exv10w1






EXHIBIT 10.1




FIRST AMENDMENT TO

SECOND AMENDED AND RESTATED

CREDIT AND SECURITY AGREEMENT





     THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT, dated as of
September 19, 2008 (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”), ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Lender,
and CALYON NEW YORK BRANCH (“Calyon”), as Lender Group Agent for the Atlantic Group, as
Atlantic Liquidity Bank and as Agent (in such capacity, the “Agent”). 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 Second Amended and Restated Credit
and Security Agreement, dated as of May 30, 2008 (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.




     (a) The definition of “Change of Control” set forth in Exhibit I to the
Agreement is amended and restated in its entirety to read as follows:




Change of Control: The acquisition by any Person, or two or more Persons acting in
concert of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 35% or more of the
outstanding shares of voting stock of any Loan Party. For the avoidance of doubt, “Change
of Control” shall not include the direct or indirect acquisition of any Loan Party,
including Allied Waste Industries, Inc., by Republic Services, Inc.




     (b) The definition of “Senior Credit Agreement” set forth in Exhibit I to the
Agreement is amended and restated in its entirety to read as follows:




Senior Credit Agreement: The Credit Agreement dated as of July 21, 1999, as
amended and restated as of March 21, 2005, as may be further amended, modified, waived,
restated, supplemented or replaced (including any refinancing thereof) from time to time,
among Allied Waste Industries, Inc., Allied Waste North America, Inc., the lenders party
thereto, including JPMorgan Chase Bank, N.A., as administrative agent and collateral
agent, Citicorp North America, Inc., as syndication agent, UBS Securities LLC, Credit
Suisse First Boston, acting through its Cayman Islands branch, Wachovia Bank, National
Association, Deutsche Bank Trust Company Americas and the Credit Provider, as
co-documentation agents. For the avoidance of doubt, any reference to any section or
article



 









 






of the “Senior Credit Agreement” contained in this Agreement shall be deemed to be
a reference to the most current substantively similar section or article of any restated
or replacement (including any refinancing) credit agreement.




     (c) The cross-reference to Section 9.16 of the Senior Credit Agreement in each of
Section 5.1(o) and Section 7.1(n) of the Agreement is deleted and replaced
with a cross-reference to Section 9.14 of the Senior Credit Agreement.



     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. Further Assurances. The parties hereto agree to enter into additional
amendments to the Agreement, including but not limited to an amendment to the definition of
“Leverage Ratio Trigger”, to incorporate any necessary amendments that may arise as a result of the
proposed merger between Allied Waste Industries, Inc. and a wholly-owned subsidiary of Republic
Services, Inc.



     SECTION 5. Reserved.



     SECTION 6. 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
Calyon incurred by Calyon in connection with the consummation of this Amendment and the
transactions contemplated hereby.



     SECTION 7. Effectiveness. This Amendment shall be effective as of the date hereof
upon satisfaction of the following conditions precedent:




     (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;



2









 






     (b) the Borrower and the Servicer shall be in compliance with each of its covenants set
forth herein and in each of the Transaction Documents to which it is a party;




     (c) no event shall have occurred which constitutes an Amortization Event or an
Unmatured Amortization Event;




     (d) the Termination Date shall not have occurred; and




     (e) the Borrower shall have paid the Amendment Fee (as defined in and in accordance
with the fee letter by and among the Agent, the Borrower and the Servicer dated as of the
date hereof).



     SECTION 8. 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 9. Governing Law. This Amendment has been delivered in New York, New York and
shall be deemed a contract made under and governed by the laws of the State of New York (including
for such purpose Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New
York).



     SECTION 10. 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 11. 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.


[remainder of page intentionally left blank]



3









 





     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:
	 	 

Michael S. Burnett
	 	 
	 

	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	ALLIED WASTE NORTH AMERICA, INC.,	 	 
	 	 	as Servicer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Michael S. Burnett
	 	 
	 

	 	Title:
	 	Treasurer and Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	ATLANTIC ASSET SECURITIZATION LLC,	 	 
	 	 	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 Liquidity Bank,
as Lender Group Agent for the Atlantic Group and as
Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






 









 






Consented to by:




ALLIED WASTE INDUSTRIES, INC. as

Performance Guarantor




	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

Michael S. Burnett
	 	 
	Title:

	 	Senior Vice President and Treasurer