Sixth Amendment to Receivables Sale Agreement by Allied Receivables Funding Inc. and Allied Waste North America, Inc.
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Summary
This amendment updates the Receivables Sale Agreement between Allied Receivables Funding Inc. (the buyer) and Allied Waste North America, Inc. along with other originators. It revises definitions, adds new schedules, and modifies certain representations and warranties. The amendment also includes a waiver for the removal of specific receivables and clarifies that the agreement remains in effect except as changed by this amendment. The amendment becomes effective when a related credit security agreement amendment takes effect and is governed by New York law.
EX-10.69 11 p70182exv10w69.txt EX-10.69 EXHIBIT 10.69 SIXTH AMENDMENT TO RECEIVABLES SALE AGREEMENT THIS SIXTH AMENDMENT TO RECEIVABLES SALE AGREEMENT, dated as of September 30, 2004 (this "Amendment"), is entered into by and among ALLIED RECEIVABLES FUNDING INCORPORATED, as buyer (the "Buyer") and ALLIED WASTE NORTH AMERICA, INC. and the undersigned originators (the "Originators"). 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 Receivables Sale Agreement, dated as of March 7, 2003 (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 hereby amended as follows: (a) 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 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." (b) The following definitions are added in the appropriate alphabetical order to Exhibit I to the Agreement: (I) "Excluded CMS Districts: The Commercial Management System Districts set forth on Schedule I 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." (II) "Excluded InfoPro System Divisions: The InfoPro System Divisions set forth on Schedule II 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." (c) Section 1.4(b) is hereby amended and restated in its entirety as follows: "(b) any of the representations and warranties set forth in Section 2.1(i), Section 2.1(j), Section 2.1(r), Section 2.1(s), Section 2.1(t) and Section 2.1(u) are not true when made or deemed made with respect to any Receivable, other than the failure of such representation and warranty to be true from and after September 30, 2004 to and including October 30, 2004 arising from the failure of an Originator to file or cause to be filed on or prior to October 30, 2004 proper UCC termination statements necessary to release all security interests and other rights of any Person in the Receivables, Contracts and Related Security related to the UCC Financing Statements listed on Schedule D to this Agreement," (d) Schedule B hereto is hereby added to the Agreement as Schedule B. (e) Schedule C hereto is hereby added to the Agreement as Schedule C. (f) Schedule D hereto is hereby added to the Agreement as Schedule D. (g) The table set forth in Exhibit II hereto hereby replaces the existing Exhibit II to the Agreement. (h) The table set forth in Exhibit III hereto hereby replaces the existing Exhibit III to the Agreement. -2- SECTION 2. Reference to and Effect on the Agreement and the Related Documents. Upon the effectiveness of this Amendment, (i) each of the Originators hereby reaffirms all representations and warranties made by it in Article II of the Agreement (as amended hereby) and agrees that all such representations and warranties shall be deemed to have been restated as of the effective date of this Amendment, (ii) each of the Originators and the Buyer hereby represents and warrants that no Termination Event shall have occurred and be continuing and (iii) 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.. SECTION 3. Sales of Divisions and Repurchase of Receivables. Each of the Originators and the Buyers hereby request that the Agent waive the application of Section 7.7 of the Agreement to the removal of Receivables from Districts 365 and 1456. The Agent hereby consents to such waiver. SECTION 4. Effectiveness and Effect. This Amendment shall become effective as of the date the Seventh Amendment to the Credit Security Agreement, dated as of the date hereof, becomes effective by its terms (the "Amendment Effective Date"), upon execution by each of the parties hereto and receipt of all executed counterparts of the signature pages by such parties. Except as otherwise amended by this Amendment, the Agreement shall continue in full force and effect and is hereby ratified and confirmed. SECTION 5. Governing Law. This Amendment will be governed by and construed in accordance with the laws of the State of New York. SECTION 6. Severability. Each provision of this Amendment shall be 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 7. 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. -3- Delivery of an executed counterpart of a signature page by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment. [remainder of page intentionally left blank] -4- 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 WASTE NORTH AMERICA, INC. By:_______________________________________ Name: Gregory J. Reddy Title: Assistant Treasurer ALLIED RECEIVABLES FUNDING INCORPORATED ALLIED SERVICES, LLC By: ALLIED WASTE NORTH AMERICA, INC., its Sole Member BFI WASTE SERVICES, LLC By: ALLIED WASTE NORTH AMERICA, INC., its Sole Member BFI WASTE SERVICES OF PENNSYLVANIA, LLC By: ALLIED WASTE NORTH AMERICA, INC., its Sole Member BFI WASTE SERVICES OF MASSACHUSETTS, LLC By: ALLIED WASTE NORTH AMERICA, INC., its Sole Member GREENRIDGE WASTE SERVICES, LLC By: ALLIED WASTE NORTH AMERICA, INC., its Sole Member [additional signatures to follow] [Signature Page to Sixth Amendment to Receivables Sale Agreement for Allied] ALLIED WASTE SYSTEMS, INC. BFI WASTE SYSTEMS OF NORTH AMERICA, INC. ALLIED WASTE TRANSPORTATION, INC. BROWNING-FERRIS INDUSTRIES OF TENNESSEE, INC. DELTA DADE RECYCLING CORP. BROWNING-FERRIS INDUSTRIES OF FLORIDA, INC. BROWNING-FERRIS INDUSTRIES OF OHIO, INC. PSI WASTE SYSTEMS, INC. BFI WASTE SERVICES OF TEXAS, LP By: ALLIED WASTE LANDFILL HOLDINGS, INC., its General Partner BFI WASTE SERVICES OF INDIANA, LP By: ALLIED WASTE LANDFILL HOLDINGS, INC., its General Partner BRENHAM TOTAL ROLL-OFFS, LP By: ALLIED WASTE LANDFILL HOLDINGS, INC., its General Partner [additional signatures to follow] [Signature Page to Sixth Amendment to Receivables Sale Agreement for Allied] ALBANY-LEBANON SANITATION, INC. AMERICAN DISPOSAL SERVICES OF ILLINOIS, INC. AMERICAN DISPOSAL SERVICES OF MISSOURI, INC. AMERICAN DISPOSAL SERVICES OF WEST VIRGINIA, INC. BFI WASTE SYSTEMS OF NEW JERSEY, INC. CAPITOL RECYCLING AND DISPOSAL, INC. CITY-STAR SERVICES, INC. CLARKSTON DISPOSAL, INC. CORVALLIS DISPOSAL CO. COUNTY DISPOSAL (OHIO), INC. COUNTY LANDFILL, INC. D & L DISPOSAL L.L.C. DALLAS DISPOSAL CO. DELTA CONTAINER CORPORATION [additional signatures to follow] [Signature Page to Sixth Amendment to Receivables Sale Agreement for Allied] DEMPSEY WASTE SYSTEMS II, INC. DINVERNO, INC. GRANTS PASS SANITATION, INC. HARLAND'S SANITARY LANDFILL, INC. ILLIANA DISPOSAL PARTNERSHIP ISLAND WASTE SERVICES LTD. KELLER DROP BOX, INC. KEY WASTE INDIANA PARTNERSHIP LATHROP SUNRISE SANITATION CORPORATION MCINNIS WASTE SYSTEMS, INC. PACKERTON LAND COMPANY, L.L.C. RABANCO, LTD. REGIONAL DISPOSAL COMPANY By: RABANCO, LTD., its General Partner ROSSMAN SANITARY SERVICE, INC. [additional signatures to follow] [Signature Page to Sixth Amendment to Receivables Sale Agreement for Allied] SUBURBAN CARTING CORP. SUNRISE SANITATION SERVICE, INC. SUNSET DISPOSAL SERVICE, INC. SUNSET DISPOSAL, INC. THOMAS DISPOSAL SERVICE, INC. UNITED DISPOSAL SERVICE, INC. By: __________________________________ Name: Gregory J. Reddy Title: Assistant Secretary Address: as listed on Exhibit II hereto [additional signatures to follow] [Signature Page to Sixth Amendment to Receivables Sale Agreement for Allied] Acknowledged and consented to: WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent By ____________________________ Name: Title: [end of signatures] [Signature Page to Sixth Amendment to Receivables Sale Agreement for Allied] Exhibit II [insert list of Originators, Jurisdictions of Organization, Principal Places of Business; Chief Executive Offices; Location(s) of Records; Federal Employer Identification Numbers; Other Names] Exhibit III Names of Collection Banks; Lock-Boxes & Collection Accounts
Schedule B Excluded Commercial Management System Districts Commercial Management System Districts 293, 338, 365, 383, 342, 418, 436, 551, 711, 777, 1180, 1251, 1454, 1456, 1457, 1486, 1625, 1626, 1639, 1726, 1767, 1768, 1770, 1771, 1773, 1777, 1779, 1788 and 1793 Schedule C Excluded InfoPro System Divisions InfoPro System Divisions 279, 284, 285, 476, 354, 175, 176 and 261 Schedule D
