Amended Revolving Credit Agreement
EXHIBIT 10.1
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”) is made and entered into as of the 27th day of January, 2003, by and among Waste Management, Inc., a Delaware corporation (the “Borrower”), Waste Management Holdings, Inc., a wholly-owned subsidiary of the Borrower (the “Guarantor”), Fleet National Bank (“Fleet”), Bank of America, N.A., JPMorgan Chase Bank, Deutsche Bank AG New York Branch, Citibank, N.A. and the other financial institutions listed on Schedule 1 to the Credit Agreement referred to below (collectively, the “Banks”) and Fleet, as administrative agent for the Banks (the “Administrative Agent”).
WHEREAS, the Borrower, the Guarantor, the Banks and the Administrative Agent are party to a Revolving Credit Agreement, dated as of June 29, 2001 (as amended and in effect from time to time, the “Credit Agreement”), pursuant to which the Banks have extended credit to the Borrower on the terms set forth therein; and
WHEREAS, the Borrower has requested that the Banks and the Administrative Agent amend certain provisions of the Credit Agreement as specifically set forth in this Amendment;
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to amend the Credit Agreement as follows:
1. Definitions. Capitalized terms used herein without definition shall have the meanings assigned to such terms in the Credit Agreement.
2. Amendments to §9.2 of the Credit Agreement. Section 9.2 of the Credit Agreement is hereby amended by deleting the reference to the text “3:00:1.00” and inserting in lieu thereof the text “3.25:1.00”.
3. Representations and Warranties. The Borrower and the Guarantor jointly and severally represent and warrant as of the Effective Date as follows:
(a) The execution, delivery and performance of this Amendment and the Credit Agreement and the other Loan Documents, as amended hereby, and the transactions contemplated hereby and thereby (i) are within the corporate authority of the Borrower and the Guarantor, (ii) have been duly authorized by all necessary corporate proceedings on the part of the Borrower or Guarantor, (iii) do not conflict with or result in any material breach or contravention of any provision of law, statute, rule or regulation to which the Borrower or the Guarantor is subject or any judgment, order, writ, injunction, license or permit applicable to the Borrower or the Guarantor so as to materially adversely affect the assets, business or any activity of the Borrower and its Subsidiaries taken as a whole, and (iv) do not conflict with any provision of the corporate charter or bylaws of the Borrower or the Guarantor or any agreement or other instrument binding upon the Borrower or the Guarantor.
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(b) The representations and warranties contained in Section 6 of the Credit Agreement are true and correct in all material respects as of the date hereof as though made on and as of the date hereof.
(c) No Default or Event of Default under the Credit Agreement has occurred and is continuing.
4. Effectiveness. This Amendment shall become effective upon the satisfaction of each of the following conditions (the “Effective Date”):
(a) This Amendment shall have been executed and delivered by the Borrower, the Guarantor, the Majority Banks and the Administrative Agent.
(b) The Administrative Agent shall have received, for the account of each Bank which executes and delivers its signature pages to the Administrative Agent, by 5:00 p.m. Boston time on January 27, 2003 in facsimile (to be followed by originals) or original form, an amendment fee equal to 0.02% of each such Bank’s Commitment.
5. Ratification, Etc. Except as expressly amended hereby, the Credit Agreement, the other Loan Documents and all documents, instruments and agreements related thereto are hereby ratified and confirmed in all respects and shall continue in full force and effect. The Guarantor hereby confirms that its guaranty of the Guaranteed Obligations contained in §28 of the Credit Agreement remains in full force and effect. This Amendment and the Credit Agreement shall hereafter be read and construed together as a single document, and all references in the Credit Agreement, any other Loan Document or any agreement or instrument related to the Credit Agreement shall hereafter refer to the Credit Agreement as amended by this Amendment.
6. GOVERNING LAW. THIS AMENDMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW §5-1401, BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS).
7. Counterparts; Delivery by Facsimile. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which counterparts taken together shall be deemed to constitute one and the same instrument. This Amendment, to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto or thereto shall re-execute original forms hereof and deliver them to all other parties. No party hereto shall raise the use of a facsimile machine to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine as a defense to the formation of a contract and each party forever waives such defense.
[Signatures on next page]
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First Amendment
IN WITNESS WHEREOF, each of the undersigned have duly executed this Amendment under seal as of the date first set forth above.
THE BORROWER WASTE MANAGEMENT, INC By: /s/ Ronald H. Jones Name: Ronald H. Jones Title: Vice President & Treasurer THE GUARANTOR WASTE MANAGEMENT HOLDINGS, INC By: /s/ Ronald H. Jones Name: Ronald H. Jones Title: Vice President & Treasurer By: /s/ Lee A. McCormick Name: Lee A. McCormick Title: Assistant Treasurer THE BANK AND ADMINISTRATIVE AGENT FLEET NATIONAL BANK, individually and as Administrative Agent By: /s/ Timothy M. Laurion Name: Timothy M. Laurion Title: Managing Director THE BANKS JPMORGAN CHASE BANK By: /s/ Robert P. Kellas Name: Robert P. Kellas Title: Vice President
Signature page to First Amendment to the 5 Year Credit Agreement
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BANK OF AMERICA, N.A By: /s/ Brian D. Corum Name: Brian D. Corum Title: Managing Director DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH /s/ Ping Chen By: /s/ Jean M. Hannigan Ping Chen Name: Jean M. Hannigan Associate Title: Director CITIBANK, N.A By: /s/ David L. Harris Name: David L. Harris Title: Vice President ABN AMRO BANK N.V By: /s/ Terrence J. Ward Name: Terrence J. Ward Title: Senior Vice President By: /s/ Peter J. Hallan Name: Peter J. Hallan Title: Vice President THE BANK OF NOVA SCOTIA By: /s/ William E. Zarrett Name: William E. Zarrett Title: Managing Director
Signature page to First Amendment to the 5 Year Credit Agreement
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BARCLAYS BANK PLC By: /s/ John Giannone Name: John Giannone Title: Director BNP PARIBAS By: /s/ Craig Pierce Name: Craig Pierce Title: Associate By: /s/ Aurora L. Abella Name: Aurora L. Abella Title: Vice President CREDIT LYONNAIS NEW YORK BRANCH By: /s/ F. Frank Herrera Name: F. Frank Herrera Title: Vice President PNC BANK, NATIONAL ASSOCIATION By: /s/ Deborah K. Breslof Name: Deborah K. Breslof Title: Vice President ROYAL BANK OF CANADA By: /s/ Suzanne Kaicher Name: Suzanne Kaicher Title: Manager BANK ONE, N.A By: /s/ Mike Kelly Name: Mike Kelly Title: Associate
Signature page to First Amendment to the 5 Year Credit Agreement
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WACHOVIA BANK, N.A By: /s/ Anne L. Sayles Name: Anne L. Sayles Title: Director TORONTO DOMINION (TEXAS), INC By: Name: Title: WESTLB AG, NEW YORK BRANCH By: /s/ Duncan M. Robertson Name: Duncan M. Robertson Title: Director By: /s/ Salvatore Battinelli Name: Salvatore Battinelli Title: Managing Director, Credit Department THE FUJI BANK, LIMITED By: Name: Title: MIZUHO CORPORATE BANK LIMITED By: Name: Title:
Signature page to First Amendment to the 5 Year Credit Agreement
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THE DAI-ICHI KANGYO BANK, LTD., NY BRANCH By: Name: Title: COMERICA BANK By: /s/ Carol S. Geraghty Name: Carol S. Geraghty Title: Vice President THE BANK OF NEW YORK By: /s/ David T. Sunderwirth Name: David T. Sunderwirth Title: Vice President CREDIT SUISSE FIRST BOSTON By: /s/ Joseph J. Adipietro Name: Joseph J. Adipietro Title: Director By: /s/ Doreen B. Welch Name: Doreen B. Welch Title: Associate LEHMAN COMMERCIAL PAPER INC By: /s/ Suzanne Flynn Name: Suzanne Flynn Title: Authorized Signatory MELLON BANK, N.A By: /s/ Louis E. Flori Name: Louis E. Flori Title: Vice President
Signature page to First Amendment to the 5 Year Credit Agreement
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MERRILL LYNCH BANK USA By: /s/ Louis Alder Name: Louis Alder Title: Vice President SUNTRUST BANK By: /s/ Shona Adams Holden Name: Shona Adams Holden Title: Vice President PB CAPITAL CORPORATION By: Name: Title: THE MITSUBISHI TRUST AND BANKING CORPORATION By: Name: Title:
Signature page to First Amendment to the 5 Year Credit Agreement
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HIBERNIA NATIONAL BANK By: Name: Title: TAIPEIBANK, NEW YORK AGENCY By: /s/ Sophia Jing Name: Sophia Jing Title: G.M. & V. P.
Signature page to First Amendment to the 5 Year Credit Agreement
