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EXHIBIT 10.70
SEVENTH AMENDMENT TO
CREDIT AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT, dated
as of
September 30, 2004 (this "Amendment"), is entered into by and
among ALLIED
RECEIVABLES FUNDING INCORPORATED, as borrower (the "Borrower"),
ALLIED WASTE
NORTH AMERICA, INC., as the servicer (the "SERVICER"), BLUE
RIDGE ASSET FUNDING
CORPORATION, as a lender ("Blue Ridge"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as
the Agent (the "Agent") and as Liquidity Bank and as Lender
Group Agent,
ATLANTIC ASSET SECURITIZATION CORP., as a lender ("Atlantic
Asset") and CALYON
NEW YORK BRANCH, as the Atlantic Group Agent (in such capacity,
the "Atlantic
Group Agent") and as an Atlantic Liquidity Bank (in such
capacity, the "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 Borrower, Servicer, Blue Ridge and Agent have
entered into
that certain Credit and Security Agreement, dated as of March 7,
2003 (as
amended, restated, supplemented or otherwise modified to the
date hereof, the
"Agreement");
WHEREAS, the Borrower, Servicer, Blue Ridge and Agent desire to
amend the
Agreement in certain respects as hereinafter set forth;
WHEREAS, this Amendment shall constitute the "Assignment
Agreement"
pursuant to which each party in the Atlantic Group becomes a
party to the
Agreement;
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 hereby amended as follows:
(a) Atlantic/Calyon Joinder.
(i) Each of the parties to the Agreement agrees that, from
and after the date hereof, (w) Atlantic Asset shall be a Conduit
and
Lender under the Agreement, (x) Calyon shall be the Atlantic
Group
Agent and a Lender Group Agent under the Agreement, (y) Calyon
shall
be an Atlantic Liquidity Bank under the Agreement and (z) each
of
them shall have all of the rights, duties and obligations of
a
Conduit, a Lender, a Lender Group Agent and a Liquidity Bank,
as
applicable, under the Agreement. Each of Atlantic Asset and
Calyon
hereby
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appoints and authorizes the Agent to take such action on its
behalf
and to exercise such powers under the Agreement as are delegated
to
the Agent by the terms thereof.
(ii) Each of Atlantic Asset and Calyon hereby agree to
assume
the duties and obligations of a Conduit, a Lender, a Liquidity
Bank,
and a Lender Group Agent, as applicable, under the
Agreement.
(b) Changes to Exhibit I.
(i) The following definitions in Exhibit I to the Agreement
are hereby amended as follows:
(A) The definition of "Aggregate Commitment" is hereby 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 the date hereof, the Aggregate
Commitment is $230,000,000.
(B) The definition of "Alternate Base Rate" is hereby amended
and
restated in its entirety as follows:
"Alternate Base Rate: For any Lender Group on any day,
such rate shall be equal to a rate per annum equal to the
higher as of such day of (A) the Prime Rate, or (B) one-half
of one percent (0.50%) above the Federal Funds Effective
Rate
(for purposes of determining the Alternate Base Rate for any
day, changes in such Prime Rate or such Federal Funds
Effective Rate shall be effective on the date of each such
change)."
(C) The definition of "Broken Funding Costs" is hereby amended
and
restated in its entirety as follows:
"Broken Funding Costs: For (i) any Lender Group on any
day, as defined in the related Assignment Agreement;
(ii) the Blue Ridge Group: (A) in the case of a CP Rate
Loan made by Blue Ridge, has its principal reduced without
compliance by Borrower with the notice requirements
hereunder,
(B) in the case of a CP Rate Loan made by Blue Ridge or a
LIBO
Rate Loan made by a Blue Ridge Liquidity Bank, does not
become
subject to an Aggregate Reduction following the delivery of
any Reduction Notice, (C) in the case of a CP Rate Loan made
by Blue Ridge, is assigned under the Blue Ridge
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Liquidity Agreement, or (D) in the case of a LIBO Rate Loan
made by a Blue Ridge Liquidity Bank, is terminated or
reduced
prior to the last day of its Interest Period, an amount
equal
to the excess, if any, of (I) the related CP Costs or
Interest
(as applicable) that would have accrued during the remainder
of the tranche periods for Blue Ridge's Commercial Paper
determined by the Blue Ridge Agent to relate to such Loan or
Interest Periods (as applicable) subsequent to the date of
such reduction, assignment or termination (or in respect of
clause (B) above, the date such Aggregate Reduction was
designated to occur pursuant to the Reduction Notice) of the
principal of such Loan if such reduction, assignment or
termination had not occurred or such Reduction Notice had
not
been delivered, over (II) the sum of (x) to the extent all
or
a portion of such principal is allocated to another Loan
made
by the Blue Ridge Group, the amount of CP Costs of Blue
Ridge
or Interest owed to the Blue Ridge Liquidity Banks actually
accrued during the remainder of such period on such
principal
for the new Loan, and (y) to the extent such principal is
not
allocated to another Loan made by the Blue Ridge Group, the
income, if any, actually received during the remainder of
such
period by the holder of such Loan from investing the portion
of such principal not so allocated; in the event that the
amount referred to in clause (II) exceeds the amount
referred
to in clause (I), the relevant Blue Ridge Group Lender or
Lenders agree to pay to Borrower the amount of such excess;
and
(iii) the Atlantic Group: the amount, if any, by which
(a) the CP Costs or Interest, as applicable, for any Loan
funded by the Atlantic Group which would have accrued during
the related Settlement Period on the prepayments of such
Loans
relating to such Settlement Period, as applicable, had such
prepayments not occurred, exceeds (b) the income, if any,
received by the Atlantic Group investing the proceeds of
such
prepayments.
