EXHIBIT 10.55
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SIXTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AND WAIVER
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT AND WAIVER (this "Sixth Amendment") is made and entered into as of the
4th day of June, 2001, by and among ▇▇▇▇▇▇▇ WASTE SYSTEMS, INC., a Delaware
corporation (the "Parent"), its Subsidiaries (other than Excluded Subsidiaries)
listed on Schedule 1 to the Credit Agreement defined below (together with the
Parent, collectively the "Borrowers"), FLEET NATIONAL BANK (f/k/a BankBoston,
N.A., "Fleet") and such banks or other financial institutions which may become a
party thereto (the "Banks"), Fleet as Administrative Agent for the Banks (the
"Administrative Agent"), KEYBANK NATIONAL ASSOCIATION as Documentation Agent,
and BANK OF AMERICA, N.A. as Syndication Agent.
WHEREAS, the Borrowers, the Banks and the Bank Agents are parties to an
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
December 14, 1999, (as amended by a First Amendment to Revolving Credit and Term
Loan Agreement dated as of February 2, 2000, a Second Amendment to Revolving
Credit and Term Loan Agreement dated as of February 14, 2000, a Third Amendment
to Revolving Credit and Term Loan Agreement dated as of April 14, 2000, a Fourth
Amendment to Revolving Credit and Term Loan Agreement dated as of August 4,
2000, a Fifth Amendment to Revolving Credit and Term Loan Agreement dated as of
February 22, 2001, and as the same may be further amended and in effect from
time to time, the "Credit Agreement"), pursuant to which the Banks have extended
credit to the Borrowers on the terms set forth therein;
WHEREAS, the Borrowers have requested that the Banks and the Administrative
Agent make certain amendments to the Credit Agreement, and grant certain
waivers, and the Banks and the Administrative Agent are willing to amend the
Credit Agreement and grant such certain waivers on the terms set forth herein;
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. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement is hereby amended by:
(a) deleting the definitions of "Applicable Rate", "Consolidated Net
Income (or Deficit)", "Term Loan Base Rate Margin" and "Term Loan
Eurodollar Margin" and respectively replacing such definitions in their
entirety with the following new definitions:
"Applicable Rate. The applicable rate per annum set forth in the
following table:
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APPLICABLE RATE FOR APPLICABLE RATE FOR
REVOLVING CREDIT BASE REVOLVING CREDIT APPLICABLE
LEVEL PRICING RATIO RATE LOANS EURODOLLAR RATE LOANS FACILITY FEE RATE
===== ==================== ====================== ===================== =================
I less than 2.50:1 Base Rate plus 0.625% Eurodollar Rate plus 0.375%
per annum 2.125% per annum
II greater than or equal Base Rate plus 0.875% Eurodollar Rate plus 0.375%
to 2.50:1 and less per annum 2.375% per annum
than 3.00:1
III greater than or equal Base Rate plus 1.000% Eurodollar Rate plus 0.500%
to 3.00:1 and less per annum 2.500% per annum
than 3.50:1
IV greater than or equal Base Rate plus 1.250% Eurodollar Rate plus 0.500%
to 3.50:1 per annum 2.750% per annum
Each Applicable Rate shall become effective on the first day
after receipt by the Banks of financial statements delivered pursuant
to ss.7.4(a) or (b) hereof which indicate a change in the Pricing
Ratio and in the Applicable Rate in accordance with the above table,
provided that for the period from the Sixth Amendment Effective Date
through six (6) months after the Sixth Amendment Effective Date, the
Applicable Rate shall be Level IV. If at any time the financial
statements required to be delivered pursuant to ss.7.4(a) or (b)
hereof are not delivered within 10 days after the time periods
specified in such subsections, the Applicable Rate shall be the rate
set forth for Level IV, subject to adjustment upon actual receipt of
such financial statements.
Consolidated Net Income (or Deficit). The consolidated net income
(or deficit) of the Borrowers after deduction of all expenses, taxes,
and other proper charges determined in accordance with GAAP, plus, to
the extent deducted and without duplication, (a) non-cash
non-recurring charges related to restructuring charges or asset
impairment charges with respect to the Cellulose Joint Venture not
exceeding $7,750,000, (b) non-cash non-recurring charges related to
losses from asset impairment charges from the Resource Technology
Group or the sale of the Resource Technology Group not exceeding
$24,000,000, and (c) other non-recurring charges, such charges in an
amount to be approved by the Administrative Agent, but in any event
not to exceed [$110,000,000], taken in the fiscal quarter ending April
30, 2001, less, to the extent included therein, (x) any extraordinary
gains, (y) any income from non-continuing operations, and (z) income
attributable to any minority equity or other Investment in any
non-Borrower except to the extent of actual cash received with respect
to the Cellulose Joint Venture or the New Heights Equity Investment
paid to the Borrowers in the form of cash dividends or cash
partnership distributions during the applicable period.
