Exhibit 10.128
FIFTH AMENDMENT TO
AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
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 her