All Broken Funding Costs shall be due and payable hereunder
upon demand."
(D) The definition of "Commitment" is hereby amended and
restated
in its entirety as follows:
"Commitment: For each Liquidity Bank that is part of any
Lender Group, the commitment of such Liquidity Bank to make
Loans to Borrower hereunder in the event the related Conduit
elects not to fund such Lender Group's Lender Group Share of
any Advance in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such
Liquidity Bank's name on Schedule A to the
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Agreement (in the case of the initial Blue Ridge Liquidity
Banks or initial Atlantic Liquidity Banks) or the amount set
forth opposite such Liquidity Bank's name on Schedule I to
the
related Assignment Agreement (in the case of the other
Liquidity Banks)."
(E) The definition of "Commitment Termination Date" is
hereby
amended and restated in its entirety as follows:
"Commitment Termination Date: May 31, 2005."
(F) The definition of "CP Costs" is hereby amended and restated
in
its entirety as follows:
"CP Costs: For (i) any Lender Group on any day, as
defined in the related Assignment Agreement;
(ii) the Blue Ridge Group, including any Loan made by
the Blue Ridge Group that is made by the Blue Ridge
Liquidity
Banks, but which Loans incur CP Costs in accordance with
Sections 1.2 or 1.6(c): for each day, the sum of (A)
discount
or interest accrued on Pooled Commercial Paper on such day,
plus (B) any and all accrued commissions in respect of
placement agents and Blue Ridge's commercial paper dealers,
and issuing and paying agent fees incurred, in respect of
such
Pooled Commercial Paper for such day, plus (C) other costs
associated with funding small or odd-lot amounts with
respect
to all receivable purchase facilities which are funded by
Pooled Commercial Paper for such day, minus (D) any accrual
of
income net of expenses received on such day from investment
of
collections received under all receivable purchase or
financing facilities funded substantially with Pooled
Commercial Paper, minus (E) any payment received on such day
net of expenses in respect of Broken Funding Costs (or
similar
costs) related to the prepayment of any investment of Blue
Ridge pursuant to the terms of any receivable purchase or
financing facilities funded substantially with Pooled
Commercial Paper; in addition to the foregoing costs, if
Borrower shall request any Advance during any period of time
determined by the Blue Ridge Agent in its sole discretion to
result in incrementally higher CP Costs applicable to Blue
Ridge's Lender Group Share of such Advance, the principal
associated with Blue Ridge's Lender Group Share of such
Advance shall, during such period, be deemed to be funded by
Blue Ridge in a special pool (which may include capital
associated with other receivable purchase or financing
facilities) for purposes of determining such additional CP
Costs applicable only to such special pool and charged each
day during such period against such principal; and
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(iii) the Atlantic Group: to the extent that Atlantic
funds a Loan for any Settlement Period by issuing Commercial
Paper, the rate (or if more than one rate, the weighted
average of the rates, and including all dealer fees related
to
such Commercial Paper of Atlantic and all costs associated
with funding small or odd lot amounts) at which Commercial
Paper of Atlantic having a term equal to such Settlement
Period and to be issued to fund such Loan may be sold by any
placement agent or commercial paper dealer selected by the
Atlantic Group Agent on behalf of Atlantic, as agreed
between
each such agent or dealer and the Atlantic Group Agent and
notice of which has been given by the Agent to the Servicer;
provided if the rate (or rates) as agreed between any such
agent or dealer and the Atlantic Group Agent for any
Settlement Period for any Loan is a discount rate (or
rates),
then such rate shall be the rate (or if more than one rate,
the weighted average of the rates) resulting from converting
such discount rate (or rates) to an interest-bearing
equivalent rate per annum."
