EXHIBIT 10.13
EXECUTION COPY
SHARED COLLATERAL PLEDGE AGREEMENT dated as
of July 30, 1999 and amended and restated as of April
29, 2003 (as amended, supplemented or otherwise
modified from time to time, this "Agreement") among
ALLIED WASTE NORTH AMERICA, INC., a Delaware
corporation ("AWNA"), each Subsidiary listed on
Schedule I hereto (each such Subsidiary individually,
a "Subsidiary Pledgor", and collectively, the
"Subsidiary Pledgors"), and JPMORGAN CHASE BANK, a
New York banking corporation ("JPMCB"), as collateral
trustee (in such capacity, the "Collateral Trustee")
for the Secured Parties (as defined below).
Reference is made to (a) the Credit Agreement dated as of July 21, 1999
and amended and restated as of April 29, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among AWNA,
Allied Waste Industries, Inc. ("Allied Waste"), the lenders from time to time
party thereto (the "Lenders") and JPMCB, as administrative agent and collateral
agent for the Lenders (in such capacities, the "Agent"), (b) the Subsidiary
Guarantee Agreement dated as of July 30, 1999 and amended and restated as of
April 29, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Subsidiary Guarantee Agreement"), among the Subsidiary Pledgors,
certain other Subsidiaries and the Agent, (c) the Restated Indenture dated as of
September 1, 1991 (as amended, supplemented or otherwise modified from time to
time, the "BFI Indenture") between Xxxxxxxx-Xxxxxx Industries, Inc. ("BFI") and
JPMCB, as successor trustee to First City Texas-Houston, N.A. (together with any
successor, in such capacity, the "BFI Trustee"), and (d) the Indenture dated as
of December 23, 1998 (as amended, supplemented or otherwise modified from time
to time, the "AWNA Indenture") among AWNA, Allied Waste and U.S. Bank Trust
National Association, as trustee (together with any successor in such capacity,
the "AWNA Trustee"). Reference is also made to the Shared Collateral Pledge
Agreement dated as of July 30, 1999 (as amended, supplemented or otherwise
modified from time to time prior to the Restatement Effective Date, the
"Original Shared Collateral Pledge Agreement") among the Subsidiaries listed on
Schedule I thereto and the Subsidiaries that became parties thereto as provided
in Section 24 thereof (collectively, the "Original Pledgors") and the Collateral
Trustee, pursuant to which the Original Pledgors agreed to pledge as security
for the Credit Agreement Obligations (as defined in the Original Shared
Collateral Pledge Agreement) the assets of the Original Pledgors described
therein. The Original Pledgors and the Collateral Trustee now wish to amend and
restate the Original Pledge Agreement as set forth herein to pledge as security
for the obligations of the Borrower under the Credit Agreement the assets of the
Pledgors described herein. The Original Shared Collateral Pledge Agreement shall
be amended and restated in its entirety in the form hereof as of the Restatement
Effective Date; provided, however, that it is understood and agreed that no term
of the amendment and restatement contemplated hereby shall be effective until
the Restatement Effective Date, and that the Original Shared Collateral Pledge
Agreement shall continue in full force and effect until the Restatement
Effective Date.
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The Lenders have agreed to make Loans to AWNA, and the Issuing Banks
have agreed to issue Letters of Credit for the account of AWNA, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit Agreement.
Each of the Subsidiary Pledgors has agreed to guarantee, among other things, all
the obligations of AWNA to the Lenders under the Credit Agreement pursuant to
the Subsidiary Guarantee Agreement to secure the Credit Agreement Obligations
(as hereinafter defined).
Pursuant to the provisions of the BFI Indenture, BFI may not, and may
not permit any subsidiary of BFI (if such subsidiary constitutes a Restricted
Subsidiary (as defined in the BFI Indenture)), to pledge any of its, or any such
subsidiary's, assets as security for the Credit Agreement Obligations without
providing that the BFI Indenture Debt (as hereinafter defined) be secured
equally and ratably with such obligations.
Pursuant to the provisions of the AWNA Indenture, AWNA may not, and may
not permit any subsidiary of AWNA, including the Subsidiary Pledgors (if such
subsidiary constitutes a Restricted Subsidiary, as defined in the AWNA
Indenture)) to, pledge any of its, or any such subsidiary's, assets as security
for the BFI Indenture Debt without providing that the AWNA Indenture Debt (as
hereinafter defined) be secured equally and ratably with the BFI Indenture Debt.
It is a condition precedent to the Lenders' obligations to make Loans
and other extensions of credit under the Credit Agreement that the Subsidiary
Pledgors shall have executed and delivered this Agreement and the Collateral
Trust Agreement dated as of July 30, 1999 and amended and restated as of April
29, 2003 (as amended or otherwise modified from time to time, the "Collateral
Trust Agreement") among the Subsidiary Pledgors and the Collateral Trustee.
Accordingly, the Subsidiary Pledgors and the Collateral Trustee, on
behalf of itself and each Secured Party (and each of their successors and
assigns), hereby agree as follows:
SECTION 1. Defined Terms. Unless the context otherwise requires, all
capitalized terms used herein but not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement, and the following terms
shall have the following meanings:
"AWNA Indenture Debt" shall mean (i) the senior notes issued by AWNA
prior to July 30, 1999 under the AWNA Indenture and (ii) the 2001 Senior Notes.
"AWNA Senior Note Obligations" shall mean the obligations (without
duplication) of AWNA and the Subsidiary Pledgors to pay the principal of,
premium, if any, and interest on, the AWNA Indenture Debt.
"BFI Indenture Debt" shall mean the senior notes issued by BFI prior to
July 30, 1999 under the BFI Indenture. The BFI Indenture Debt has been
guaranteed by AWNA and Allied Waste.
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"BFI Senior Note Obligations" shall mean the obligations (without
duplication) of BFI, AWNA and Allied Waste to pay the principal of, premium, if
any, on, and interest on, the BFI Indenture Debt.
"Collateral Account" shall have the meaning specified in Section 3.01
of the Collateral Trust Agreement.
"Credit Agreement Obligations" shall mean (a) the due and punctual
payment by AWNA of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by AWNA under the Credit
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
AWNA to the Lenders under the Credit Agreement and the other Loan Documents, (b)
the due and punctual performance of all covenants, agreements, obligations and
liabilities of AWNA to the Lenders or relating to the Loans under or pursuant to
the Credit Agreement and the other Loan Documents, (c) the due and punctual
payment and performance of all the covenants, agreements, obligations and
liabilities of each Loan Party to the Lenders under or pursuant to this
Agreement and the other Loan Documents and (d) unless otherwise agreed upon in
writing by the applicable party thereto, all obligations, monetary or otherwise,
of any Loan Party under each Hedging Agreement entered into with any
counterparty that was (i) a Lender or an Affiliate of a Lender at the time such
Hedging Agreement was entered into or (ii) a lender or an Affiliate of a lender
under the Original Credit Agreement at the time such Hedging Agreement was
entered into; provided, however, that the obligations under this clause (d)(ii)
shall include only those obligations under any Hedging Agreement that was in
effect prior to the Restatement Effective Date, and only in the form as in
effect on the Restatement Effective Date, and shall not include any obligations
under such Hedging Agreement to the extent such Hedging Agreement is extended,
amended or renewed on or after the Restatement Effective Date.
"Debt Instruments" shall mean (i) the Credit Agreement and the
Subsidiary Guarantee Agreement, (ii) the BFI Indenture, (iii) the AWNA
Indenture, (iv) the 2001 Indenture and (v) each Hedging Agreement under which a
Credit Agreement Obligation exists.
"Event of Default" shall mean an "Event of Default" under the Credit
Agreement, the AWNA Indenture, the 2001 Indenture or the BFI Indenture (as such
term is defined in each such agreement or indenture).
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"Obligations" shall mean, without duplication, (i) the Credit Agreement
Obligations, (ii) the AWNA Senior Note Obligations and (iii) the BFI Senior Note
Obligations; provided, however, that the Obligations shall not in any event
include any obligations in respect of debt securities issued under the AWNA
Indenture, the 2001 Indenture or the BFI Indenture after July 30, 1999, other
than the 2001 Senior Notes.
"Requisite Secured Parties" shall mean, at any time, the Secured Party
or Secured Parties holding at least 51% in aggregate amount of the Obligations
then outstanding; provided that any balance in a Secured Party's Collateral
Account shall be deducted from the amount of Obligations held by such Secured
Party for purposes of determining the outstanding Obligations under this
definition.
"Secured Parties" shall mean (a) the Lenders (including the Tranche A
Lenders), (b) the Agent, (c) the Collateral Trustee, (d) the Issuing Banks, (e)
each counterparty to a Hedging Agreement entered into with a Loan Party if such
counterparty was (i) a Lender or an Affiliate of a Lender at the time the
Hedging Agreement was entered into or (ii) a lender under the Original Credit
Agreement but not a Lender under the Credit Agreement; provided that any
counterparty described in this clause (e)(ii) shall (A) be a Secured Party to
the extent, and only to the extent, that such Hedging Agreement was entered into
prior to, and in effect on, the Restatement Effective Date, and (B) remain a
Secured Party only until such Hedging Agreement expires, is extended, renewed or
amended or is otherwise terminated, (f) the beneficiaries of each
indemnification obligation undertaken by AWNA or any Subsidiary Pledgor under
any Loan Document in respect of the foregoing Persons or their Related Parties,
in their capacities as such, (g) the AWNA Trustee, for the benefit of the
holders from time to time of the AWNA Indenture Debt (other than the 2001 Senior
Notes), (h) the 2001 Indenture Trustee, for the benefit of the holders from time
to time of the 2001 Senior Notes, (i) the BFI Trustee, for the benefit of the
holders from time to time of the BFI Indenture Debt and (j) the successors and
permitted assigns of each of the foregoing.
