Exhibit 10.5
THIRD AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AND CONSENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT AND CONSENT (this "Third Amendment") is made and entered into as
of the 14th day of April, 2000, 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"), KEYBANK NATIONAL ASSOCIATION ("Keybank"),
BANK OF AMERICA, N.A. ("BOA"), COMERICA BANK, LASALLE BANK NATIONAL ASSOCIATION,
CREDIT LYONNAIS, FIRST VERMONT BANK AND TRUST COMPANY, CIBC, INC. and CANADIAN
IMPERIAL BANK OF COMMERCE ("CIBC Canada"), a Canadian chartered bank (acting in
its individual capacity), 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 as Documentation Agent, BOA as
Syndication Agent and CIBC Canada as the Canadian Agent (the "Canadian Agent",
and together with the Administrative Agent, the "Bank Agents").
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, 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 agreed to certain increases in pricing and
prepayment premiums;
WHEREAS, the Borrowers, the Banks and the Administrative Agent wish to
make certain amendments to the Credit Agreement to implement such pricing
increases and prepayment premiums;
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) adding the following definitions in proper alphabetical order:
"ADJUSTED MARGIN. A margin of 0.125% per annum
added to the otherwise applicable rate during the Adjustment
Period.
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ADJUSTMENT PERIOD. The period from March 15, 2000
through September 14, 2000, provided that no Event of Default
has occurred and is continuing. If an Event of Default has
occurred and is continuing, the Adjustment Period shall
continue until such Event of Default has been cured to the
satisfaction of the Required Banks.
PREMIUM PERIOD. March 15, 2000 through March 15,
2001."
(b) deleting the last paragraph of the definition of "Applicable Rate"
therein and restating it as follows:
"Each Applicable Rate shall become effective on the
first day after receipt by the Banks of financial statements
delivered pursuant to Sections 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 Effective Date through six (6) months from the
Effective Date, the Applicable Rate shall be Level IV,
PROVIDED FURTHER that during the Adjustment Period, the
Adjusted Margin shall be added to the Applicable Rate for
Loans across all Levels in the above table and to the
Acceptance Fee for Bankers' Acceptances. If at any time the
financial statements required to be delivered pursuant to
Sections 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 PLUS
the Adjusted Margin, if applicable, subject to adjustment upon
actual receipt of such financial statements. In the event that
after the Effective Date and by March 31, 2000, the Parent
shall have received Net Equity Proceeds of at least
$100,000,000 from the Equity Offering, the Applicable Rate for
Loans across all Levels in the above table and the Acceptance
Fee for Bankers' Acceptances will be reduced by 0.250%,
provided that under no circumstance shall the Applicable Rate
for Base Rate Loans, Canadian Base Rate Loans or Canadian
Prime Rate Loans be less than the Base Rate, Canadian Base
Rate or Canadian Prime Rate, as applicable."
and (c) deleting the following definition in its entirety and restating
it as follows:
"LETTER OF CREDIT PERCENTAGE. The percentage per
annum equal to the margin above the Eurodollar Rate charged on
Revolving Credit Eurodollar Rate Loans, as in effect from time
to time, as set forth in the column "Applicable Rate for
Revolving Credit Eurodollar Rate Loans" in the Applicable Rate
table above, PLUS the Adjusted Margin, if applicable."
3. AMENDMENTS TO SECTION 4A.4.2 OF THE CREDIT AGREEMENT. Section 4A.4.2
of the Credit Agreement is hereby amended by deleting Section 4A.4.2 in its
entirety and restating it as follows:
"Section 4A.4.2. PAYMENT PROVISIONS. Each prepayment of the
Term Loan required by this Section 4A.4 shall be allocated among the
Term Loan Lenders in accordance with each such Bank's Term Loan
Percentage. Any prepayment of principal of the Term Loan shall include
all interest accrued to the date of
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prepayment and shall be applied against the scheduled installments of
principal due on the Term Loan in the inverse order of maturity. No
amount repaid with respect to the Term Loan may be reborrowed. Any
Term Loan Lender may decline to accept any payments due to such Term
Loan Lender pursuant to this Section 4A.4. Any such payments declined
with respect to Section 4A.4.1(a) shall be used to repay the Domestic
Revolving Credit Loans (but not permanently reduce the Total
Commitment) on a pro rata basis.
In the event that any prepayment under Sections 4A.4.1 (a),
(c), (d) or (e) is made during the Premium Period, a prepayment
premium of 1.00% (the "Prepayment Premium") on the amount prepaid
shall be payable by the Borrowers to the Administrative Agent for the
benefit of the Term Loan Lenders; PROVIDED that, if such prepayment is
required as a result of Section 4A.4.1(b), no such Prepayment Premium
shall be required. The Administrative Agent agrees to pay to the Term
Loan Lenders any Prepayment Premium received under this Section 4A.4.2
PRO-RATA in accordance with their Term Loan Percentages."
4. AMENDMENTS TO SECTION 4A.5 OF THE CREDIT AGREEMENT. Section 4A.5 of
the Credit Agreement is hereby amended by deleting Section 4A.5 in its entirety
and restating it as follows:
"Section 4A.5. OPTIONAL PREPAYMENT OF TERM LOAN. The Domestic
Borrowers shall have the right at any time to prepay the Term Notes on
or before the Term Loan Maturity Date, as a whole, or in part, upon
not less than three (3) Business Days prior written notice to the
Administrative Agent, without premium or penalty (other than the
obligation to reimburse the Term Loan Lenders and the Administrative
Agent pursuant to Section 5.14 hereof, or as otherwise stated herein),
PROVIDED that (i) each partial prepayment shall be in the principal
amount of $1,000,000 or an integral multiple of $500,000 thereof, (ii)
each partial prepayment shall be allocated among the Term Loan Lenders
in accordance with such Bank's Term Loan Percentage, and (iii) in the
event that any prepayment under this Section 4A.5 is made during the
Premium Period, the Prepayment Premium on the amount prepaid shall be
payable by the Borrowers to the Administrative Agent for the benefit
of the Term Loan Lenders PRO-RATA in accordance with their Term Loan
Percentages. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be
applied against the scheduled installments of principal due on the
Term Loan in the inverse order of maturity. No amount repaid with
respect to the Term Loan may be reborrowed."
5. AMENDMENTS TO SECTION 4A.6.1 OF THE CREDIT AGREEMENT. Section
4A.6.1 of the Credit Agreement is hereby amended by deleting the subsections (a)
and (b) in their entirety and restating them as follows:
"(a) To the extent that all or any portion of the Term Loan
bears interest during such Interest Period at the Base Rate, the Term
Loan or such portion thereof shall bear interest during such Interest
Period at the rate of 2.000% per annum PLUS the Adjusted Margin, if
applicable (the "Term Loan Base Rate Margin") above the Base Rate.
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(b) At the option of the Domestic Borrowers, and upon notice
given to the Administrative Agent pursuant to Section 4A.6.2, so long
as no Default or Event of Default has occurred or is continuing, to
the extent that all or any portion of the Term Loan bears interest
during such Interest Period at the Eurodollar Rate, the Term Loan or
such portion shall bear interest during such Interest Period at the
rate of 3.500% per annum (the "Term Loan Eurodollar Margin") above the
Eurodollar Rate PLUS the Adjusted Margin, if applicable."
6. 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. This Third 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 Third Amendment.
7. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8. COUNTERPARTS. This Third 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.
9. EFFECTIVENESS. The changes to the pricing made herein shall be
effective as of March 15, 2000.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this
Third Amendment as of the date first set forth above.
FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
individually and as Administrative Agent
By:
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Name:
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Title:
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KEYBANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By:
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Name:
-----------------------------------
Title:
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BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By:
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Name:
-----------------------------------
Title:
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COMERICA BANK
By:
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Name:
-----------------------------------
Title:
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CIBC INC.
