FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
Exhibit 10.128
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT, dated as of
October 30, 2007 (this “Amendment”), is entered into by and among ALLIED RECEIVABLES
FUNDING INCORPORATED, as Borrower (the “Borrower”), ALLIED WASTE NORTH AMERICA, INC., as
initial Servicer (the “Servicer”), VARIABLE FUNDING CAPITAL COMPANY LLC, as a Conduit
Lender, WACHOVIA BANK, NATIONAL ASSOCIATION (“Wachovia”), as Agent (in such capacity, the
“Agent”), as Lender Group Agent for the VFCC Group and as VFCC Liquidity Bank, ATLANTIC
ASSET SECURITIZATION LLC, as a Conduit Lender, and CALYON NEW YORK BRANCH (“Calyon”), as
Lender Group Agent for the Atlantic Group and as Atlantic Liquidity Bank. Capitalized terms used
and not otherwise defined herein are used as defined in the Agreement (as defined below and amended
hereby).
WHEREAS, the parties hereto have entered into that certain Amended and Restated Credit and
Security Agreement, dated as of May 30, 2006 (as amended, restated, supplemented or otherwise
modified to the date hereof, the “Agreement”);
WHEREAS, the parties hereto desire to amend the Agreement in certain respects as hereinafter
set forth;
NOW THEREFORE, in consideration of the premises and the other mutual covenants contained
herein, the parties hereto agree as follows:
SECTION 1. Amendments. The Agreement is amended as follows:
(a) Section 9.1(h)(iii) of the Agreement is amended by replacing the percentage
“2.5%” where it appears therein with the percentage “4.5%”.
(b) The following new Section 14.14 is added to the Agreement following
existing Section 14.13:
Section 14.14. Ordinary Course.
The Borrower represents and warrants that each remittance of principal or
interest in respect of the Loans by the Borrower to the Lenders hereunder will
have been (i) in payment of a debt incurred by the Borrower in the ordinary
course of business or financial affairs of the Borrower and (ii) made in the
ordinary course of business or financial affairs of the Borrower.
(c) The definition of “Aggregate Commitment” set forth in Exhibit I to the
Agreement is amended and restated in its entirety as follows”
“Aggregate Commitment: On any date of determination, the aggregate
amount of the Liquidity Banks’ Commitments to make Loans hereunder. As of
October 30, 2007, the Aggregate Commitment is $400,000,000.”
(d) The definition of “Receivable” set forth in Exhibit I to the Agreement is
amended and restated in its entirety as follows:
“Receivable: All indebtedness and other obligations owed to Borrower
or any Originator (at the time it arises, and before giving effect to any
transfer or conveyance under the Receivables Sale Agreement) or in which
Borrower or an Originator has a security interest or other interest, including,
without limitation, any indebtedness, obligation or interest constituting an
account, chattel paper, instrument or general intangible, arising in connection
with the sale of goods or the rendering of services by an Originator and all
other obligations of each Obligor in respect thereto, and further includes,
without limitation, the obligation to pay any Finance Charges and sales or use
taxes with respect thereto; provided, however, that
“Receivables” shall only include such indebtedness and other obligations that,
on the date such indebtedness or other obligation arises, are maintained on
either an Originator’s (or the Servicer’s) (i) “Commercial Management System”,
excluding the Excluded CMS Districts; (ii) “InfoPro System”, excluding the
Excluded InfoPro System Divisions and InfoPro System obligations with a class
code of RESI or (iii) “Trux System”, excluding the Excluded Trux System
Divisions. Indebtedness and other rights and obligations arising from any one
transaction, including, without limitation, indebtedness and other rights and
obligations represented by an individual invoice, shall constitute a Receivable
separate from a Receivable consisting of the indebtedness and other rights and
obligations arising from any other transaction; provided,
further, that any indebtedness, rights or obligations referred to in
the immediately preceding sentence shall be a Receivable regardless of whether
the account debtor or Borrower treats such indebtedness, rights or obligations
as a separate payment obligation.”
(e) The following definition is added in the appropriate alphabetical order
to Exhibit I to the Agreement:
“Excluded Trux System Divisions: The Trux System Divisions set forth on
Schedule F to this Agreement, as such schedule may be modified from time
to time in writing by the Borrower, each Originator, each Lender Group Agent and
the Agent.”
(f) Exhibit III to the Agreement is amended and restated in its entirety by
Exhibit III hereto.
(g) Exhibit IV to the Agreement is amended and restated in its entirety by
Exhibit IV hereto.
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(h) Schedule A to the Agreement is amended and restated in its entirety by
Schedule A hereto.
(i) Schedule C to the Agreement is amended and restated in its entirety by
Schedule C hereto
(j) Schedule F hereto is added to the Agreement as Schedule F thereto.
SECTION 2. Representations and Warranties. Each of the Servicer and the Borrower
represents and warrants to the Secured Parties that:
(a) the representations and warranties of the Loan Parties set forth in Article
V of the Agreement (as amended hereby) are true and correct as of the date hereof
(unless stated to relate solely to an earlier date, in which case such representations and
warranties were true and correct as of such earlier date);
(b) no Amortization Event has occurred and is continuing;
(c) its execution and delivery of this Amendment, and its performance of its
obligations under the Agreement (as amended hereby) are within its corporate powers and have
been duly authorized by all necessary corporate action on its part; and
(d) the Agreement (as amended hereby) is the valid and legally binding obligation of
such Person, enforceable against such Person in accordance with its terms.
SECTION 3. Consent of Performance Guarantor. Reference is hereby made to the
Performance Undertaking, and by executing a counterpart to this Amendment, the Performance
Guarantor hereby consents to this Amendment.
SECTION 4. Structuring Fees. In connection with this Amendment and the transactions
contemplated hereby, the Borrower shall pay (or cause to be paid) on or prior to date hereof to
each of Wachovia and Calyon, for their own accounts, a structuring fee (together, the
“Structuring Fees”) in the amount of $50,000 (in an aggregate amount of $100,000 for both
Structuring Fees together) by wire transfer of immediately available funds to the respective
accounts specified by Wachovia and Calyon.
SECTION 5. Costs and Expenses. The Borrower hereby agrees that in addition to any
costs otherwise required to be paid pursuant to the Transaction Documents, the Borrower shall,
promptly following demand therefor, pay the reasonable legal fees and out-of pocket expenses of
each of Wachovia and Calyon and all audit fees and due diligence costs incurred by Wachovia and
Calyon in connection with the consummation of this Amendment and the transactions contemplated
hereby (including, without limitation, the consummation of agreements described in Section
6(b) below and the transactions contemplated thereby).
SECTION 6. Effectiveness. This Amendment shall be effective as of date hereof upon
satisfaction of the following conditions precedent:
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(a) the Agent shall have received (i) counterparts to this Amendment duly executed by
each of the parties hereto and (ii) such other documents, certificates and opinions of
counsel as the Agent may reasonably request;
(b) each of that certain Joinder to Receivables Sale Agreement and that certain
Sixteenth Amendment to the Receivables Sale Agreement, in each case, dated as of the date
hereof, shall have become effective in accordance with its terms;
(c) the Borrower and the Servicer shall each be in compliance with each of its
covenants set forth herein and each of the Transaction Documents to which it is a party;
(d) no event shall have occurred which constitutes an Amortization Event or an
Unmatured Amortization Event;
(e) the Termination Date shall not have occurred; and
(f) the Borrower shall have paid both Structuring Fees in accordance with Section
4 above.
SECTION 7. Reference to and Effect on the Agreement and the Related Documents. Each
reference in the Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like
import shall mean and be, and any references to the Agreement in any other document, instrument or
agreement executed and/or delivered in connection with the Agreement shall mean and be, a reference
to the Agreement as amended hereby. Except as expressly amended by this Amendment, the Agreement
shall continue in full force and effect and is hereby ratified and confirmed.
SECTION 8. Governing Law. This Amendment is governed by and shall be construed in
accordance with the laws of the State of New York, without giving effect to any conflicts of laws
principles that would apply the law of any other jurisdiction.
SECTION 9. Severability. Each provision of this Amendment is severable from every
other provision of this Amendment for the purpose of determining the legal enforceability of any
provision hereof, and the unenforceability of one or more provisions of this Amendment in one
jurisdiction shall not have the effect of rendering such provision or provisions unenforceable in
any other jurisdiction.
SECTION 10. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute one and
the same instrument. Delivery of an executed counterpart of a signature page by facsimile or other
electronic means acceptable to the Agent shall be effective as delivery of a manually executed
counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
ALLIED RECEIVABLES FUNDING INCORPORATED, as Borrower | ||||||
By: | ||||||
Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Treasurer | ||||||
ALLIED WASTE NORTH AMERICA, INC., as Servicer |
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By: | ||||||
Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Treasurer and Vice President |
Fifth Amendment to A&R Credit and Security Agreement
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VARIABLE FUNDING CAPITAL COMPANY LLC, |
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as a Conduit Lender | ||||||
By: | Wachovia Capital Markets, LLC, |
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as Attorney-in-Fact | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
WACHOVIA BANK, NATIONAL |
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ASSOCIATION, as VFCC Liquidity Bank, as |
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Lender Group Agent for the VFCC Group and as |
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Agent | ||||||
By: | ||||||
Name: | ||||||
Title: |
Fifth Amendment to A&R Credit and Security Agreement
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ATLANTIC ASSET SECURITIZATION LLC, |
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as a Conduit Lender | ||||||
By: |
Calyon New York Branch, as | |||||
attorney-in-fact | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
CALYON NEW YORK BRANCH, as Atlantic |
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Liquidity Bank and as Lender Group Agent for the |
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Atlantic Group | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
By: | ||||||
Name: | ||||||
Title: |
Fifth Amendment to A&R Credit and Security Agreement
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Consented to by: | ||||
ALLIED WASTE INDUSTRIES, INC. | ||||
as Performance Guarantor | ||||
By: |
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Name: |
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Title: |
Fifth Amendment to A&R Credit and Security Agreement
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Exhibit III
Originators, Jurisdiction of Organization, Places of Business, Chief Executive Office,
Locations of Records, Federal Employer Identification Number(s), Other Names
Locations of Records, Federal Employer Identification Number(s), Other Names
(Attached)
Exhibit IV
Names of Collection Banks; Lock-Boxes & Collection Accounts
[To be provided by Allied]
Schedule A
LENDER GROUPS, LENDER GROUP AGENTS, CONDUIT LENDERS, AND LIQUIDITY
BANKS AND COMMITMENTS OF LIQUIDITY BANKS
BANKS AND COMMITMENTS OF LIQUIDITY BANKS
I. VFCC Group |
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Conduit Lender:
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Variable Funding Capital Company LLC | |||
Lender Group Agent:
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Wachovia Bank, National Association | |||
Liquidity Banks:
|
Wachovia Bank, National Association | |||
Commitment:
|
$200,000,000 | |||
II. Atlantic Group |
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Conduit Lender: |
Atlantic Asset Securitization LLC | |||
Lender Group Agent:
|
Calyon New York Branch | |||
Liquidity Banks:
|
Calyon New York Branch | |||
Commitment:
|
$200,000,000 |
Schedule C
Originators
(See the list of Originators set forth on Exhibit III)
Schedule F
Excluded Trux System Divisions
[To be provided by Allied]