Exhibit 10.101
AMENDMENT dated as of November 14, 2005 (this "Amendment"), to the
Credit Agreement dated as of July 21, 1999 as amended and restated as of March
21, 2005 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among ALLIED WASTE INDUSTRIES, INC. ("Allied Waste"),
ALLIED WASTE NORTH AMERICA, INC. (the "Borrower"); the lenders party thereto
(the "Lenders"); and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
capacity, the "Administrative Agent") and collateral agent for the Lenders and
as collateral trustee for the Shared Collateral Secured Parties.
The Borrower has requested that the Lenders amend certain provisions
of the Credit Agreement, and the Lenders are willing so to amend the Credit
Agreement, on the terms and subject to the conditions set forth herein.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment of Credit Agreement. The Credit Agreement is
hereby amended, effective as of the Amendment Effective Date (as defined in
Section 3), as follows:
(a) Amendment of Section 1.01. Section 1.01 is hereby revised by
inserting the following definitions in the appropriate alphabetical order
therein:
"Incremental Revolving Letter of Credit Commitment" has the
meaning assigned to such term in Section 2.23.
"Incremental Revolving Letter of Credit Facility" has the
meaning assigned to such term in Section 2.23.
"Incremental Revolving Letter of Credit Facility Amendment"
has the meaning assigned to such term in Section 2.23.
"Incremental Revolving Letter of Credit Facility Notice" has
the meaning assigned to such term in Section 2.23.
(b) Amendment of Article II. Article II of the Credit Agreement is
amended by adding the following Section 2.23 to the end thereof:
"SECTION 2.23 Incremental Revolving Letter of Credit Facility.
(a) At any time prior to the Revolving Maturity Date, the Borrower
may, by notice to the Administrative Agent (the "Incremental
Revolving Letter of Credit Facility Notice"), request the addition
of a letter of credit facility hereto (the "Incremental Revolving
Letter of Credit Facility"); provided, however, that both (x) at the
time of any such request and (y) after giving effect to the
Incremental Revolving Letter of Credit Facility, no Default
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shall exist and the Borrower shall be in compliance with each
Financial Performance Covenant. The Incremental Revolving Letter of
Credit Facility shall (i) be in an aggregate principal amount not in
excess of $35,000,000, (ii) rank pari passu in right of payment and
of security with the other Loans (and the Incremental Term Loans (if
any) and the Additional Funded LC Facility (if any)), (iii) be made
available solely for the purpose of issuing letters of credit (and
participations therein) to secure purchasing card arrangements or
substantially similar arrangements between the Borrower and the
other Restricted Subsidiaries, on the one hand, and one or more
Lenders, on the other hand, (iv) only be provided by Persons that,
immediately prior to the effectiveness of the Incremental Revolving
Letter of Credit Facility, are Lenders, (v) have such pricing as may
be agreed by the Borrower and the Lenders providing the Incremental
Revolving Letter of Credit Facility; provided, that the fees and
interest rates with respect to the Incremental Revolving Letter of
Credit Facility (taking into account upfront fees paid to lenders
under the Incremental Revolving Letter of Credit Facility) may not
be greater than the corresponding fees and interest rates with
respect to Revolving Commitments and Revolving Loans at the time the
Incremental Revolving Letter of Credit Facility Amendment (as
defined below) becomes effective pursuant to its terms (it being
understood that the pricing of the Revolving Commitments and/or
Revolving Loans will be increased and/or additional fees will be
paid to the Revolving Lenders to the extent necessary to satisfy
such requirement), (vi) have a maturity date on or prior to the
Revolving Maturity Date and (vii) otherwise be treated hereunder
substantially the same as (and in any event no more favorably than)
the Revolving Commitments and Revolving Loans (including with
respect to voluntary prepayment provisions). The Incremental
Revolving Letter of Credit Facility Notice shall (i) set forth the
requested principal amount of the Incremental Revolving Letter of
Credit Facility and (ii) identify the Lenders that have made a
commitment (an "Incremental Revolving Letter of Credit Commitment")
to (A) serve as an issuing bank under the Incremental Revolving
Letter of Credit Facility and/or (B) provide commitments under the
Incremental Revolving Letter of Credit Facility; provided, however,
that no existing Lender will be obligated to subscribe for any
portion of such commitments and no existing Lender that does not
participate in the Incremental Revolving Letter of Credit Facility
will have any obligations thereunder. Each commitment in respect of
the Incremental Revolving Letter of Credit Facility shall become a
Commitment under this Agreement and the Incremental Revolving Letter
of Credit Facility shall be implemented hereunder pursuant to an
amendment to this Agreement (the "Incremental Revolving Letter of
Credit Facility Amendment") executed by each of the Borrower, Allied
Waste, each other Loan Party, each Lender agreeing to provide an
Incremental Revolving Letter of Credit Commitment, and the
Administrative Agent, which Incremental Revolving Letter of Credit
Facility Amendment will not require the consent of any other Lender.