By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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LASALLE BANK NATIONAL
ASSOCIATION
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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FIRST VERMONT BANK AND TRUST
COMPANY
By:
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Name:
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Title:
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CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as
Canadian Agent
By:
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Name:
-----------------------------------
Title:
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SANKATY HIGH YIELD PARTNERS II, L.P.
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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GREAT POINT CLO 1999-1 LTD.
By:
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Name:
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Title:
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NORTH AMERICAN SENIOR FLOATING RATE
By:
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Name:
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Title:
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▇▇▇▇▇▇ FLOATING RATE FUND
By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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CARLYLE HIGH YIELD PARTNERS II, LTD.
By:
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Name:
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Title:
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CYPRESSTREE INVESTMENT
PARTNERS I, LTD
By:
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Name:
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Title:
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▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING
RATE FUND
By:
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Name:
-----------------------------------
Title:
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CREDIT SUISSE FIRST BOSTON
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital Luxembourg, as
Collateral Manager
By:
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Name:
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Title:
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FRANKLIN FLOATING RATE TRUST
By:
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Name:
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Title:
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ARES LEVERAGED INVESTMENT FUND II, L.P.
By:
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Name:
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Title:
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ARES III CLO LTD.
By: ARES CLO Management LLC
By:
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Name:
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Title:
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ELT LTD.
By:
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Name:
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Title:
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STRATEGIC MANAGED LOAN PORTFOLIO
By:
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Name:
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Title:
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FIRST DOMINION FUNDING II
By:
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Name:
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Title:
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FIRST DOMINION FUNDING III
By:
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Name:
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Title:
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KZH SHOSHONE LLC
By:
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Name:
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Title:
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PILGRIM AMERICA HIGH INCOME INVESTMENTS, LTD.
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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PILGRIM CLO 1999-1 LTD.
By: Pilgrim Investments, Inc., as its
investment manager
By:
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Name:
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Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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ARCHIMEDES FUNDING III LTD
By:
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Name:
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Title:
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CYPRESSTREE INVESTMENT PARTNERS II, LTD.
By:
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Name:
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Title:
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KZH-ING-1 LLC
By:
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Name:
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Title:
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KZH-ING-3 LLC
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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SEQUILS-ING I (HBDGM), LTD.
By:
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Name:
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Title:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME INCOME TRUST
By:
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Name:
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Title:
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SEQUILS 1 LTD.
By: TCW Advisors, Inc. as its Collateral
Manager
By:
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Name:
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Title:
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THE TRAVELERS INSURANCE COMPANY
By:
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Name:
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Title:
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TRAVELERS CORPORATE LOAN FUND INC.
By: Travelers Asset Management International
Company LLC
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By:
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Name:
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Title:
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ELC (CAYMAN) LTD. 1999-III
By:
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Name:
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Title:
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FIRST ALLAMERICA FINANCIAL LIFE INSURANCE CO.
By:
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Name:
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Title:
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AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.,
as Portfolio Advisor
By:
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Name:
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Title:
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OLYMPIC FUNDING TRUST, SERIES 1999-1
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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KZH CYPRESSTREE-1 LLC
By:
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Name:
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Title:
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NORSE CBO, LTD.
By:
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Name:
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Title:
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COLUMBUS LOAN FUNDING LTD.
By: Travelers Asset Management International
Company LLC
By:
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Name:
-----------------------------------
Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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DOMESTIC BORROWERS:
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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:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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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.
MANNER RESINS, INC.
MECKLENBURG COUNTY RECYCLING, INC.
POWER SHIP TRANSPORT, INC.
TOTAL WASTE MANAGEMENT CORP.
U.S. FIBER, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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PENOBSCOT ENERGY RECOVERY COMPANY, LIMITED PARTNERSHIP
By: PERC Management Company Limited Partnership, general
partner
By: PERC, Inc., general partner
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
PERC MANAGEMENT COMPANY, LIMITED PARTNERSHIP
By: PERC, Inc., general partner
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CANADIAN BORROWERS:
--------------------
KTI RECYCLING OF CANADA, INC.
1316991 ONTARIO, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer