Waste Management 10Q 2013 Q3 Quarterly report | WM Filing

EXHIBIT 10.3

FIRST AMENDMENT AGREEMENT dated as of 16 August 2013.

BETWEEN:

WASTE MANAGEMENT OF CANADA CORPORATION

WM QUÉBEC INC.

as Borrowers

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WASTE MANAGEMENT, INC.

WASTE MANAGEMENT HOLDINGS, INC.

as Guarantors

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THE LENDERS FROM TIME TO TIME PARTY

TO THIS AGREEMENT

as Lenders

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THE BANK OF NOVA SCOTIA

as Administrative Agent

RECITALS:

A.	The parties hereto have entered into a credit agreement dated as of 7 November 2012 (the “Existing Credit Agreement”).

B.	The parties have agreed to enter into this First Amendment Agreement to amend the provisions of the Existing Credit Agreement on the terms and conditions set out in this First Amendment Agreement.

C.	Capitalized terms used in this First Amendment Agreement and not otherwise defined have the meanings defined in the Existing Credit Agreement.

FOR VALUE RECEIVED, and intending to be legally bound by this First Amendment Agreement, the Parties agree as follows:

1.	Definitions

(a) The following definition is added as new subsection 1.1(27)A immediately following existing subsection 1.1(27):

““Code” means The Internal Revenue Code of 1986, as amended and in effect from time to time.”

(b) The definition of “GAAP” in subsection 1.1(59) of the Existing Credit Agreement which reads:

““GAAP” means, when used in this Agreement, whether directly or indirectly through reference to a capitalized term used therein, means (a) principles that are consistent with the principles promulgated or adopted by the Financial Accounting Standards Board (U.S.) and its predecessors, in effect for the fiscal year ended on the December 31, 2010, and (b) to the extent consistent with such principles, the accounting practice of WMI reflected in its financial statements for the year ended on December 31, 2010; provided, that, with respect to any financial statements prepared after the December 31, 2010, such meaning in each of clause (a) and (b) shall include the revised guidance associated with multiple-deliverable revenue arrangements effective per FASB ASC 605 on January 1, 2011; provided, further, that in each case referred to in this definition of “GAAP” a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) as to financial statements in which such principles have been properly applied. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, “Debt” of WMI and its subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.”

is deleted in its entirety and replaced with the following:

““GAAP” means, when used in this Agreement, whether directly or indirectly through reference to a capitalized term used therein, means principles that are consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors as in effect from time to time, except as otherwise specifically prescribed herein. If any “Accounting Change” (as defined below) occurs subsequent to July 26, 2013 (the effective date of the U.S. Credit Agreement), such change results in a material change in the method of calculation of financial covenants, standards or terms in this Agreement or any other Loan Document and any of WMI, the Agent or the Required Lenders shall so request, then (A) WMI, the Lenders and the Agent agree to enter into negotiations in good faith in order to amend such provisions of this Agreement or such other Loan Document so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the WMI’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made (subject to the approval of the Required Lenders), and (B) until such time as such an amendment shall have been executed and delivered by WMI, the Agent and the Required Lenders, (i) the financial covenants, standards and terms in this Agreement and the other Loan Documents impacted by such material change shall continue to be calculated or construed as if such Accounting Changes had not occurred and (ii) WMI shall provide to the Agent and the Lenders a reconciliation between the calculation of such impacted covenants, standards and terms before and after giving effect to such Accounting Changes. “Accounting Changes” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial

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Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the Securities and Exchange Commission. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, “Debt” of WMI and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.”

““Other Guaranteed Obligations” means the present and future debts, liabilities and obligations of the Borrowers or either of them to any Lender or its affiliates that arise under or in connection with, (i) derivatives or other hedging arrangements, and (ii) cash management arrangements, entered into with such Lender or its affiliates that are permitted under this Agreement, which Other Guaranteed Obligations shall rank pari passu with the Credits.”

is deleted in its entirety and replaced with the following:

““Other Guaranteed Obligations” means the present and future debts, liabilities and obligations of the Borrowers or either of them to any Lender or its affiliates that arise under or in connection with, (i) derivatives or other hedging arrangements, and (ii) cash management arrangements, entered into with such Lender or its affiliates, which Other Guaranteed Obligations shall rank pari passu with the Credits.”