The effectiveness of the Incremental Revolving Letter of Credit
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Facility Amendment shall (in addition to any other conditions
specified therein) be subject to the satisfaction on the date
thereof and, if different, on the date on which the Incremental
Revolving Letter of Credit Facility Amendment is to become
effective, of each of the conditions set forth in Section 4.02."
(c) Amendment of Section 3.15. Section 3.15 of the Credit Agreement
is amended by revising the last sentence thereof to read in its entirety
as follows:
"The present value of all benefit liabilities under each Plan
(based on those assumptions used to fund such Plan) did not, as of
the last annual valuation date applicable thereto, exceed the fair
market value of the assets of such Plan by an amount that could
reasonably be expected to result in a Material Adverse Effect, and
the aggregate present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such
Plan) did not, as of the last annual valuation dates applicable
thereto, exceed the aggregate fair market value of the assets of all
such underfunded Plans by an amount that could reasonably be
expected to result in a Material Adverse Effect."
(d) Amendment of Section 5.16. Section 5.16 of the Credit Agreement
is amended by revising the third sentence thereof to read in its entirety
as follows:
"The proceeds of Revolving Loans and Swingline Loans made
after the Restatement Effective Date will be used solely for
Permitted Acquisitions, Investments permitted by Section 6.05, the
payment of premiums, accrued interest, and fees and expenses in
connection with any Permitted Refinancing Transaction or Permitted
LC or Public Notes Financing Transaction allowed hereunder, the
payment of accrued interest, and reasonable fees and expenses in
excess of fees and expenses previously disclosed to the
Administrative Agent by the Borrower in connection with the
repurchase of the 9.25% Notes allowed hereunder, prepayments of
Indebtedness in accordance with Sections 6.11(a)(ii)(s) and (t) and
for general corporate purposes, including working capital."
(e) Amendment of Section 6.11. Section 6.11 of the Credit Agreement
is amended by adding new clauses (s) and (t) to clause (a)(ii) thereof to
read as follows:
"(s) prepayments of Indebtedness originally issued to finance
the acquisition and construction of the landfill located in Carbon
County, Utah, in connection with an Asset Sale consisting of such
landfill, to the extent that such Asset Sale is permitted hereunder;
provided that (1) prepayments of Indebtedness pursuant to this
Section 6.11(a)(ii)(s) may be financed with proceeds of Revolving
Loans only to the extent that the aggregate amount of such
prepayments exceed the aggregate amount of
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Net Proceeds from such Asset Sale and (2) the aggregate amount of
Indebtedness prepaid pursuant to this Section 6.11(a)(ii)(s) shall
not exceed $50,000,000, (t) prepayments of Indebtedness incurred
under any Securitization permitted hereunder, in connection with the
termination of such Securitization if, promptly after giving effect
to such prepayment, (1) all Liens on Securitization Assets created
in connection with such Securitization are released and of no
further force and effect and (2) all Securitization Assets
previously transferred to the applicable Securitization Vehicle in
connection with such Securitization are reconveyed to the Borrower
or the applicable Restricted Subsidiary."
(f) Amendment of Section 6.05. Section 6.05 of the Credit Agreement
is amended by (i) deleting the word "and" at the end of clause (q)
thereunder, (ii) replacing the period at the end of clause (r) thereunder
with "; and" and (iii) adding a new clause (s) to read as follows:
"(s) investments made in any Securitization Vehicle to the
extent necessary to effect any prepayment of Indebtedness permitted
under Section 6.11(a)(ii)(t)."