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Term Loan Base Rate Margin. In the event the Pricing Ratio for
the Applicable Term Loan Rate is at Level I, the Term Loan Base Rate
Margin shall be 2.000%, and in the event the Pricing Ratio for the
Applicable Term Loan Rate is at Level II, the Term Loan Base Rate
Margin shall be 2.250%.
Term Loan Eurodollar Margin. In the event the Pricing Ratio for
the Applicable Term Loan Rate is at Level I, the Term Loan Eurodollar
Rate Margin shall be 3.750%, and in the event the Pricing Ratio for
the Applicable Term Loan Rate is at Level II, the Term Loan Eurodollar
Rate Margin shall be 4.000%."
(b) deleting the date "August 22, 2001" in the definition of
"Adjustment Period" and replacing it with the date "June 4, 2001";
and (c) by inserting the following new definitions in proper
alphabetical order:
"Applicable Term Loan Rate. The applicable rate per annum set
forth in the following table:
APPLICABLE TERM LOAN APPLICABLE TERM LOAN
RATE FOR TERM LOAN RATE FOR TERM LOAN
LEVEL PRICING RATIO BASE RATE LOANS EURODOLLAR RATE LOANS
===== ================ ====================== ===========================
I less than 3.00:1 Base Rate plus 2.000% Eurodollar Rate plus 3.750%
per annum per annum
II greater than or Base Rate plus 2.250% Eurodollar Rate plus 4.000%
equal to 3.00:1 per annum per annum
Each Applicable Term Loan Rate shall become effective on the
first day after receipt by the Banks of financial statements delivered
pursuant to ss.7.4(a) or (b) hereof which indicate a change in the
Pricing Ratio and in the Applicable Term Loan Rate in accordance with
the above table, provided that for the period from the Sixth Amendment
Effective Date through six (6) months after the Sixth Amendment
Effective Date, the Applicable Rate shall be Level II. If at any time
the financial statements required to be delivered pursuant to
ss.7.4(a) or (b) hereof are not delivered within 10 days after the
time periods specified in such subsections, the Applicable Term Loan
Rate shall be the rate set forth for Level II, subject to adjustment
upon actual receipt of such financial statements.
Sixth Amendment Effective Date. June 4, 2001."
3. AMENDMENTS TO SECTION 2.2.1 OF THE CREDIT AGREEMENT. Section 2.2.1 of
the Credit Agreement is hereby amended by inserting in proper alphabetical
order, the following new subsection (d):
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"(d) On the Sixth Amendment Effective Date, the Total Commitment shall
be irrevocably reduced to $280,000,000, and any payments required by ss.2.5
shall be made on each such date, together with any and all accrued and
unpaid interest thereon. On the Sixth Amendment Effective Date, each
Revolving Bank's Domestic Commitment shall be reduced pro rata in
accordance with such Bank's Domestic Commitment Percentage. The Domestic
Borrowers jointly and severally promise to pay on the Sixth Amendment
Effective Date all Domestic Revolving Credit Loans, unpaid Reimbursement
Obligations with respect to Domestic Letters of Credit and any and all
unpaid interest accrued thereon, exceeding the amount of the reduced Total
Domestic Commitment as of such date."
4. AMENDMENTS TO SECTION 4A.6.1 OF THE CREDIT AGREEMENT. Section 4A.6.1 of
the Credit Agreement is hereby amended by deleting ss.4A.6.1 in its entirety and
restating it as follows:
"Except as otherwise provided in ss.5. 7, the Term Loan shall bear
interest during each Interest Period relating to all or any portion of the
Term Loan at the rate per annum equal to the Applicable Term Loan Rate."
5. AMENDMENTS TO SECTION 8.4.1(J) OF THE CREDIT AGREEMENT. Section 8.4.1(j)
of the Credit Agreement is hereby amended by deleting subsection (j) thereof in
its entirety and replacing it with the following:
"(j) (i) in the event that the ratio of (A) Total Consolidated Funded
Indebtedness to (B) EBITDA under ss.9.5 hereof is greater than or equal to
3.50:1.00, no Borrower shall become a party to an acquisition without the
consent of the Administrative Agent and the Required Banks, and (ii) in the
event that the ratio of (A) Total Consolidated Funded Indebtedness to (B)
EBITDA under ss.9.5 hereof is less than 3.50:1.00, cash consideration to be
paid by any Borrower in connection with any acquisition or series of
related acquisitions (including cash deferred payments, contingent or
otherwise, and the aggregate amount of all liabilities assumed), shall not
exceed $15,000,000 without the consent of the Administrative Agent and the
Required Banks; provided, further, in each case, that, taking into account
such acquisition and any borrowing made in connection therewith, (x) there
shall remain at least $20,000,000 of availability under the Total
Commitment, and (y) the Borrowers shall be in compliance with ss.9.5 hereof
on a pro forma basis (with the $20,000,000 of availability in clause (x)
hereof included as Total Consolidated Funded Indebtedness for purposes of
calculating compliance)."
6. AMENDMENT TO SS.8.4.2. Section 8.4.2 of the Credit Agreement is amended
by deleting the figure "$24,000,000" therein and replacing it with the figure
"$10,000,000".
7. AMENDMENTS TO SECTION 8.8 OF THE CREDIT AGREEMENT. Section 8.8 of the
Credit Agreement is hereby amended by deleting ss.8.8 in its entirety and
substituting in place thereof the following new ss.8.8:
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"ss.8.8. CAPITAL EXPENDITURES. Commencing with the fiscal quarter ending
July 31, 2001, as at the end of any fiscal quarter (a) through the fiscal
quarter ending April 30, 2002, the Borrowers will not permit the amount of
Capital Expenditures (excluding any acquisitions permitted by ss.8.4 hereof)
made by the Borrowers for such fiscal quarters to exceed the amount set forth
opposite such period set forth in the following table:
QUARTER ENDED TOTAL CUMULATIVE
------------- ----- ----------
7/31/01 $19,700,000 $19,700,000
10/31/01 $14,900,000 $34,600,000
1/31/02 $5,900,000 $40,500,000
4/30/02 $5,500,000 $46,000,000
FISCAL YEAR
ENDED 2002 $46,000,000 $46,000,000
and (b) thereafter, the Borrowers will not permit the amount of Capital
Expenditures (excluding any acquisitions permitted by ss.8.4 hereof) made
by the Borrowers in the period of four (4) consecutive fiscal quarters then
ended to exceed the lesser of (i) 0.5 times EBITDA for such period, or (ii)
the sum of depreciation and landfill amortization expense for such period
(calculated in accordance with GAAP). If during any of the fiscal quarters
through April 30, 2002, any permitted Capital Expenditures are not
utilized, such unutilized amount may be utilized in the next succeeding
quarter, provided however, that, (x) such amount does not exceed the
cumulative Capital Expenditures as set forth in the above table and (y)
annual Capital Expenditures for the fiscal year ending 2002 do not exceed
$46,000,000."
8. AMENDMENTS TO SECTION 9.1 OF THE CREDIT AGREEMENT. Section 9.1 of the
Credit Agreement is hereby amended by deleting ss.9.1 in its entirety and
substituting in place thereof the following new ss.9.1:
"ss.9.1. INTEREST COVERAGE RATIOS. As of the end of any fiscal
quarter, the ratio of EBITDA to Consolidated Total Interest Expense shall
not be less than the stated ratio for the respective periods set forth
below:
PERIOD RATIO
------ -----
Effective Date through 1/31/02 2.50:1
4/30/02 through 1/31/03 2.60:1
4/30/03 through 1/31/04 3.25:1
Thereafter 3.50:1
provided, that any adjustments made pursuant to clause (e) of the
definition of EBITDA shall not be included in the calculation of this
ss.9.1 and EBITDA shall be calculated for the period of four (4) fiscal
quarters ending on the date of calculation."
9. AMENDMENTS TO SECTION 9.3 OF THE CREDIT AGREEMENT. Section 9.3 of the
Credit Agreement is hereby amended by deleting ss.9.3 in its entirety and
substituting in place thereof the following new ss.9.3:
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"SS.9.3. BORROWERS' FUNDED DEBT TO EBITDA RATIO. The Borrowers will not
permit the ratio of (a) Consolidated Funded Indebtedness to (b) EBITDA as at the
end of any fiscal quarter to exceed the stated ratio for the respective periods
set forth below:
PERIOD RATIO
------ -----
Effective Date through 7/31/01 4.00:1
10/31/01 4.10:1
1/31/02 4.15:1
4/30/02 through 7/31/02 3.90:1
10/31/02 through 1/31/03 3.75:1
Thereafter 3.50:1
For the purposes of this ss.9.3, EBITDA shall be calculated for the period
of four (4) consecutive fiscal quarters ending on the date of calculation."
10. AMENDMENTS TO SECTION 9.4 OF THE CREDIT AGREEMENT. Section 9.4 of the
Credit Agreement is hereby amended by deleting ss.9.4 in its entirety and
substituting in place thereof the following new ss.9.4:
"SS.9.4. FUNDED DEBT TO CAPITALIZATION. As of the end of any fiscal
quarter, the Borrowers shall not permit the ratio of (a) Consolidated
Funded Indebtedness to (b) the sum of (i) Consolidated Funded Indebtedness
plus (ii) shareholder's equity in the Parent as determined in accordance
with GAAP (including, without duplication, any preferred stock of the
Parent) ("Capitalization") to exceed the stated ratio for the respective
periods set forth below:
PERIOD RATIO
------ -----
7/31/01 through 1/31/02 0.75:1
4/30/02 through 1/31/03 0.72:1
4/30/03 through 1/31/04 0.70:1
Thereafter 0.65:1."
11. AMENDMENTS TO SCHEDULES AND EXHIBITS OF THE CREDIT AGREEMENT. Exhibit D
is hereby amended by deleting the current Exhibit D attached to the Credit
Agreement and replacing it with the new Exhibit D attached hereto.
12. WAIVER. Each of the Required Banks hereby waives the Borrowers'
compliance with the covenants set forth in ss.8.8 and 9 of the Credit Agreement
solely for the fiscal period ending April 30, 2001.
13. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers represents and
warrants as follows:
(a) The execution, delivery and performance of each of this Sixth
Amendment and the Credit Agreement, as amended as of the date hereof and
the transactions contemplated hereby and thereby are within the corporate
power and authority of such Borrower and have been or will be authorized by
proper corporate
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proceedings, and do not (a) require any consent or approval of the
stockholders of such Borrower, (b) contravene any provision of the charter
documents or by-laws of such Borrower or any law, rule or regulation
applicable to such Borrower, or (c) contravene any provision of, or
constitute an event of default or event which, but for the requirement that
time elapse or notice be given, or both, would constitute an event of
default under, any other material agreement, instrument or undertaking
binding on such Borrower.
(b) This Sixth Amendment and the Credit Agreement as amended as of the
date hereof and all of the terms and provisions hereof and thereof are the
legal, valid and binding obligations of such Borrower enforceable in
accordance with their respective terms except as limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, and except as the remedy of
specific performance or of injunctive relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
(c) The execution, delivery and performance of this Sixth Amendment
and the Credit Agreement as amended as of the date hereof and the
transactions contemplated hereby and thereby do not require any approval or
consent of, or filing or registration with, any governmental or other
agency or authority, or any other party.
(d) The representations and warranties contained in ss.6 of the Credit
Agreement are true and correct in all material respects as of the date
hereof as though made on and as of the date hereof.
(e) After giving effect to this Sixth Amendment, no Default or Event
of Default under the Credit Agreement has occurred and is continuing.
14. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
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, provided, however that the Borrowers
hereby acknowledge that due to their non-activation of the Canadian line, all
references in the Loan Documents to the Canadian line are of no force and
effect. This Sixth Amendment and the Credit Agreement shall hereafter be read
and construed together as a single document, and all references in the Credit
Agreement or any related agreement or instrument to the Credit Agreement shall
hereafter refer to the Credit Agreement as amended by this Sixth Amendment.
15. GOVERNING LAW. THIS SIXTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. RELEASE. In order to induce the Administrative Agent and the Banks to
enter into this Amendment, each of the Borrowers acknowledges and agrees that:
(a) none of the Borrowers has any claim or cause of action against the
Administrative Agent or any Bank (or any of its respective directors, officers,
employees or agents); (b) none of the Borrowers has any offset right,
counterclaim or defense of any kind against any of their respective obligations,
indebtedness or liabilities to the Administrative Agent or any Bank; and (c)
each of the Administrative Agent and the Banks has heretofore properly performed
and satisfied in a timely manner all of its obligations to
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the Borrowers. The Borrowers wish to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters would impair or
otherwise adversely affect any of the Administrative Agent's and the Banks'
rights, interests, contracts, collateral security or remedies. Therefore, each
of the Borrowers unconditionally releases, waives and forever discharges (x) any
and all liabilities, obligations, duties, promises or indebtedness of any kind
of the Administrative Agent or any Bank to any of the Borrowers, except the
obligations to be performed by the Administrative Agent or any Bank on or after
the date hereof as expressly stated in this Amendment, the Credit Agreement and
the other Loan Documents, and (y) all claims, offsets, causes of action, suits
or defenses of any kind whatsoever (if any), whether arising at law or in
equity, whether known or unknown, which the Borrowers might otherwise have
against the Administrative Agent, any Bank or any of its directors, officers,
employees or agents, in either case (x) or (y), on account of any past or
presently existing condition, act, omission, event, contract, liability,
obligation, indebtedness, claim, cause of action, defense, circumstance or
matter of any kind.
17. DELIVERY BY FACSIMILE. This Amendment, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute original
forms thereof and deliver them to all other parties. No party hereto or to any
such agreement or instrument shall raise the use of a facsimile machine to
deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine as a
defense to the formation of a contract and each party forever waives such
defense.
18. COUNTERPARTS. This Sixth Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
19. EFFECTIVENESS. This Sixth Amendment shall become effective (the "Sixth
Amendment Effective Date") upon the receipt by the Agent of:
(a) a counterpart of this Sixth Amendment, executed by the Required Banks
and the Borrowers;
(b) an amendment fee in an aggregate amount equal to 20.0 basis points on
the Commitment (as reduced hereby) or outstanding principal portion of the Term
Loan, as applicable, of each Bank which consents to this Sixth Amendment on or
prior to 5:00 p.m. (Boston time) on June 4, 2001; and
(c) payment of all fees and expenses of the Administrative Agent's legal
counsel in the connection with the preparation of this Sixth Amendment and
ancillary documentation and filings.
EXHIBIT D
---------
FORM OF COMPLIANCE CERTIFICATE
▇▇▇▇▇▇▇ WASTE SYSTEMS, INC.
Compliance Certificate dated___________
I, _______________, Chief Financial Officer of ▇▇▇▇▇▇▇ Waste Systems, Inc.,
certify that the Borrowers are in compliance with ss.7, 8 and 9 of the Amended
and Restated Revolving Credit and Term Loan Agreement dated as of December 14,
1999, as the same may be amended, [as of the end of the quarter dated
_____________] [giving effect to the acquisition of _______________].
Computations to evidence such compliance are detailed below.
-----------------------
Chief Financial Officer
ss.1.1 "Pricing Ratio"
-----------------------
For the Borrowers (unless a non-Borrower obligation is guaranteed by a Borrower,
in which case such obligation shall be included):
1. Indebtedness for borrowed money
or similar obligations $ __________________
2. Obligations evidenced by debt instruments $ __________________
3. Unpaid reimbursement obligations under any
letter of credit $ __________________
4. Obligations under Capitalized Leases
corresponding to principal $ __________________
5. Guarantees of items in lines 1-4 $ __________________
6. Consolidated Funded Indebtedness $ __________________
(total of line 1 plus line 2 plus line 3 plus
line 4 plus line 5)
7. (a) Consolidated net income or deficit
of the Borrowers* (after deduction of
proper charges in accordance with GAAP) $ _________________
(b) Non-cash non-recurring charges related to the
Cellulose Joint Venture $ _________________
(not to exceed $7,750,000)
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(C) Non-cash non-recurring charges related
to the Resource Technology Group $___________________
(not to exceed $24,000,000)
(d) Other non-recurring charges approved by
the Administrative Agent and taken
in the fiscal quarter ending April 30, 2001 $___________________
(but in any event not to exceed $110,000,000)
(e) Extraordinary gains $___________________
(f) Income from non-continuing operations $___________________
(g) Income attributable to any minority equity $___________________
or other Investment in any non-Borrower $___________________
(except to the extent of actual cash received
with respect to the Cellulose Joint Venture or
the New Heights Equity Investment)
8. Consolidated Net Income or Deficit of the Borrowers $___________________
(total of line 7(a) plus line 7(b) plus line 7(c)
plus line 7(d) minus line 7(e) minus line 7(f) minus
line 7(g))
9. (a) Interest expense of the Borrowers* $___________________
(b) Income taxes of the Borrowers* $___________________
(c) Amortization Expense of the Borrowers* $___________________
(d) Depreciation Expense of the Borrowers* $___________________
10. Non-cash non-recurring charges related to
Oakhurst operations to be taken through the
fiscal quarter ending January 31, 2001 $1,680,000
11. EBITDA of the Borrowers $___________________
(sum of line 8 plus lines 9(a)-(d) plus line 10)
(*annualized if necessary)
12. Consolidated Net Income or Deficit for Acquired
Businesses (other than Excluded Subsidiaries)* $___________________
13. (a) Interest expense for Acquired Businesses* $___________________
(b) Income taxes for Acquired Businesses* $___________________
(c) Amortization Expense for Acquired Businesses* $___________________
(d) Depreciation Expense for Acquired Businesses* $___________________
14. Acquired EBITDA $___________________
(sum of line 12 plus lines 13(a)-(d))
(*annualized if necessary)
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* EBITDA calculations shall be based on the period of four (4) consecutive
fiscal quarters then ended.
15. Total EBITDA $___________________
(sum of line 11 plus line 14)
16. Pricing Ratio
(ratio of line 6 to line 15)
ss.8.3(i) Other Investments in PERC and Timber
----------------------------------------------
The following is a description of all other Investments in PERC and Timber by
the Borrowers pursuant to ss.8.3(i) of the Credit Agreement:
17. Total of Investments in PERC and Timber
listed on Schedule 8.3(f) $___________________
Description Amount
----------- ------
18. Total of Investments in PERC and Timber
listed above $___________________
Total of line 17 plus line 18 $___________________
MAXIMUM ALLOWED $5,000,000
ss.8.8 Capital Expenditures
---------------------------
19. Total Capital Expenditures for the Borrowers
for period of four (4) consecutive fiscal quarters
then ended $___________________
(excluding acquisitions permitted by ss.8.4)
20. Cumulative Capital Expenditures for the Borrowers
through the fiscal quarter then ended $___________________
(excluding acquisitions permitted by ss.8.4)
21. Sum of depreciation and landfill amortization
expense for the Borrowers for four (4) consecutive
fiscal quarters then ended $___________________
22. EBITDA from line 15 above $___________________
23. Line 21 multiplied by 0.5 $___________________
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Maximum Total Capital Expenditures Allowed
through 7/31/01 $19,700,000
Maximum Cumulative Capital Expenditures Allowed
through 7/31/01 $19,700,000
Maximum Total Capital Expenditures Allowed
for the quarter ending 10/31/01 $14,900,000
Maximum Cumulative Capital Expenditures Allowed
for the quarter ending 10/31/01 $34,600,000
Maximum Total Capital Expenditures Allowed
for the quarter ending 1/31/02 $5,900,000
Maximum Cumulative Capital Expenditures Allowed
for the quarter ending 1/31/02 $40,500,000
Maximum Total Capital Expenditures Allowed
for the quarter ending 4/30/02 $5,500,000
Maximum Cumulative Capital Expenditures Allowed
for the quarter ending 4/30/02 $46,000,000
Maximum Total Capital Expenditures Allowed
after 4/30/02 $_______________
(insert lesser of amounts from line 21 and line 23)
ss.9.1 Interest Coverage Ratio
------------------------------
For the Borrowers (unless a non-Borrower obligation is guaranteed by a Borrower,
in which case such obligation shall be included), for the four quarters then
ending:
24. EBITDA from line 15 above $___________________
25. Consolidated Total Interest Expense
of the Borrowers $___________________
26. Ratio of line 24 to line 25 ___________________
MINIMUM REQUIRED:
Through 1/31/02 2.50:1
4/30/02 through 1/31/03 2.60:1
4/30/03 through 1/31/04 3.25:1
Thereafter 3.50:1
ss.9.2 Profitable Operations
----------------------------
27. Consolidated Net Income for Borrowers for the
fiscal quarter ending on the statement date $___________________
MINIMUM REQUIRED $0
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ss.9.3 Borrowers' Funded Debt-to-EBITDA Ratio
---------------------------------------------
28. Consolidated Funded Indebtedness $___________________
(from line 6 above)
29. EBITDA $___________________
(from line 15 above)
30. Pro-forma credit related to the purchase
of certain assets in July 2000 $___________________
(not to exceed $959,000 for the fiscal
quarter ending January 31, 2001, and $384,000
for the fiscal quarter ending April 30, 2001)
31. EBITDA for ss.9.3 $___________________
(sum of line 29 plus line 30)
32. Ratio of line 28 to line 31
MAXIMUM ALLOWED:
Through 7/31/01 4.00:1
For the quarter ending 10/31/01 4.10:1
For the quarter ending 1/31/02 4.15:1
4/30/02 through 7/31/02 3.90:1
10/31/02 through 1/31/03 3.75:1
Thereafter 3.50:1
ss.9.4 Funded Debt to Capitalization
------------------------------------
For the fiscal quarter then ended:
33. Consolidated Funded Indebtedness $___________________
(from line 6 above)
34. Shareholder's equity in the Parent $___________________
(including, without duplication, preferred stock)
35. Line 33 plus line 34 $___________________
36. Ratio of line 33 to line 35 ___________________
MAXIMUM ALLOWED:
Through 1/31/02 0.75:1
4/30/02 through 1/31/03 0.72:1
4/30/03 through 1/31/04 0.70:1
Thereafter 0.65:1
-6-
ss.9.5 Total Funded Debt to EBITDA
----------------------------------
For the Borrowers and the Excluded Subsidiaries:
37. Indebtedness for borrowed money or similar
obligations $___________________
38. Obligations evidenced by debt instruments $___________________
39. Face amount of all Financial L/Cs and any
unpaid reimbursement obligations under any
Financial L/C $___________________
40. Obligations under capitalized leases
corresponding to principal $___________________
41. Guarantees of items in lines 37 - 40 $___________________
42. Total Consolidated Funded Indebtedness $___________________
(total of line 37 plus line 38 plus line
39 plus line 40 plus line 41)
43. EBITDA $___________________
(from line 15 above)
44. Ratio of line 42 to line 43 ____________________
MAXIMUM ALLOWED 4.00:1
-19-
BORROWERS
---------
ALL CYCLE WASTE, INC.
BRISTOL WASTE MANAGEMENT, INC.
CASELLA T.I.R.E.S., INC.
CASELLA TRANSPORTATION, INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT, INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT OF N.Y., INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT OF PENNSYLVANIA, INC.
▇▇▇▇▇▇▇ WASTE SYSTEMS, INC.
GRASSLANDS INC.
▇▇▇▇▇ C & D DISPOSAL, INC.
▇▇▇▇▇ HOLLOW REGENERATION CORP.
NATURAL ENVIRONMENTAL, INC.
NEWBURY WASTE MANAGEMENT, INC.
NEW ENGLAND WASTE SERVICES, INC.
NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC.
NEW ENGLAND WASTE SERVICES OF N.Y., INC.
NEW ENGLAND WASTE SERVICES OF VERMONT, INC.
NORTH COUNTRY ENVIRONMENTAL SERVICES, INC.
NORTHERN SANITATION, INC.
PINE TREE WASTE, INC.
RESOURCE RECOVERY OF CAPE COD, INC.
RESOURCE TRANSFER SERVICES, INC.
RESOURCE WASTE SYSTEMS, INC.
▇▇▇▇▇▇ ENVIRONMENTAL RECOVERY FACILITIES, INC.
▇▇▇▇▇▇ ENVIRONMENTAL SERVICES
▇▇▇▇▇▇▇ LANDFILL, INC.
SUNDERLAND WASTE MANAGEMENT, INC.
WASTE-STREAM INC.
WESTFIELD DISPOSAL SERVICE, INC.
▇▇▇▇▇▇▇ BROTHERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
-20-
ADVANCED ENTERPRISES RECYCLING INC.
THE AFA GROUP, INC.
AFA PALLET, INC.
AGRO PRODUCTS, INC.
ALLIED EQUIPT. & SALES CORP, INC.
AMERICAN SUPPLIES SALES GROUP, INC.
ARTIC INC.
ATLANTIC TRANSPORTATION TECHNOLOGIES INC.
DATA DESTRUCTION SERVICES, INC.
FAIRFIELD COUNTY RECYCLING, INC.
FCR CAMDEN, INC.
FCR FLORIDA, INC.
FCR GEORGIA, INC.
FCR GREENSBORO, INC.
FCR GREENVILLE, INC.
FCR ▇▇▇▇▇▇, INC.
FCR PLASTICS, INC.
FCR REDEMPTION, INC.
FCR TENNESSEE, INC.
FCR VIRGINIA, INC.
FCR, INC.
KTI BIO FUELS, INC.
KTI ENERGY OF MARTINSVILLE, INC.
KTI ENERGY OF VIRGINIA, INC.
KTI ENVIRONMENTAL GROUP, INC.
KTI NEW JERSEY FIBERS, INC.
KTI OPERATIONS, INC.
KTI RECYCLING OF ILLINOIS, INC.
KTI RECYCLING OF NEW ENGLAND, INC.
KTI RECYCLING OF NEW JERSEY, INC.
KTI RECYCLING, INC.
KTI SPECIALTY WASTE SERVICES, INC.
KTI TRANSPORTATION SERVICES, INC.
KTI, INC.
MECKLENBURG COUNTY RECYCLING, INC.
POWER SHIP TRANSPORT, INC.
TOTAL WASTE MANAGEMENT CORP.
U.S. FIBER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
-21-
PENOBSCOT ENERGY RECOVERY COMPANY,
LIMITED PARTNERSHIP
By: PERC Management Company Limited
Partnership, general partner
By: PERC, Inc., general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
PERC MANAGEMENT COMPANY, LIMITED
PARTNERSHIP
By: PERC, Inc., general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
KTI RECYCLING OF CANADA, INC.
1316991 ONTARIO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
IN WITNESS WHEREOF, each of the undersigned have duly executed this Sixth
Amendment as of the date first set forth above.
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.),
individually and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
COMERICA BANK
By: /s/ ▇▇▇▇▇▇ ▇. Ursa
Name: ▇▇▇▇▇▇ ▇. Ursa
Title: Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
CANADIAN IMPERIAL BANK OF COMMERCE
By:
Name:
Title:
CIBC INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp. As Agent
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager and Authorized
Signatory
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Investment Officer
TRAVELERS CORPORATE LOAN FUND INC.
By: Travelers Asset Management
International Company LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Investment Officer
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ investment Advisory Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
HARBOURVIEW CDO II, LIMITED
By:
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as
Portfolio Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
MAGNETITE ASSET INVESTORS, LLC
By:
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc., as Sub-Managing Agent (Financial)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management,
Inc., as Attorney in fact
By:
Name:
Title:
TRITON CBO III, LIMITED
By: INVESCO Senior Secured Management,
Inc., as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
NORSE CBO, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: PRESIDENT
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ELT LTD.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
THERMOPYLAE FUNDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
STRATEGIC MANAGED LOAN PORTFOLIO
By:
Name:
Title:
KZH SHOSHONE LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
PILGRIM AMERICA HIGH INCOME
INVESTMENTS, LTD.
By: ING Pilgrim Investments,
as its investment manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CFA
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
▇▇▇▇▇▇ FLOATING RATE FUND
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Sr. Vice President
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
CARLYLE HIGH YIELD PARTNERS III, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS I, LTD
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING RATE FUND
By:
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
PILGRIM CLO 1999-1 LTD.
By: Pilgrim Investments, Inc., as its
investment manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CFA
Title: Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS II, LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
KZH-ING-1 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH-ING-2 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
KZH-ING-3 LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC, as
investment Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice president
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
FIRST VERMONT BANK AND TRUST COMPANY
By: /s/ E. Kirice ▇▇▇▇
Name: E. Kirice ▇▇▇▇
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
individually and as Canadian Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CIBC World Markets Corp.
as Agent
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, INC.,
as Collateral Manager for GREAT POINT
CLO 1999-1 LTD., as Term Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
FIRST ALLAMERICA FINANCIAL LIFE
INSURANCE CO.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management,
Inc., as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
AERIES FINANCE - II LTD.
By: INVESCO Senior Secured Management,
Inc., as Sub-Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
COLUMBUS LOAN FUNDING LTD.
By: Travelers Asset Management
International Company LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Investment Officer
MUIRFIELD TRADING LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By ▇▇▇ ▇▇▇▇▇▇ Management Inc,
as Collateral Manager
By:
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ CLO II, LIMITED
By ▇▇▇ ▇▇▇▇▇▇ Management Inc.,
as Collateral Manager
By:
Name:
Title:
TITANIUM CBO I
By:
Name:
Title:
