EXHIBIT 10.1
AMENDMENT dated as of January 25, 2001 (this "Amendment"), to the Credit
Agreement (the "Credit Agreement") dated as of July 21, 1999, among ALLIED WASTE
INDUSTRIES, INC. ("Allied Waste"), ALLIED WASTE NORTH AMERICA, INC. (the
"Borrower"); the lenders party thereto (the "Lenders"); and THE CHASE MANHATTAN
BANK ("Chase"), as administrative agent (in such capacity, the "Administrative
Agent") and collateral agent (in such capacity, the "Collateral Agent") for the
Lenders and as collateral trustee (in such capacity, the "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
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amended, effective as of the Amendment Effective Date, as follows:
(a) Amendment of Section 1.01.
(i) The following definitions are hereby inserted in alphabetical order in
Section 1.01 of the Credit Agreement:
""HENS Partnerships" means, collectively, American Ref-Fuel Company of
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Hempstead, American Ref-Fuel Company of Essex County, American
Ref-Fuel Company of Niagara, L.P., and American Ref-Fuel Company of Southeastern
Connecticut."
""Ref-Fuel Subsidiaries" means the special purpose vehicles formed in
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connection with the Ref-Fuel Transaction for the purpose of purchasing trucks,
construction equipment, containers and/or other equipment to be leased to
subsidiaries of Allied Waste."
""Ref-Fuel Subsidiary Purchase Money Debt" shall have the meaning assigned
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thereto in Section 6.01A."
""Ref-Fuel Transaction" means the sale of the interests of Allied Waste in
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certain of the Ref-Fuel companies and the restructuring of the interests of
Allied Waste in other Ref-Fuel companies."
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""2001 Indenture" means (i) the Indenture among AWNA and/or Allied Waste
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and the trustee named therein or (ii) Supplement No. 6 to the AWNA Senior Note
Indenture, in either case dated on or prior to December 31, 2001, as amended,
supplemented or otherwise modified from time to time in accordance with the
provisions of this Agreement."
""2001 Senior Notes" means senior secured notes of AWNA or Allied Waste
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issued on or prior to December 31, 2001 pursuant to the 2001 Indenture."
(ii) Each of the definitions of "Collateral Trust Agreement", "Indemnity,
Subrogation and Contribution Agreement", "Non-Shared Collateral Pledge
Agreement", "Non-Shared Collateral Security Agreement", "Parent Guarantee
Agreement", "Security Agreements", "Security Documents", "Shared Collateral
Pledge Agreement", "Shared Collateral Security Agreement" and "Subsidiary
Guarantee Agreement" in Section 1.01 of the Credit Agreement is hereby amended
by inserting the following phrase at the end of each such definition:
", as amended, supplemented or otherwise modified from time to time in
accordance with the provisions of this Agreement".
(iii) The definition of "Loan Party" in Section 1.01 of the Credit
Agreement is hereby amended by inserting the following proviso at the end of
such definition:
"; provided that no Ref-Fuel Subsidiary need become a Loan Party until such
time as it has no Ref-Fuel Subsidiary Purchase Money Debt outstanding".
(iv) The definition of "Prepayment Event" in Section 1.01 of the Credit
Agreement is hereby amended by inserting the phrase "and (xix)" immediately
following the phrase "Section 6.01A(xvi)" in clause (y) of paragraph (c) of such
definition.
(v) The definition of "Subsidiary" in Section 1.01 of the Credit Agreement
is hereby amended by inserting the following proviso at the end of the last
sentence of such definition:
"; provided that the Ref-Fuel Subsidiaries shall be deemed Subsidiaries on
and after the consummation of the Ref-Fuel Transaction".
(b) Amendment of Section 2.08(b). Paragraph (b) of Section 2.08 of the
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Credit Agreement is hereby amended by inserting the following sentence at the
end of such paragraph:
"Notwithstanding the foregoing, upon the consummation of the Ref-Fuel
Transaction and the replacement of the outstanding Letters of Credit in the
approximate aggregate amount of $130,000,000 relating to Ref-Fuel, the Revolving
Commitments shall automatically be reduced by $200,000,000; provided however
that (i) the Revolving Commitments shall only be reduced by $100,000,000 if the
Borrower or Allied Waste shall have received at least $750,000,000 but less than
$1,000,000,000 in gross cash proceeds from the offering of the 2001 Senior Notes
prior to the consummation of the Ref-Fuel Transaction and (ii) no reduction of
the Revolving Commitments shall occur if the Borrower or Allied Waste shall have
received at least $1,000,000,000 in gross cash proceeds from the offering of the
2001 Senior Notes prior to the consummation of the Ref-Fuel Transaction." (c)
Amendment of Section 6.01A. Section 6.01A of the Credit Agreement is hereby
amended as follows:
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(i) The word "and" at the end of clause (xviii) of Section 6.01A is hereby
deleted.
(ii) Clause (xiii) of 6.01A is hereby amended by inserting the phrase "and
the 2001 Senior Notes" immediately following the phrase "paragraphs (iii) and
(v)" therein.
(iii) The period at the end of clause (xix) of Section 6.01A is hereby
deleted and replaced with a semicolon.
(iv) The following new clauses are hereby inserted immediately following
clause (xviii) of Section 6.01A:
"(xix) up to the aggregate principal amount of the 2001 Senior Notes issued
by the Borrower or Allied Waste pursuant to the 2001 Indenture and the related
Guarantees, if any, by Allied Waste and/or its subsidiaries of the issuer's
obligations with respect to such 2001 Senior Notes; provided that 100% of the
Net Available Proceeds from the issuance of such 2001 Senior Notes are used to
prepay Term Loans in accordance with Section 2.11(c);
(xx) up to $280,000,000 of Indebtedness incurred by the Ref-Fuel
Subsidiaries to finance the acquisition of trucks, construction equipment,
containers and/or other equipment to be leased to subsidiaries of Allied Waste
and refinancings thereof not in excess of the aggregate principal amount of such
Indebtedness (the "Ref-Fuel Subsidiary Purchase Money Debt"); and".
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(v) Clause (xix) of Section 6.01A is hereby re-numbered as clause "(xxi)"
and the reference to clause "(xviii)" therein is hereby replaced with a
reference to clause "(xx)".
(d) Amendment of Section 6.02A. Section 6.02A of the Credit Agreement is
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hereby amended as follows :
(i) The word "and" at the end of paragraph (h) of Section 6.02A is hereby
deleted.
(ii) The period at the end of paragraph (i) of Section 6.02(A) is hereby
replaced with a semicolon.
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(iii) The following new paragraphs are hereby inserted at the end of such
Section 6.02A:
"(k) all Liens created under the Shared Collateral Security Agreement and
the Shared Collateral Pledge Agreement securing obligations in respect of the
2001 Senior Notes, provided that such obligations are initially secured under
such agreements at or about the time of issuance of the 2001 Senior Notes; and
(l) all Liens on the assets of Ref-Fuel Subsidiaries created to secure the
Ref-Fuel Subsidiary Purchase Money Debt and refinancings thereof permitted
pursuant to clause (xx) of Section 6.01A."
(e) Amendment of Section 6.05A. Section 6.05A of the Credit Agreement is
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hereby amended as follows:
(i) Paragraph (a) of Section 6.05A is hereby amended by inserting the
following proviso at the end of such paragraph:
"; and provided further that, after the consummation of the Ref-Fuel
Transaction, neither Allied Waste nor any Restricted Subsidiary shall make any
additional Investment in any Ref-Fuel Subsidiary except to the extent permitted
by paragraph (r) of this Section 6.05A."
(ii) The word "and" at the end of paragraph (o) of Section 6.05A is hereby
deleted.
(iii) The period at the end of paragraph (p) of Section 6.05A is hereby
deleted and replaced with a semicolon.
(iv) The following new paragraphs are hereby inserted at the end of such
Section 6.05A:
"(q) the Guarantees, if any, issued by Allied Waste and/or its subsidiaries
in respect of the 2001 Senior Notes; and
(r) the acquisition of additional equity interests in the Ref-Fuel
Subsidiaries not owned by Allied Waste or its Subsidiaries in exchange for
equity interests in the HENS Partnerships owned by Allied Waste or subsidiaries
of Allied Waste."
(f) Amendment of Section 6.09A. Paragraph (c) of Section 6.09A of the
Credit Agreement is hereby amended by replacing the phrase "and (vi)" in such
paragraph (c) with the following phrase:
", (vi) transactions pursuant to which the Ref-Fuel Subsidiaries lease
trucks, construction equipment, containers and/or other equipment to
subsidiaries of Allied Waste and (vii)".
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(g) Amendment of Section 6.13A. Section 6.13A of the Credit Agreement is
hereby amended by deleting the table set forth in such Section in its entirety
and replacing it with the following table:
" Period
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Minimum Ratio
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December 31, 1999 to September 30, 2000 1.75 to 1.00
December 31, 2000 to September 30, 2001 2.25 to 1.00
December 31, 2001 to September 30 2002 2.25 to 1.00
December 31, 2002 to September 30, 2003 2.50 to 1.00
December 31, 2003 to September 30, 2004 2.75 to 1.00
December 31, 2004 and thereafter 3.00 to 1.00"
(h) Amendment of Section 6.14A. Section 6.14A of the Credit Agreement is
hereby amended by deleting the table set forth in such Section in its entirety
and replacing it with the following table:
" Period
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Maximum Ratio
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December 31, 1999 to September 30, 2000 6.25 to 1.00
December 31, 2000 to September 30, 2001 5.50 to 1.00
December 31, 2001 to September 30 2002 5.00 to 1.00
December 31, 2002 to September 30, 2003 4.50 to 1.00
December 31, 2003 to September 30, 2004 4.00 to 1.00
December 31, 2004 and thereafter 3.50 to 1.00"
SECTION 2. Waiver of Section 6.02A. The provisions of Section 6.02A are
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hereby waived to the extent necessary to permit the 2001 Senior Notes to be
secured on a pari passu basis with the AWNA Senior Notes and the BFI Indenture
Debt.
SECTION 3 . Amendment of Shared Collateral Security Documents. If Allied
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Waste and the Borrower elect, at the time of issuance of the 2001 Senior Notes,
to have the obligations in respect of the 2001 Senior Notes secured by the Liens
on the collateral under the Shared Collateral Security Agreement and the Shared
Collateral Pledge Agreement, the Borrower, Allied Waste and Chase, in its
capacity as Collateral Trustee, (a) shall cause each of the Shared Collateral
Security Agreement, the Shared Collateral Pledge Agreement and the Collateral
Trust Agreement to be amended (x) to include obligations in respect of the 2001
Senior Notes in the definitions of (i) "Obligations" under the Shared Collateral
Security Agreement and the Shared Collateral Pledge Agreement and (ii) "Secured
Obligations" under the Collateral Trust Agreement, (y) to include the trustee
under the 2001 Indenture as a "Trustee" and a "Secured Party" (for the benefit
of the holders of the 2001 Senior Notes) under such agreements and (z) and to
make such other conforming changes to such agreements as may be necessary or
desirable in connection with the foregoing and (b) agree to take all other
actions, including executing, filing, amending and recording financing
statements and all other documents or instruments as may be deemed necessary or
desirable to grant and perfect the Liens under the Shared Collateral Pledge
Agreement and Shared Collateral Security Agreement securing obligations in
respect of the 2001 Senior Notes, all at the expense of the Borrower and Allied
Waste. The Required Lenders hereby consent to such amendments and authorize the
Collateral Trustee to enter into such amendments and take the other actions
contemplated by the foregoing.
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SECTION 4. Representations and Warranties. To induce the other parties
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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 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.
(c) After giving effect to the agreements and waivers herein, no Default or
Event of Default has occurred and is continuing.
SECTION 5. Effectiveness. This Amendment shall become effective on the
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first date on which all of the following conditions shall have been satisfied,
which date shall in no event be later than February 28, 2001 (the "Amendment
Effective Date") : (a) the Borrower or Allied Waste shall have issued 2001
Senior Notes for gross cash proceeds of not less than $500,000,000 pursuant to a
public offering, a transaction pursuant to Rule 144A promulgated under the
Securities Act of 1933 or other private placement transaction (the "Offering"),
(b) 100% of the Net Available Proceeds of the Offering shall have been used
substantially simultaneously with the issuance of such 2001 Senior Notes to
prepay outstanding Senior Term Loans, pro rata, in accordance with the
respective principal amounts thereof, (c) if the obligations in respect of the
2001 Senior Notes are to be secured under the Shared Collateral Pledge Agreement
and Shared Collateral Security Agreement, the Administrative Agent, the
Collateral Agent and the Collateral Trustee shall have received opinions of
outside counsel for Allied Waste and the Borrower satisfactory to them covering
such matters as the Administrative Agent and the Collateral Agent may reasonably
request with respect to the matters contemplated by Section 2 of this Amendment
(Allied Waste and the Borrower hereby directing such counsel to deliver such
opinions), and (d) the Administrative Agent shall have received counterparts of
this Amendment that, when taken together, bear the signatures of the Borrower,
Allied Waste and AWNA.
SECTION 6. Effect of Amendment. Except as expressly set forth herein, this
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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. 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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SECTION 7. Costs and Expenses. The Borrower and Allied Waste, jointly and
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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 Cravath, Swaine & Xxxxx, counsel
for the Agent.
SECTION 8. Counterparts. This Amendment may be executed in any number of
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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 9. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Headings. The headings of this Amendment are for purposes of
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reference only and shall not limit or otherwise affect the meaning hereof. I
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N 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
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Name:
Title:
ALLIED WASTE NORTH AMERICA, INC.,
by
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Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent, Collateral Agent and
Collateral Trustee,
by
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Name:
Title:
Name of Institution:
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by
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Name:
Title:
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