(g) Amendment of Section 6.09. Section 6.09 of the Credit Agreement
is amended by (i) deleting the word "and" at the end of clause (i) of
paragraph (a) thereunder, (ii) replacing the period at the end of clause
(ii) of paragraph (a) thereunder with "; and" and (iii) adding a new
clause (iii) to paragraph (a) thereunder to read as follows:
"(iii) investments and debt prepayments contemplated under
Sections 6.11(a)(ii)(t) and 6.05(s)."
(h) Amendment of Section 9.02. Section 9.02 of the Credit Agreement
is amended by revising the last sentence of the first paragraph of
paragraph (b) thereof to read in its entirety as follows:
"Notwithstanding the foregoing, (i) each of the Incremental
Facility Amendment, the Refinancing Facility Amendment, the Funded
LC Facility Amendment, and the Incremental Revolving Letter of
Credit Facility Amendment shall become effective in the manner set
forth in Sections 2.21(a), 2.21(b), 2.22 and 2.23, respectively, and
(ii) each of the Administrative Agent, the Collateral Agent and the
Collateral Trustee, as applicable, shall be permitted to amend (and,
at the request of the Borrower, shall so amend) the Shared
Collateral Security Agreement or the Shared Collateral Pledge
Agreement in a manner reasonably satisfactory to the Administrative
Agent, the Collateral Agent or the Collateral Trustee, as the case
may be, without the consent of any other Lender in order to add the
holders of (and the agents with respect to) any Refinancing
Indebtedness issued to refinance Indebtedness secured on the
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Restatement Effective Date by the Shared Collateral or Qualifying
Senior Secured Indebtedness as secured parties thereunder."
SECTION 2. Representations and Warranties. To induce the other
parties hereto to enter into this Amendment, each of the Borrower and Allied
Waste represents and warrants to each of the Lenders, the Administrative Agent,
the Collateral Agent and the Collateral Trustee that, as of the Amendment
Effective Date:
(a) This Amendment has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(b) The representations and warranties set forth in Article III of
the Credit Agreement are true and correct in all material respects on and
as of the Amendment Effective Date with the same effect as though made on
and as of the Amendment Effective Date, except to the extent such
representations and warranties expressly relate to an earlier date (in
which case they were true and correct in all material respects as of such
earlier date).
(c) After giving effect to the amendments herein, no Default or
Event of Default has occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall become effective on
the first date on which the Administrative Agent shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
the Required Lenders, the Borrower and Allied Waste, provided that such date is
not later than 30 days after the date of this Amendment (the "Amendment
Effective Date").
SECTION 4. Effect of Amendment. (a) Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Lenders, the Administrative Agent, the Collateral Agent or the Collateral
Trustee under the Credit Agreement or any other Loan Document, and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other provision of the Credit Agreement or of any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect and nothing herein shall be deemed to entitle the Borrower or Allied
Waste to a consent to, or a waiver, amendment, modification or other change of,
any of the terms, conditions, obligations, covenants or agreements contained in
the Credit Agreement or any other Loan Document in similar or different
circumstances. This Amendment shall apply and be effective only with respect to
the provisions of the Credit Agreement specifically referred to herein.
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(b) On and after the Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein", or words
of like import, and each reference to the Credit Agreement in any other Loan
Document shall be deemed a reference to the Credit Agreement as amended hereby.
This Amendment shall constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 5. Costs and Expenses. The Borrower and Allied Waste,
jointly and severally, agree to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses in connection with this Amendment, including
the reasonable fees, charges and disbursements of counsel for the Administrative
Agent.
SECTION 6. Counterparts. This 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 an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings. The headings of this Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their duly authorized officers, all as of the date and year
first above written.
ALLIED WASTE INDUSTRIES, INC.,
by
___________________________________
Name:
Title:
ALLIED WASTE NORTH AMERICA, INC.,
by
___________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by
___________________________________
Name:
Title:
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SIGNATURE PAGE TO AMENDMENT DATED AS OF
NOVEMBER 14, 2005 TO THE ALLIED WASTE NORTH
AMERICA, INC. CREDIT AGREEMENT DATED AS OF
JULY, 21 1999, AS AMENDED AND RESTATED AS OF
MARCH 21, 2005
Name of Institution:
by
______________________________
Name:
Title:
by
______________________________
Name:
Title:
