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EXHIBIT 10.6
THIRD AMENDMENT dated as of
July 26, 2006 (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.
A.
Capitalized terms used herein and not otherwise defined herein have
the meanings assigned to such terms in the Credit Agreement, as
amended hereby.
B.
Pursuant to Section 2.23 of the Credit Agreement, the Borrower
has notified the Administrative Agent that the Borrower desires to
amend the Credit Agreement in order to establish an Incremental
Revolving Letter of Credit Facility in the initial amount of
$25,000,000. The Administrative Agent and the Issuing Bank and
Lenders that will provide such Incremental Revolving Letter of
Credit Facility are willing so to amend the Credit Agreement, on
the terms and subject to the conditions set forth in this
Amendment, which is the Incremental Revolving Letter of Credit
Facility Amendment referred to in Section 2.23 of 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. (i) Section 1.01 is revised by
changing the definitions of the following terms in their entirety
to read as set forth below:
" Applicable Percentage "
means, (a) with respect to any Revolving Lender, the
percentage of the total Revolving Commitments represented by such
Lender’s Revolving Commitment, (b) with respect to any
PC Revolving Lender, the percentage of the total PC Revolving
Commitments represented by such PC Revolving Lender’s PC
Revolving Commitment, and (c) with respect to any Tranche A
Lender, the percentage of the Total Tranche A Credit-Linked Deposit
represented by such Lender’s Tranche A Credit-Linked Deposit.
If the Revolving Commitments or the PC Revolving Commitments have
terminated or expired, the Applicable Percentages with respect to
any Revolving Lender or PC Revolving Lender, respectively, shall be
determined based upon the Revolving
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Commitments or PC Revolving Commitments, as the case may be,
most recently in effect, giving effect to any assignments. If the
Tranche A Credit-Linked Deposits shall have been applied in full to
reimburse Tranche A LC Disbursements, the Applicable Percentage
with respect to any Tranche A Lender shall be determined based upon
the Total Tranche A Credit-Linked Deposit most recently in effect,
giving effect to any assignments.
" Class ", when used in
reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Loans, Term
Loans or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving
Commitment, PC Revolving Commitment, Term Loan Commitment,
Swingline Commitment or Tranche A Credit-Linked Deposit.
" Commitment " means the
Revolving Commitments, the PC Revolving Commitments, the Term Loan
Commitments, the Swingline Commitments and the Tranche A
Credit-Linked Deposits, or any combination thereof (as the context
requires).
" Issuing Banks " means
(a) JPMorgan Chase Bank, N.A. and any other Lender designated
as an Issuing Bank (including any PC Issuing Bank) in accordance
with the provisions of Section 2.05(b)(vii), in each case in
its capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in
Section 2.05(b)(vii) and (b) in respect of each Existing
Letter of Credit, the issuer thereof. An Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of the Issuing Bank, in which case the term "Issuing
Banks" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
" LC Disbursement " means a
Revolving LC Disbursement, a PC LC Disbursement or a Tranche A LC
Disbursement.
" LC Exposure " means, at
any time the Revolving LC Exposure, the PC LC Exposure and the
Tranche A LC Exposure at such time.
" Lenders " means the
Persons listed on Schedule 2.01 or Schedule 2.01A and any
other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases
to be a party hereto pursuant to an Assignment and Acceptance or
otherwise ceases to have any Loans or Commitments hereunder. Unless
the context otherwise requires, the term "Lenders" includes the
Swingline Lenders, the PC Revolving Lenders and the Tranche A
Lenders.
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" Letter of Credit " means
any Existing Letter of Credit, any Revolving Letter of Credit, any
PC Letter of Credit or any Tranche A Letter of Credit.
" Required Lenders " means,
at any time, Lenders having Revolving Exposures, PC Revolving
Exposures, Term Loans, Tranche A LC Exposure, unused Revolving
Commitments, unused PC Revolving Commitments and Excess Tranche A
Credit-Linked Deposits representing more than 50% of the sum of the
total Revolving Exposures, PC Revolving Exposures, outstanding Term
Loans, Tranche A LC Exposure, unused Revolving Commitments, unused
PC Revolving Commitments and Excess Tranche A Credit-Linked
Deposits at such time.
