EX-10.1 Credit Agreement



 





EIGHTH AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of October 16, 2006




     This EIGHTH AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT (together with all
Exhibits, Schedules and Annexes hereto, this “Amendment”) is among WASTE SERVICES (CA)
INC., an Ontario corporation formerly known as CAPITAL ENVIRONMENTAL RESOURCE INC./RESSOURCES
ENVIRONNEMENTALES CAPITAL INC. (“WSCI”), WASTE SERVICES, INC., a Delaware corporation (the
“Borrower”), and LEHMAN COMMERCIAL PAPER INC., as administrative agent for the Lenders (in
such capacity, the “Administrative Agent”).



PRELIMINARY STATEMENTS:




     A. The Borrower, WSCI, the Lenders, the Administrative Agent, Lehman Brothers Inc., as
Arranger, CIBC World Markets Corp., as Syndication Agent, Bank of America, N.A., as Documentation
Agent, and Canadian Imperial Bank of Commerce, as Canadian Agent, entered into an Amended and
Restated Credit Agreement, dated as of April 30, 2004 (as amended, restated, modified or
supplemented prior to the date hereof, and together with all Annexes, Exhibits and Schedules
thereto, the “Credit Agreement”; capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit Agreement).



     B. The Borrower and WSCI have advised the Administrative Agent and the Lenders that they
desire to amend the Credit Agreement to permit the Allied Waste Asset Swap (as defined herein) and
allow for the add-back of certain legal expenses to Consolidated EBITDA as more specifically set
forth herein and each of the Administrative Agent and the Required Lenders are, on the terms and
conditions stated below, willing to grant such request.



     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


1. AmendmentUpon the terms and subject to the conditions set forth herein and in
reliance on the representations and warranties of the Loan Parties set forth herein, the Credit
Agreement is hereby amended as follows:




          (a) The following new definitions are hereby added to Section 1.1 of the Credit Agreement in
the appropriate alphabetical order:




     ‘“Allied Waste Asset Swap”: the
substantially simultaneous consummation of the
acquisition by the Borrower of certain south Florida
operations of Allied Waste Industries, Inc.,
substantially on the terms set forth in that certain
Asset Purchase Agreement, dated as of July 19,
2006, between Waste Services, Inc. and Allied



 









 





Waste Industries, Inc. for $61,000,000 in cash (with
a potential future payment of $2,000,000) and the
sale by the Borrower of its Arizona operations to
Allied Waste Industries, Inc., substantially on the
terms set forth in that certain Asset Purchase
Agreement dated as of July 19, 2006, between Waste
Services, Inc. and Allied Waste Industries, Inc. for
$53,000,000 in cash.”



          (b) The definition of “Consolidated EBITDA” set forth in Section 1.1 of the Credit Agreement
is hereby amended to (i) replace the “and” immediately preceding clause (k) with a “,” and (ii) add
the following clause immediately following the end of clause (k): “and (l) one-time charges and
expenses incurred after June 30, 2006 and prior to March 31 2007, not to exceed $6,000,000, in
respect of fees and expenses incurred in connection with litigation involving Waste Management,
Inc.”.




          (c) Section 7.5 of the Credit Agreement is hereby amended to (i) delete the word “and” at the
end of clause (g), (ii) re-letter clause (h) as clause (i) and (iii) add the following new clause
(h): “(h) Allied Waste Asset Swap; and”.




2. Conditions to Effectiveness.




     The effectiveness of the amendments contained in Section 1 hereof is conditioned upon
satisfaction of the following conditions precedent (the date on which all such conditions have been
satisfied being referred to herein as the “Amendment Effective Date”):



          (a) the Administrative Agent shall have (i) executed this amendment and shall have received
signed, written authorization from the Required Lenders to execute this Amendment on behalf of each
such Lender, (ii) received counterparts of this Amendment signed by each of WSCI and the Borrower,
and (iii) received counterparts of the consent of the Guarantors attached hereto as Annex 1 (the
“Consent”) executed by each of the Guarantors;




          (b) each of the representations and warranties in Section 3 below shall be true and correct in
all material respects on and as of the Amendment Effective Date;




          (c) the Administrative Agent shall have received payment in immediately available funds of all
expenses incurred by the Administrative Agent (including, without limitation, legal fees)
reimbursable under the Credit Agreement and for which invoices have been presented; and




          (d) the Administrative Agent shall have received such other documents, instruments,
certificates, opinions and approvals as it may reasonably request.



3. Representations and WarrantiesEach of WSCI and the Borrower represent and warrants
jointly and severally to the Administrative Agent and the Lenders as follows:




          (a) Authority. Each of WSCI and the Borrower has the requisite corporate or other
organizational power and authority to execute and deliver this
Amendment and to perform


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its
obligations hereunder and under the Credit Agreement (as amended hereby). Each of the Guarantors
has the requisite corporate or other organizational power and authority to execute and deliver the
Consent. The execution, delivery and performance by each of WSCI and the Borrower of this
Amendment and by the Guarantors of the Consent, and the performance by each of WSCI, the Borrower
and each other Loan Party of the Credit Agreement (as amended hereby) and each other Loan Document
to which it is a party, in each case, have been authorized by all necessary corporate or other
organizational action of such Person, and no other corporate or other organizational proceedings on
the part of each such Person is necessary to consummate such transactions.