(G) The definition of "Default Rate" is hereby amended and
restated in its entirety as follows:
"Default Rate: For any Lender Group on any day, a rate
per annum equal to the sum of (A) the Alternate Base Rate
for
such Lender Group plus (B) 2.00%, changing when and as such
Alternate Base Rate changes."
(H) The definition of "Downgrading Event" is hereby amended
and
restated in its entirety as follows:
"Downgrading Event: For (i) any Lender Group on any day,
as defined in the related Assignment Agreement;
(ii) the Blue Ridge Group: with respect to any Person
means the lowering of the rating with regard to the
short-term
securities of such Person to below (A) A-1 by S&P, or (B)
P-1
by Moody's; and
(iii) Atlantic Group: with respect to any Person means
the lowering of the rating with regard to the short-term
securities of such Person to below (A) A-1 by S&P, (B) P-1
by
Moody's or (C) F1 by Fitch Ratings."
(I) The definition of "Eligible Assignee" is hereby amended
and
restated in its entirety as follows:
"Eligible Assignee: For (i) any Lender Group on any day,
as defined in the related Assignment Agreement;
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(ii) the Blue Ridge Group: a commercial bank having a
combined capital and surplus of at least $250,000,000 with a
rating of its (or its holding company's) short-term
securities
equal to or higher than (A) A-1 by S&P and (B) P-1 by
Moody's;
and
(iii) the Atlantic Group: a commercial bank having a
combined capital and surplus of at least $250,000,000 with a
rating of its (or its holding company's) short-term
securities
equal to or higher than (A) A-1 by S&P, (B) P-1 by Moody's
and
(C) F1 by Fitch Ratings."
(J) The definition of "Federal Funds Effective Rate" is
hereby
amended and restated in its entirety as follows:
"Federal Funds Effective Rate: For any Lender Group on
any day, including any Loan made by such Lender Group that
is
made by the related Liquidity Banks, for any day for any
period, a fluctuating interest rate per annum for each day
during such period equal to (A) the weighted average of the
rates on overnight federal funds transactions with members
of
the Federal Reserve System arranged by federal funds
brokers,
as published for such day (or, if such day is not a Business
Day, for the preceding Business Day) by the Federal Reserve
Bank of New York in the Composite Closing Quotations for
U.S.
Government Securities; or (B) if such rate is not so
published
for any day which is a Business Day, the average of the
quotations at approximately 11:30 a.m. (New York City time)
for such day on such transactions received by such Lender
Group's Lender Group Agent from three federal funds brokers
of
recognized standing selected by it."
(K) The definition of "Interest Period" is hereby amended
and
restated in its entirety as follows:
"Interest Period: For (i) any Lender Group on any day
(A) if Interest for such Loan is
calculated on the basis of the LIBO Rate, a period
of one, two, three or six months, or such other
period as may be mutually agreeable to the related
Lender Group Agent and Borrower, commencing on a
Business Day selected by Borrower or such Lender
pursuant to this Agreement. Such Interest Period
shall end on the day in the applicable succeeding
calendar month which corresponds numerically to
the beginning day of such Interest Period,
provided, however, that if there is no such
numerically corresponding day in
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such succeeding month, such Interest Period shall
end on the last Business Day of such succeeding
month; or
(B) if Interest for such Loan is
calculated on the basis of the Alternate Base
Rate, a period commencing on a Business Day
selected by Borrower and agreed to by the related
Lender Group Agent, provided that no such period
shall exceed one month;
provided, further, however, if any Interest Period would end
on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided,
however, that in the case of Interest Periods corresponding
to
the LIBO Rate, if such next succeeding Business Day falls in
a
new month, such Interest Period shall end on the immediately
preceding Business Day.
In the case of any Interest Period for any Loan which
commences before the Amortization Date and would otherwise
end
on a date occurring after the Amortization Date, such
Interest
Period shall end on the Amortization Date. The duration of
each Interest Period which commences after the Amortization
Date shall be of such duration as selected by the applicable
Lender Group Agent."
(L) The definition of "Interest Reserve" is hereby amended
and
restated in its entirety as follows:
"Interest Reserve: For any Calculation Period and each
Lender Group, the product (expressed as a percentage) of (A)
1.5 times (B) the applicable Alternate Base Rate as of the
immediately preceding Cut-Off Date times (C) a fraction the
numerator of which is the highest Days Sales Outstanding for
the most recent 12 Calculation Periods and the denominator
of
which is 360."