" Revolving Letter of
Credit " means, at any time, any Letter of Credit issued
pursuant to Section 2.05 of this Agreement, other than Tranche
A Letters of Credit and PC Letters of Credit.
" Tranche A Letters of
Credit " means, at any time, Letters of Credit in an amount
equal to the lesser of (i) the Total Tranche A Credit-Linked
Deposit and (ii) the aggregate amount of outstanding General
Purpose Letters of Credit at such time. General Purpose Letters of
Credit will from time to time be deemed to be Tranche A Letters of
Credit or Revolving Letters of Credit in accordance with the
provisions of Section 2.05(a).
(ii) Section 1.01 is further
revised by adding the following defined terms in alphabetical
order:
" General Purpose LC
Exposure " means, at any time, the Revolving LC Exposure and
the Tranche A LC Exposure at such time.
" General Purpose Letters of
Credit " means Revolving Letters of Credit and Tranche A
Letters of Credit.
" PC Issuing Banks" means
The Bank of Nova Scotia and any other PC Revolving Lender
designated as a PC Issuing Bank in accordance with the provisions
of Section 2.05(b)(vii), in each case in its capacity as the
issuer of PC Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.05(b)(vii). A PC Issuing
Bank may, in its discretion, arrange for one or more PC Letters of
Credit to be issued by Affiliates of the PC Issuing Bank, in which
case the term "PC Issuing Banks" shall include any such Affiliate
with respect to PC Letters of Credit issued by such Affiliate.
" PC LC Disbursement "
means a payment made by a PC Issuing Bank pursuant to a PC Letter
of Credit.
" PC LC Exposure " means,
at any time, the sum of (a) the aggregate undrawn amount of
all outstanding PC Letters of Credit at such
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time plus (b) the aggregate amount of all PC LC
Disbursements that have not yet been reimbursed by or on behalf of
the Borrower at such time. The PC LC Exposure of any PC Revolving
Lender at any time shall be its Applicable Percentage of the total
PC LC Exposure at such time.
" PC Letters of Credit "
means any Letter of Credit issued pursuant to Section 2.05 of
this Agreement other than General Purpose Letters of Credit.
" PC Revolving Availability
Period " means the period from and including the Third
Amendment Effective Date to but excluding the earlier of the PC
Revolving Maturity Date and the date of termination of the PC
Revolving Commitments.
" PC Revolving Commitment "
means, with respect to each PC Revolving Lender, the commitment of
such PC Revolving Lender to acquire participations in PC Letters of
Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such PC Revolving Lender’s PC LC Exposure
hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08, (b) reduced or increased from
time to time pursuant to assignments by or to such PC Revolving
Lender pursuant to Section 9.04 or (c) increased from
time to time pursuant to the provisions set forth below. The amount
of each PC Revolving Lender’s PC Revolving Commitment at any
time shall be set forth on Schedule 2.01A, opposite such PC
Revolving Lender’s name, in the Assignment and Acceptance
pursuant to which such PC Revolving Lender shall have assumed its
PC Revolving Commitment, or in an instrument increasing such
commitment or adding additional commitments referred to below, as
applicable. The aggregate amount of the PC Revolving Lenders’
PC Revolving Commitments on the Third Amendment Effective Date is
$25,000,000. Notwithstanding the foregoing, the PC Revolving
Commitments of any then-existing PC Revolving Lender may be
increased from time to time and any Lender may provide additional
PC Revolving Commitments, in each case, pursuant to a written
instrument signed by the Borrower, each PC Issuing Bank, each PC
Revolving Lender increasing its PC Revolving Commitment (and if
applicable, each Lender providing an additional PC Revolving
Commitment) and the Administrative Agent; provided ,
however , that (i) at the effective time of any such
increase, no Default has occurred and is continuing and
(ii) after giving effect to any such increase, the total PC
Revolving Commitments do not exceed $35,000,000. Any such
instrument shall specify the amount of the PC Revolving Commitment
of each PC Revolving Lender after giving effect to all such
increases and/or additional commitments and the effective date of
the increases and/or additional commitments in PC Revolving
Commitments provided for therein. The Administrative Agent is
authorized to amend Schedule 2.01A to reflect any such
increases and/or additional
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commitments, but such amendment shall not be required in order
for any such increase and/or additional commitments to be
effective. Notwithstanding anything to the contrary in any other
Loan Document (including Section 9.02 hereof), any increase in
or addition to the PC Revolving Commitments of existing PC
Revolving Lenders in accordance with the foregoing provisions will
not require the approval of any other Lenders or Issuing Banks.
