EXECUTION COPY
EXHIBIT 10.1
AMENDMENT dated as of April 23, 2002 (this
"Amendment") to the Credit Agreement dated as of July
21, 1999, as amended as of January 25, 2001 and as
amended through November 20, 2001 (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 (f/k/a The Chase Manhattan
Bank), 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. Section 1.01 of the Credit
Agreement is hereby amended, effective as of the Amendment Effective Date (as
defined in Section 3), as follows:
(a) The first sentence of the definition of "Consolidated EBITDA" is
amended to read in its entirety as follows:
"Consolidated EBITDA" means, for any period, Consolidated Net
Income of Allied Waste and its Restricted Subsidiaries, determined without
giving effect to any extraordinary gains included in determining
Consolidated Net Income for such period, plus, without duplication and to
the extent deducted in determining such Consolidated Net Income, the sum
of (a) the aggregate amount of Consolidated Interest Expenses for such
period, (b) the aggregate amount of income tax expense for such period,
(c) all amounts attributable to depreciation and amortization for such
period, (d) all non-cash non-recurring charges during such period,
including charges in respect of costs related to Permitted Acquisitions
(it being understood that (i) non-cash non-recurring charges shall not
include accruals for closure and post-closure liabilities and (ii) charges
shall be deemed non-cash charges until the period that cash disbursements
attributable to such charges are made, at which point such charges shall
be deemed cash charges; provided that, for purposes of this clause (d),
Allied Waste shall be required to monitor actual cash disbursements only
for those non-cash charges that exceed $1,000,000 individually and
$10,000,000 in the aggregate in any fiscal year), (e) all cash charges
attributable to consummation of the Transactions during such period, (f)
non-recurring management fees paid to Apollo and Blackstone, (g) all
non-recurring cash charges incurred in connection with Permitted
Acquisitions, Investments permitted under Sections 6.05(A)(a), (h) or (i)
or Sections 6.05B(a), (h) or (i) and Indebtedness permitted under Section
6.01A or Section 6.01B, (h) all losses attributable to the unwinding of
interest
2
rate swaps associated with the prepayment of associated Senior Term Loans
during such period, and (i) all non-cash losses attributable to SFAS 133,
SFAS 142 or SFAS 144 and minus, without duplication and to the extent
added to revenues in determining Consolidated Net Income for such period,
(A) all non-cash non-recurring gains during such period, (B) all gains
attributable to the unwinding of interest rate swaps associated with the
prepayment of associated senior Term Loans during such period and (C) all
non-cash gains attributable to SFAS 133, all as determined on a
Consolidated basis with respect to Allied Waste and the Restricted
Subsidiaries."
(b) The definition of "Excess Cash Flow" is amended as follows:
(i) by revising clause (a)(iv) to read as follows: "(iv) the amount
of all depreciation expense, amortization expense and other non-cash
charges (including, without limitation, non-cash losses attributable to
SFAS 133, SFAS 142 or SFAS 144), in each case to the extent deducted in
determining Consolidated Net Income",
(ii) by deleting the word "extraordinary" from clauses (a)(vi) and
(b)(ix), and
(iii) by deleting the word "and" immediately prior to clause (b)(ix)
and replacing it with a comma and by adding the following immediately
after clause (b)(ix): "and (x) to the extent included in determining
Consolidated Net Income, all non-cash gains attributable to SFAS 133."
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 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 such
representations and warranties shall be true and correct as of such earlier
date).
(c) After giving effect to the agreements herein, no Default or
Event of Default has occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall become effective on
the first date (the "Amendment Effective 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.
3
SECTION 4. Effect of Amendment. 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. 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.
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 Cravath, Swaine & Xxxxx,
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.
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 /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
ALLIED WASTE NORTH AMERICA, INC.,
by /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative Agent,
Collateral Agent and Collateral Trustee,
by /s/ Xxxxxx X. Xxxxx
__________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Director