(M) The definition of "LIBO Rate" is hereby amended and
restated
in its entirety as follows:
"LIBO Rate: For any Lender Group on any day and for any
Interest Period, the rate per annum determined on the basis
of
the offered rate for deposits in U.S. dollars of amounts
equal
or comparable to the principal amount of the related Loan
made
by such Lender Group offered for a term comparable to such
Interest Period, which rates appear on a Bloomberg L.P.
terminal, displayed under the address "US0001M [Index] Q
[Go]"
effective as of 11:00 A.M., London time, two Business Days
prior to the first day of such Interest Period, provided
that
if no such
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offered rates appear on such page, the LIBO Rate for such
Interest Period will be the arithmetic average (rounded
upwards, if necessary, to the next higher 1/100th of 1%) of
rates quoted by not less than two major banks in New York,
New
York, selected by applicable Lender Group Agent, at
approximately 10:00 a.m.(New York City time), two Business
Days prior to the first day of such Interest Period, for
deposits in U.S. dollars offered by leading European banks
for
a period comparable to such Interest Period in an amount
comparable to the principal amount of such Loan, divided by
(A) one minus the maximum aggregate reserve requirement
(including all basic, supplemental, marginal or other
reserves) which is imposed against the applicable Lender in
respect of Eurocurrency liabilities, as defined in
Regulation
D of the Board of Governors of the Federal Reserve System as
in effect from time to time (expressed as a decimal),
applicable to such Interest Period plus (B) the Applicable
Margin, as defined in the Fee Letter for such Lender Group.
In any such case, the LIBO Rate shall be rounded, if
necessary, to the next higher 1/100th of 1%."
(N) The definition of "Liquidity Agreement" is hereby amended
and
restated in its entirety as follows:
"Liquidity Agreement: For the Blue Ridge Group, the Blue
Ridge Liquidity Agreement, for the Atlantic Group, the
Atlantic Liquidity Agreement and for any other Lender Group,
as defined in the related Assignment Agreement."
(O) The definition of "Liquidity Commitment" is hereby amended
and
restated in its entirety as follows:
"Liquidity Commitment: As to each Liquidity Bank, its
commitment under the related Liquidity Agreement (which for
Blue Ridge Liquidity Banks and Atlantic Liquidity Banks
shall
equal 102% of its Commitment hereunder and for Liquidity
Banks
related to any other Lender Group shall equal the percentage
of such Liquidity Bank's Commitment as set forth in the
related Assignment Agreement)."
(P) The definition of "Liquidity Termination Date" is hereby
amended and restated in its entirety as follows:
"Liquidity Termination Date: For any Lender Group on any
day:
(A) the date on which such Lender Group's
Liquidity Banks' Liquidity Commitments expire, cease to
be available to the
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applicable Conduit or otherwise cease to be in full
force and effect; or
(B) the date on which a Downgrading Event with
respect to a related Liquidity Bank shall have occurred
and been continuing for not less than 30 days, and
either (I) the Downgraded Liquidity Bank shall not have
been replaced by an Eligible Assignee pursuant to the
applicable Liquidity Agreement, or (II) the Liquidity
Commitment of such Downgraded Liquidity Bank shall not
have been funded or collateralized in such a manner that
will avoid a reduction in or withdrawal of the credit
rating applied to the Commercial Paper issued by the
Conduit to which such Liquidity Agreement applies by any
of the rating agencies then rating such Commercial
Paper.
(Q) The definition of "Prime Rate" is hereby amended and
restated
in its entirety as follows:
"Prime Rate: For any Lender Group on any day, a rate per
annum equal to the prime rate of interest announced from
time
to time by the related Lender Group Agent (which is not
necessarily the lowest rate charged to any customer),
changing
when and as said prime rate changes."
(R) The definition of "Rating Agency Condition" is hereby
amended
and restated in its entirety as follows:
"Rating Agency Condition: For (i) any Lender Group on
any day, as defined in the related Assignment Agreement;
(ii) for the Blue Ridge Group: that Blue Ridge has
received any required written notice from S&P and Moody's
that
an amendment, a change or a waiver will not result in a
withdrawal or downgrade of the then current ratings on Blue
Ridge's Commercial Paper; and
(iii) the Atlantic Group: that Atlantic has received any
required written notice from S&P, Fitch Ratings and
Moody's
that an amendment, a change or a waiver will not result in a
withdrawal or downgrade of the then current ratings on
Atlantic's Commercial Paper."
(S) The definition of "Receivable" is hereby amended by
replacing
such definition in its entirety with the following:
"Receivable: All indebtedness and other obligations owed
to Borrower or any Originator (at the time it arises, and
before giving effect
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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 or
(ii) "InfoPro System", excluding the Excluded InfoPro System
Divisions and InfoPro System obligations with a class code
of
RESI. 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."
(ii) The following definitions are added in the appropriate
alphabetical
order to Exhibit I to the Agreement:
(A) "Atlantic Group Agent: Calyon."
(B) "Atlantic Asset: Atlantic Asset Securitization Corp
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