" PC Revolving Lender "
means a Lender with a PC Revolving Commitment or, if the PC
Revolving Commitments have terminated or expired, a Lender with PC
LC Exposure.
" PC Revolving Maturity
Date " means January 15, 2010; provided ,
however , that the PC Revolving Maturity Date will
automatically become September 1, 2008 if all the 8.50% Notes
are not extended, renewed or refinanced with Refinancing
Indebtedness on or prior to September 1, 2008 (it being
understood that the PC Revolving Maturity Date will be the earliest
date required in connection with any such failure to extend, renew
or refinance any such notes with Refinancing Indebtedness prior to
the dates specified in respect of such notes therein).
" Third Amendment " means
the Third Amendment dated as of July 26, 2006 to this
Agreement, which is the Incremental Revolving Letter of Credit
Facility Amendment contemplated by Section 2.23.
" Third Amendment Effective
Date " means the date on which the Third Amendment became
effective in accordance with its terms, which date is July 26,
2006.
(b) Amendment of
Section 2.05. Section 2.05 of the Credit Agreement is
amended to read in its entirety as follows:
"SECTION 2.05. Letters of
Credit. (a) General. On the Restatement Effective Date,
the Existing Letters of Credit will automatically, without any
action on the part of any Person, be deemed to be Letters of Credit
issued hereunder for the account of the Borrower for all purposes
of this Agreement and the other Loan Documents. In addition,
subject to the terms and conditions set forth herein (including,
with respect to issuances of Tranche A Letters of Credit,
Section 2.20), the Borrower may request the issuance of (and
the applicable Issuing Bank, as specified by the Borrower, shall
issue) (i) Tranche A Letters of Credit, at any time and from
time to time during the Tranche A Availability Period, (ii)
Revolving Letters of Credit, at any time and from time to time
during the Revolving Availability Period and (iii) PC Letters
of Credit, at any time and from time to time during the PC
Revolving Availability Period, in each case for the
Borrower’s own account or for the account of any other member
of the Allied Group (provided that the Borrower will be a
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co-applicant and a co-obligor with respect to each Letter of
Credit issued for the account of any other member of the Allied
Group), in a form reasonably acceptable to the Administrative Agent
and the relevant Issuing Bank; provided , however ,
that PC Letters of Credit shall only be issued by PC Issuing Banks,
and no Issuing Bank that has not agreed to be a PC Issuing Bank
shall be required to issue any PC Letters of Credit. For purposes
hereof, (i) General Purpose Letters of Credit shall at all
times and from time to time be deemed to be Tranche A Letters of
Credit in the amount specified in clause (i) of the definition
of Tranche A Letters of Credit and be deemed to be Revolving
Letters of Credit only to the extent, and in an amount by which,
the aggregate amount of outstanding Letters of Credit exceeds such
amount specified in clause (i) of the definition of Tranche A
Letters of Credit, (ii) drawings under any General Purpose
Letter of Credit shall be deemed to have been made under Revolving
Letters of Credit for so long as, and to the extent that, there are
any undrawn Revolving Letters of Credit outstanding (and thereafter
shall be deemed to have been made under Tranche A Letters of
Credit) and (iii) any General Purpose Letter of Credit that
expires or terminates will be deemed to be a Revolving Letter of
Credit, for so long as, and to the extent that, there are
outstanding Revolving Letters of Credit immediately prior to such
expiration or termination; provided , however , that,
at any time during which an Event of Default shall have occurred
and be continuing, (A) General Purpose Letters of Credit shall
be deemed to be Revolving Letters of Credit and Tranche A Letters
of Credit, (B) drawings under General Purpose Letters of
Credit shall be deemed to have been made under Revolving Letters of
Credit and Tranche A Letters of Credit and (C) any General
Purpose Letter of Credit that expires or terminates shall be deemed
to be a Revolving Letter of Credit and a Tranche A Letter of
Credit, in each case pro rata based upon (1) the
Revolving LC Exposure immediately prior to such Event of Default
determined in accordance with the foregoing provisions of this
Section 2.05(a) and (2) the Tranche A LC Exposure