(d) Clause (f) of the definition of “Permitted Encubrances” in subsection 1.1(90) of the Existing Credit Agreement which reads:

“(f)

the Encumbrances on Schedule 1.1 of the U.S. Credit Agreement (a copy of which is attached hereto as Annex 1.1) securing the obligations listed on such Schedule and any replacement Encumbrance securing any renewal, extension or refunding of such obligations if the amount secured by such renewal, extension or refunding Encumbrance shall not exceed the amount of the outstanding obligations secured by the Encumbrance being replaced at the time of such renewal, extension or refunding (plus transactions costs, including premiums and fees, related to such renewal, extension or refunding) and if such replacement Encumbrance shall be limited to substantially the same property that secured the Encumbrance so replaced;”

is deleted in its entirety and replaced with the following:

“(f)

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permitted by this clause (f) shall not exceed the aggregate outstanding principal amount of the obligations secured by the Encumbrance being replaced at the time of such renewal, extension or refunding (plus transactions costs, including premiums and fees, related thereto), and (ii) each replacement Encumbrance shall be limited to substantially the same property that secured the Encumbrance so replaced;”

(e) Clause (m) of the definition of “Permitted Encubrances” in subsection 1.1(90) of the Existing Credit Agreement which reads:

“(m)

Encumbrances securing other Debt, provided that the aggregate amount of all liabilities, including any Debt, of WMI and its Subsidiaries secured by all Encumbrances permitted in subsections (k), (l) and (m), when added (without duplication) to the aggregate amount of Debt of WMI’s Subsidiaries permitted under Section 6.4(1)(b) and Debt with respect to Permitted Receivables Transactions, shall not exceed 15% of Consolidated Tangible Assets at any time.”

is deleted in its entirety and replaced with the following:

“(m)

Encumbrances securing other Debt, provided that the aggregate amount of all liabilities, including any Debt, of WMI and its Subsidiaries secured by all Encumbrances permitted in subsections (k), (l) and (m), when added (without duplication) to the aggregate outstanding amount of Debt of WMI’s Subsidiaries permitted under Section 6.4(1)(b) and Debt with respect to Permitted Receivables Transactions, shall not exceed 15% of Consolidated Tangible Assets at any time.”

(f) The definition of “U.S. Credit Agreement” in subsection 1.1(116) of the Existing Credit Agreement which reads:

““U.S. Credit Agreement” means the U.S. $2,000,000,000 amended and restated revolving credit agreement dated as of May 9, 2011 by and among WMI, as borrower, Waste Management Holdings, Inc., as guarantor, various banks party thereto from time to time, as lenders, Bank of America, N.A., as administrative agent and others.”

is deleted in its entirety and replaced with the following:

““U.S. Credit Agreement” means the U.S. $2,250,000,000 second amended and restated revolving credit agreement dated as of July 26, 2013 by and among WMI, as borrower, Waste Management Holdings, Inc., as guarantor, various banks party thereto from time to time, as lenders, Bank of America, N.A., as administrative agent and others.”

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2.Representations and Warranties

The first two sentences of subsection 5.1(14)(b) of the Existing Credit Agreement which read:

“Each contribution required to be made to a Guaranteed Pension Plan, whether required to be made to avoid the incurrence of an accumulated funding deficiency, the notice or lien provisions of §303(k) of ERISA, or otherwise, has been timely made. No waiver of an accumulated funding deficiency or extension of amortization periods has been received with respect to any Guaranteed Pension Plan.”

are deleted in their entirety and replaced with the following:

“Each contribution required to be made to a Guaranteed Pension Plan, whether required to be made to avoid a violation of the minimum funding standards under §§412 and 430 of the Code, the notice or lien provisions of §303(k) of ERISA, or otherwise, has been timely made. No waiver of the minimum funding standards under §§412 and 430 of the Code or extension of amortization periods has been received with respect to any Guaranteed Pension Plan.”

