |
OKLAHOMA LANDFILL HOLDINGS, INC. |
OSAGE LANDFILL, INC. |
PIERCE COUNTY RECYCLING, COMPOSTING AND DISPOSAL, LLC |
POTRERO HILLS LANDFILL, INC. |
PRAIRIE DISPOSAL, LLC |
PRAIRIE LIQUIDS, LLC |
PSI ENVIRONMENTAL SERVICES, INC. |
PSI ENVIRONMENTAL SYSTEMS, INC. |
R360 ARTESIA, LLC |
R360 CLACO, LLC |
R360 ENVIRONMENTAL SOLUTIONS, LLC |
R360 ENVIRONMENTAL SOLUTIONS HOLDINGS, INC. |
R360 ES HOLDINGS, INC. |
R360 HITCHCOCK, LLC |
R360 LOGISTICS, LLC |
R360 OKLAHOMA, LLC |
R360 PERMIAN BASIN, LLC |
R360 SHUTE CREEK, LLC |
R360 SILO, LLC |
R360 WILLISTON BASIN, LLC |
R.A. BROWNRIGG INVESTMENTS, INC. |
R.J.C. TRUCKING CO. |
RAILROAD AVENUE DISPOSAL, LLC |
RED CARPET LANDFILL, INC. |
RH FINANCIAL CORPORATION |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
RICH VALLEY, LLC |
RKS HOLDING, CORP. |
SAN LUIS GARBAGE COMPANY |
SANIPAC, INC. |
SCOTT SOLID WASTE DISPOSAL COMPANY |
SCOTT WASTE SERVICES, LLC |
SEABREEZE RECOVERY, INC. |
SEDALIA LAND COMPANY |
SIERRA HOLDING GROUP, LLC |
SIERRA PROCESSING, LLC |
SILVER SPRINGS ORGANICS L.L.C. |
SJ RECLAMATION, INC. |
SKB ENVIRONMENTAL, INC. |
SKB (AUSTIN) ENVIRONMENTAL, LLC |
SKB RECYCLING, LLC |
SOUTH COUNTY SANITARY SERVICE, INC. |
STERLING AVENUE PROPERTIES, LLC |
STUTZMAN REFUSE DISPOSAL INC. |
TACOMA RECYCLING COMPANY, INC. |
TENNESSEE WASTE MOVERS, INC. |
US LIQUIDS OF LA, L.P. |
VOORHEES SANITATION, L.L.C. |
WASCO COUNTY LANDFILL, INC. |
WASTE CONNECTIONS MANAGEMENT SERVICES, INC. |
WASTE CONNECTIONS OF ALABAMA, INC. |
WASTE CONNECTIONS OF ALASKA, INC. |
WASTE CONNECTIONS OF ARIZONA, INC. |
WASTE CONNECTIONS OF ARKANSAS, INC. |
WASTE CONNECTIONS OF CALIFORNIA, INC. |
WASTE CONNECTIONS OF CANADA HOLDINGS, INC. |
WASTE CONNECTIONS OF COLORADO, INC. |
WASTE CONNECTIONS OF GEORGIA, INC. |
WASTE CONNECTIONS OF IDAHO, INC. |
WASTE CONNECTIONS OF ILLINOIS, INC. |
WASTE CONNECTIONS OF IOWA, INC. |
WASTE CONNECTIONS OF KANSAS, INC. |
WASTE CONNECTIONS OF KENTUCKY, INC. |
WASTE CONNECTIONS OF LEFLORE, LLC |
WASTE CONNECTIONS OF LOUISIANA, INC. |
WASTE CONNECTIONS OF MINNESOTA, INC. |
WASTE CONNECTIONS OF MISSISSIPPI DISPOSAL SERVICES, LLC |
WASTE CONNECTIONS OF MISSISSIPPI, INC. |
WASTE CONNECTIONS OF MONTANA, INC. |
WASTE CONNECTIONS OF NEBRASKA, INC. |
WASTE CONNECTIONS OF NEW MEXICO, INC. |
WASTE CONNECTIONS OF NORTH CAROLINA, INC. |
WASTE CONNECTIONS OF OKLAHOMA, INC. |
WASTE CONNECTIONS OF OREGON, INC. |
WASTE CONNECTIONS OF SOUTH CAROLINA, INC. |
WASTE CONNECTIONS OF SOUTH DAKOTA, INC. |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
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WASTE CONNECTIONS OF TENNESSEE, INC. | ||
WASTE CONNECTIONS OF TEXAS, LLC | ||
WASTE CONNECTIONS OF THE CENTRAL VALLEY, INC. | ||
WASTE CONNECTIONS OF UTAH, INC. | ||
WASTE CONNECTIONS OF WASHINGTON, INC. | ||
WASTE CONNECTIONS OF WYOMING, INC. | ||
WASTE CONNECTIONS TRANSPORTATION COMPANY, INC. | ||
WASTE REDUCTION SERVICES, L.L.C. | ||
WASTE SERVICES OF N.E. MISSISSIPPI, INC. | ||
WASTE SOLUTIONS GROUP OF SAN BENITO, LLC | ||
WCI-WHITE OAKS LANDFILL, INC. | ||
WEST BANK ENVIRONMENTAL SERVICES, INC. | ||
WEST COAST RECYCLING AND TRANSFER, INC. | ||
WYOMING ENVIRONMENTAL SERVICES, INC. | ||
YAKIMA WASTE SYSTEMS, INC. | ||
By: | /s/ Worthing F. Jackman | |
Name: | Worthing F. Jackman | |
Title: | Authorized Signatory of Each of the Above-Listed Borrowers |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
BANK OF AMERICA, N.A., as Administrative Agent and a Lender | ||||
By: | /s/ Maria F. Maia | |||
Name: | Maria F. Maia | |||
Title: | Managing Director |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
WELLS FARGO BANK, NA., as a Lender | ||||
By: | /s/ Hamid Hussain | |||
Name: | Hamid Hussain | |||
Title: | Senior Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
JPMORGAN CHASE BANK, N.A., as a Lender | ||||
By: | /s/ Gregory T. Martin | |||
Name: | Gregory T. Martin | |||
Title: | Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||||
By: | /s/ Philip K. Liebscher | |||
Name: | Philip K. Liebscher | |||
Title: | Senior Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
Union Bank, N.A., as a Lender | ||||
By: | /s/ Sandra Cortes | |||
Name: | Sandra Cortes | |||
Title: | Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
Sumitomo Mitsui Banking Corporation, as a Lender | ||||
By: | /s/ David W. Kee | |||
Name: | David W. Kee | |||
Title: | Managing Director |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
Compass Bank, as a Lender | ||||
By: | /s/ Michael Dixon | |||
Name: | Michael Dixon | |||
Title: | Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
Branch Banking and Trust Company, as a Lender | ||||
By: | /s/ Elizabeth Willis | |||
Name: | Elizabeth Willis | |||
Title: | Assistant Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
COBANK, ACB, as a Lender | ||||
By: | /s/ Bryan Ervin | |||
Name: | Bryan Ervin | |||
Title: | Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)
Comerica Bank, as a Lender | ||||
By: | /s/ Erik McKay | |||
Name: | Erik McKay | |||
Title: | Vice President |
Signature Pages to First Amendment to Term Loan Agreement (BOA/WCN)