immediately prior to such Event of Default determined in accordance
with the foregoing provisions of this Section 2.05(a). To the
extent necessary to implement the foregoing, the identification of
a General Purpose Letter of Credit as a Revolving Letter of Credit
or a Tranche A Letter of Credit may change from time to time and a
portion of a General Purpose Letter of Credit may be deemed to be a
Tranche A Letter of Credit and the remainder be deemed to be a
Revolving Letter of Credit. Notwithstanding the foregoing, the
entire face amount of any General Purpose Letter of Credit with an
expiration date after the Revolving Maturity Date shall at all
times be deemed to be a Tranche A Letter of Credit, subject to the
limitations set forth in clause (i) of the third sentence of
this paragraph (a). In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with,
an Issuing Bank
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relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance,
Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the applicable
Issuing Bank) to the relevant Issuing Bank and the Administrative
Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall
comply with subparagraph (i) of this paragraph), the amount of
such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested
by an Issuing Bank, the Borrower (and any other member of the
Allied Group for whose account such Letter of Credit is issued)
shall also submit a letter of credit application on such Issuing
Bank’s standard form in connection with any request for a
Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the Borrower shall be deemed
to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension, (A) the General
Purpose LC Exposure shall not exceed the sum of the total Revolving
Commitments and the Total Tranche A Credit-Linked Deposit,
(B) the total Revolving Exposures shall not exceed the total
Revolving Commitments, (C) the Tranche A LC Exposure shall not
exceed the Total Tranche A Credit-Linked Deposit and (D) the
PC LC Exposure shall not exceed the total PC Revolving
Commitments.
(i) Expiration Date. Each
Letter of Credit shall expire at or prior to the close of business
on (A) with respect to any Revolving Letter of Credit, the
date that is five Business Days prior to the Revolving Maturity
Date, (B) with respect to any PC Letter of Credit, the date
that is five Business Days prior to the PC Revolving Maturity Date
and (C) with respect to any Tranche A Letter of Credit, the
date that is five Business Days prior to the Tranche A Maturity
Date.
(ii) Participations.
(A) By the issuance of a Revolving Letter of Credit (or an
amendment to a Revolving Letter of Credit increasing the amount
thereof) and without any further action on the part of the
applicable Issuing Bank or the Lenders, such Issuing Bank hereby
grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the applicable Issuing Bank, a participation in such
Revolving Letter
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of Credit (including each Existing Letter of Credit) equal to
such Revolving Lender’s Applicable Percentage of the
aggregate amount available to be drawn under such Revolving Letter
of Credit. By the issuance of a PC Letter of Credit (or an
amendment to a PC Letter of Credit increasing the amount thereof)
and without any further action on the part of the applicable PC
Issuing Bank or the Lenders, such PC Issuing Bank hereby grants to
each PC Revolving Lender, and each PC Revolving Lender hereby
acquires from the applicable PC Issuing Bank, a participation in
such PC Letter of Credit equal to such PC Revolving Lender’s
Applicable Percentage of the aggregate amount available to be drawn
under such PC Letter of Credit. In consideration and in furtherance
of the foregoing, each Revolving Lender and each PC Revolving
Lender, as applicable, hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for the account of the
applicable Issuing Bank, such Lender’s Applicable Percentage
of each Revolving LC Disbursement (in the case of Revolving
Lenders) and each PC LC Disbursement (in the case of PC Revolving
Lenders), made by such Issuing Bank and not reimbursed by the
Borrower or any other account party on the date due as provided in
paragraph (b)(iii) of this Section, or of any reimbursement payment
required to be refunded to the Borrower or any other account party
for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in
respect of Revolving L
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