3.Financial Covenants

Subsection 6.1(b) of the Existing Credit Agreement which reads:

“(b)

Total Debt to EBITDA. As of the end of any fiscal quarter of WMI, WMI will not permit the ratio of (a) Total Debt to (b) EBITDA for the four fiscal quarters then ending to exceed 3.50:1.00.”

is deleted in its entirety and replaced with the following:

“(b)

Total Debt to EBITDA. As of the end of any fiscal quarter of WMI, WMI will not permit the ratio of (a) Total Debt to (b) EBITDA for the four fiscal quarters then ending to exceed (i) for each fiscal quarter of WMI ending before September 30, 2015, 3.75:1.00, and (ii) for each fiscal quarter of WMI ending on or after September 30, 2015, 3.50:1.00.”

4.Negative Covenants

Subsections 6.4(1) (a) and (b) of the Existing Credit Agreement which read:

“(a)

Debt of WMI’s Subsidiaries listed in Schedule 8.1(a) of the U.S. Credit Agreement (a copy of which is attached hereto as Annex 8.1(a)) and any extension, renewal or refinancing of such Debt, provided that the terms and conditions of any such extensions, renewals or refinancings do not increase the relative priority of the original Debt and provided, further, that such extended, renewed or refinanced Debt does not in the aggregate exceed the U.S. Dollar amount of the original Debt; and

(b)

other Debt of WMI’s Subsidiaries (other than Waste Management Holdings, Inc.) provided that the aggregate amount of all such Debt under this Section 6.4(1)(b), when added (without duplication) to the aggregate outstanding amount of secured Debt of WMI and its Subsidiaries under (k), (l) and (m) of the definition of “Permitted Encumbrances” and Debt with respect to Permitted Receivables Transactions, shall not exceed 15% of Consolidated Tangible Assets.”

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are deleted in their entirety and replaced with the following:

“(a)

Debt of WMI’s Subsidiaries listed in Schedule 8.1(a) of the U.S. Credit Agreement (a copy of which is attached hereto as Annex 8.1(a)), any extension, renewal or refinancing of such Debt, and any additional bonds issued and Capital Leases entered into from time to time after July 26, 2013 (the effective date of the U.S. Credit Agreement); provided that (i) if such Debt is an extension, renewal or refinancing of existing Debt, the terms and conditions of any such extensions, renewals or refinancings shall not increase the relative priority of such Debt over the priority of the original Debt, and (ii) in no event shall the aggregate principal amount of Debt permitted by this Subsection 6.4(1)(a) exceed the aggregate principal amount of the original Debt listed on Schedule 8.1(a) of the U.S. Credit Agreement (plus transaction costs, including premiums and fees, related thereto); and

(b)

other Debt of WMI’s Subsidiaries (other than Waste Management Holdings, Inc.) provided that the sum (without duplication) of (i) the aggregate outstanding principal amount of Debt permitted under this Subsection 6.4(1)(b), plus (ii) the aggregate outstanding principal amount of secured Debt of WMI and its Subsidiaries permitted under (k), (l) and (m) of the definition of “Permitted Encumbrances”, plus (iii) the aggregate amount of Debt with respect to outstanding Permitted Receivables Transactions (determined in accordance with the proviso to the definition of “Debt”), shall not exceed 15% of Consolidated Tangible Assets at any time.”

5.Direct Payments

Section 7.11 of the Existing Credit Agreement is amended by replacing each reference therein to “Other Secured Obligations” with reference to “Other Guaranteed Obligations” and each reference therein to “Derivatives” with reference to “derivative transactions”.

6.Payments by the Borrowers

The first paragraph of Subsection 9.17(1) of the Existing Credit Agreement which reads:

“(1)

Except as otherwise specified in this Agreement, all payments made by or on behalf of the Borrowers shall be made to and received by the Agent and shall be distributed by the Agent to the Lenders as soon as possible upon receipt by the Agent. Except as otherwise provided in this Agreement (including Section 9.18), the Agent shall distribute:”

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is deleted in its entirety and replaced with the following:

“(1)

Except as otherwise specified in this Agreement, all payments made by or on behalf of the Borrowers shall be made to and received by the Agent and shall be distributed by the Agent to the Lenders as soon as possible upon receipt by the Agent. Except as required to make payments in respect of Other Guaranteed Obligations to the Persons to whom such Other Guaranteed Obligations are owed, or as otherwise provided in this Agreement (including Section 9.18), the Agent shall distribute:”

7.Increased Costs, Etc.

Subsection 9.19(2) of the Existing Credit Agreement which reads:

“(2)

If any Lender determines in its sole and absolute discretion that any Change in Law affecting the Lender or any lending office of the Lender or its holding company (or other Controlling Person), if any, regarding capital requirements has or would have the effect of reducing the rate of return on the Lender’s capital or on the capital of its holding company (or other Controlling Person), if any, as a consequence of this Agreement, the Commitments of the Lender or any Advance made by the Lender, to a level below that which the Lender or its holding company (or other Controlling Person) could have achieved but for that Change in Law (taking into consideration the Lender’s policies and the policies of its holding company (or other Controlling Person) with respect to capital adequacy, each from time to time), then from time to time the Borrowers will pay to that Lender an additional amount or amounts that will compensate Lender or its holding company (or other Controlling Person) for the reduction suffered.”

is deleted in its entirety and replaced with the following:

“(2)

If any Lender determines in its sole and absolute discretion that any Change in Law affecting the Lender or any lending office of the Lender or its holding company (or other Controlling Person), if any, regarding capital adequecy or liquidity requirements has or would have the effect of reducing the rate of return on the Lender’s capital or on the capital of its holding company (or other Controlling Person), if any, as a consequence of this Agreement, the Commitments of the Lender or any Advance made by the Lender, to a level below that which the Lender or its holding company (or other Controlling Person) could have achieved but for that Change in Law (taking into consideration the Lender’s policies and the policies of its holding company (or other Controlling Person) with respect to capital adequacy and liquidity requirements, each from time to time), then from time to time the Borrowers will pay to that Lender an additional amount or amounts that will compensate Lender or its holding company (or other Controlling Person) for the reduction suffered.”

8. Representations of the Obligors

Each Obligor acknowledges that this First Amendment Agreement is a Loan Document and that all of the representations and warranties concerning Loan Documents that are contained in the Existing Credit Agreement apply to this First Amendment Agreement and are deemed to be repeated on the execution of this First Amendment Agreement as if set out in full in this First Amendment Agreement other than those which relate to a specific date.

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9.Ratification and Confirmation; Restatement

On and after this date, each reference in the “Existing Credit Agreement” to “this Agreement” and each reference to the Existing Credit Agreement in the Loan Documents and any and all other agreements, documents and instruments delivered by the Agent, the Lenders, any Obligor or any other Person shall mean and be a reference to the Existing Credit Agreement as amended by this First Amendment Agreement.

The Existing Credit Agreement, as amended by this First Amendment Agreement, remains in full force and effect and is hereby ratified and confirmed. Without in any way limiting the terms of the Existing Credit Agreement or the other Loan Documents, each Obligor confirms that the existing Security shall continue to secure all the Obligations, including but not limited to any arising as a result of this First Amendment Agreement.

10. Counterparts and Facsimile

This First Amendment Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, and such counterparts together shall constitute one and the same agreement. The delivery of a facsimile copy of an executed counterpart of this First Amendment Agreement shall be deemed to be valid execution and delivery of this First Amendment Agreement, but the party delivering a facsimile copy shall deliver an original copy of this First Amendment Agreement as soon as possible after delivering the facsimile copy.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS OF WHICH, the Parties have duly executed this First Amendment Agreement.


WASTE MANAGEMENT OF CANADA CORPORATION

By:		/s/ Devina A. Rankin

		Devina A. Rankin
		Vice President & Treasurer

By:		/s/ Don P. Carpenter

		Don P. Carpenter
		Vice President, Chief Financial Officer & Controller