          (b) Enforceability. This Amendment has been duly executed and delivered on behalf of
each of WSCI and the Borrower. The Consent has been duly executed and delivered by each of the
Guarantors. Each of this Amendment, the Consent and, after giving effect to this Amendment, the
Credit Agreement and the other Loan Documents, (i) is the legal, valid and binding obligation of
each Loan Party party hereto and thereto, enforceable against such Loan Party in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or at law) and (ii) is
in full force and effect. Neither the execution, delivery or performance of this Amendment or of
the Consent or the performance of the Credit Agreement (as amended hereby), nor the performance of
the transactions contemplated hereby or thereby, will adversely affect the validity, perfection or
priority of the Administrative Agent’s Lien on any of the Collateral or its ability to realize
thereon. This Amendment is effective to amend the Credit Agreement as provided therein.




          (c) Representations and Warranties. After giving effect to this Amendment, the
representations and warranties contained in the Credit Agreement and the other Loan Documents
(other than any such representations and warranties that, by their terms, are specifically made as
of a date other than the date hereof) are true and correct in all material respects on and as of
the date hereof as though made on and as of the date hereof.




          (d) No Conflicts. Neither the execution and delivery of this Amendment or the
Consent, nor the consummation of the transactions contemplated hereby and thereby, nor the
performance of and compliance with the terms and provisions hereof or of the Credit Agreement (as
amended hereby) by any Loan Party will, at the time of such performance, (a) violate or conflict
with any provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Person, (b) violate, contravene or materially
conflict with any Requirement of Law or Contractual Obligation (including, without limitation,
Regulation U), except for any violation, contravention or conflict which could not reasonably be
expected to have a Material Adverse Effect or (c) result in or require the creation of any Lien
(other than those permitted by the Loan Documents) upon or with respect to its properties. No
consent or authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the transactions
contemplated hereby.




          (e) No Default. Both before and after giving effect to this Amendment, no event has
occurred and is continuing that constitutes a Default or Event of Default.




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4. Reference to and Effect on Credit Agreement




          (a) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement
to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference
to the Credit Agreement as modified hereby. This Amendment is a Loan Document.




          (b) Except as specifically modified above, the Credit Agreement and the other Loan Documents
are and shall continue to be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Security Documents and all of the
Collateral described therein do and shall continue to secure the payment of all Obligations under
and as defined therein, in each case as modified hereby.




          (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any Secured Party under any
of the Loan Documents, nor, except as expressly provided herein, constitute a waiver or amendment
of any provision of any of the Loan Documents.



5. CounterpartsThis Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile
shall be effective as delivery of a manually executed counterpart of this Amendment.



6. SeverabilityAny provision of this Amendment that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.



7. Governing LawThis Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.



[Remainder of page intentionally left blank]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective officers as of the day and year first above written.



	 	 	 	 	 
	 	WASTE SERVICES, INC., as Borrower

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Executive Vice President,
General Counsel & Secretary 	 
	 



	 	 	 	 	 
	 	WASTE SERVICES (CA) INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President & Secretary 	 
	 



	 	 	 	 	 
	 	LEHMAN COMMERCIAL PAPER INC., as Administrative Agent

 	 
	 	By:  	/s/ Ritam Bhalla
 	 
	 	 	Name:  	Ritam Bhalla 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature Page]


 









 








Annex 1




CONSENT OF GUARANTORS



Each of the undersigned is a Guarantor of the Obligations of the Borrower and/or of WSCI under the
Credit Agreement and hereby (a) consents to the foregoing Amendment, (b) acknowledges that
notwithstanding the execution and delivery of the foregoing Amendment, the obligations of each of
the undersigned Guarantors are not impaired or affected and all guaranties given to the holders of
Obligations and all Liens granted as security for the Obligations continue in full force and
effect, and (c) confirms and ratifies its obligations under each of the Loan Documents executed by
it. Capitalized terms used herein without definition shall have the meanings given to such terms
in the Amendment to which this Consent is attached or in the Credit Agreement referred to therein,
as applicable.




          IN WITNESS WHEREOF, each of the undersigned has executed and delivered this Consent of
Guarantors as of the 16th day of October 2006.



[Signature pages follow]





 









 








	 	 	 	 	 
	 	WASTE SERVICES OF ARIZONA, INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	CACTUS WASTE SYSTEMS, LLC

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Manager 	 
	 



	 	 	 	 	 
	 	WASTE SERVICES OF FLORIDA, INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	JACKSONVILLE FLORIDA LANDFILL, INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	JONES ROAD LANDFILL AND RECYCLING, LTD.,

     by Jacksonville Florida Landfill, Inc.,
its General Partner

 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 



[Signature Page]


 









 






	 	 	 	 	 



	 	 	 	 	 
	 	LIBERTY WASTE, LLC

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	OMNI WASTE OF OSCEOLA COUNTY LLC

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Manager 	 
	 



	 	 	 	 	 
	 	SANFORD RECYCLING AND TRANSFER, INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	SUN COUNTRY MATERIALS, LLC

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	TAFT RECYCLING, INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	WASTE SERVICES LIMITED PARTNER, LLC

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WS GENERAL PARTNER, LLC,

     by Waste Services, Inc., its Sole Member

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Executive Vice President,
General Counsel and Secretary 	 
	 



	 	 	 	 	 
	 	FORT BEND REGIONAL LANDFILL LP

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	RUFFINO HILLS TRANSFER STATION LP

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	WSI WASTE SERVICES OF TEXAS LP

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	WASTE SERVICES OF ALABAMA, INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CAPITAL ENVIRONMENTAL HOLDINGS COMPANY

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	RAM-PAK COMPACTION SYSTEMS LTD.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	6045341 CANADA INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice President and Secretary