"Trustee" shall mean the AWNA Trustee, the BFI Trustee or the 2001
Indenture Trustee, as applicable.
"2001 Indenture" means (i) one or more supplemental indentures, dated
on or after January 25, 2001, to the AWNA Senior Note Indenture and (ii) any
other indenture governing Senior Indebtedness entered into by AWNA or Allied
Waste on or after January 25, 2001.
"2001 Indenture Trustee" shall mean the trustee under any 2001
Indenture.
"2001 Senior Notes" means senior secured notes of AWNA or Allied Waste
issued on or after January 25, 2001 pursuant to the 2001 Indenture.
SECTION 2. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Subsidiary Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates, pledges, sets over
and delivers unto the Collateral Trustee, its successors and assigns, and hereby
grants to the Collateral Trustee, its
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successors and assigns, for the ratable benefit of the Secured Parties, a
security interest in all of such Subsidiary Pledgor's right, title and interest
in, to and under (a) the shares of capital stock, membership interests and other
Equity Interests owned by it and listed on Schedule II hereto and any shares of
capital stock, membership interests and other Equity Interests of any Subsidiary
or any other Person now owned or obtained in the future by such Subsidiary
Pledgor and required by the Credit Agreement to be pledged hereunder and the
certificates representing all such shares, membership interests and other Equity
Interests (the "Pledged Stock"); provided that the Pledged Stock shall not
include (i) more than 65% of the issued and outstanding shares of capital stock,
membership interests or other Equity Interests of any Foreign Subsidiary or (ii)
to the extent that applicable law requires that a Subsidiary of such Subsidiary
Pledgor or AWNA issue directors' qualifying shares, such qualifying shares;
(b)(i) the debt obligations that are evidenced by promissory notes or
certificated securities, including any intercompany advances and indebtedness,
listed opposite the name of such Subsidiary Pledgor on Schedule II hereto, (ii)
any debt obligations that are evidenced by promissory notes or certificated
securities, including any intercompany advances and indebtedness, now held by or
in the future issued to or held by such Subsidiary Pledgor and required by the
Credit Agreement to be pledged hereunder and (iii) the promissory notes and any
other instruments evidencing such debt obligations (the items referred to in
subclauses (i) through (iii) of this clause (b) being referred to collectively
herein as the "Pledged Debt Obligations"); (c) all other property that is
delivered to and held by the Collateral Trustee pursuant to the terms hereof;
(d) subject to Section 6, all payments of principal or interest, dividends,
cash, instruments and other property from time to time received, receivable or
otherwise distributed, in respect of, in exchange for or upon the conversion of
the securities referred to in clauses (a) and (b) above; (e) subject to Section
6, all rights and privileges of such Subsidiary Pledgor with respect to the
securities and other property referred to in clauses (a), (b), (c) and (d)
above; and (f) all proceeds of any of the foregoing (the items referred to in
clauses (a) through (f) above being collectively referred to herein as the
"Collateral"). Upon delivery to the Collateral Trustee, (a) any debt, equity,
stock or membership certificates, promissory notes or other instruments or
certificated securities now or hereafter included in the Collateral (the
"Pledged Securities") shall be accompanied by stock powers duly executed in
blank or other customary instruments of transfer reasonably satisfactory to the
Collateral Trustee and by such other instruments and documents as the Collateral
Trustee may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Subsidiary Pledgor and such other instruments or
documents as the Collateral Trustee may reasonably request. Each delivery of
Pledged Securities shall be accompanied by a schedule describing the securities
theretofore and then being pledged hereunder, which schedule shall be attached
hereto as Schedule II and made a part hereof; provided that the failure to
attach any such schedule hereto shall not affect the validity of such pledge of
such Pledged Securities or other Collateral. Each schedule so delivered shall
supersede any prior schedules so delivered.
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral
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Trustee, its successors and assigns, for the ratable benefit of the Secured
Parties, forever; subject, however, to the terms, covenants and conditions
hereinafter set forth.
SECTION 3. Delivery of the Collateral. (a) Each Subsidiary Pledgor
agrees to deliver or cause to be delivered to the Collateral Trustee any and all
Pledged Securities, and any and all certificates or other instruments or
documents representing Collateral, (i) on the Restatement Effective Date, if
such Pledged Securities and other documents represent interests in a Material
Loan Party and (ii) as soon as practicable, and in no event later than the date
that is 30 days following the Restatement Effective Date, if such Pledged
Securities and other documents represent interests in, or Collateral of, a Loan
Party other than a Material Loan Party.
(b) Each Subsidiary Pledgor will cause any Indebtedness for borrowed
money owed to such Subsidiary Pledgor by any Person (other than Allied Waste,
AWNA or any other Subsidiary) that constitutes Pledged Debt Obligations to be
evidenced by a duly executed promissory note that is pledged and delivered to
the Collateral Trustee pursuant to the terms hereof.
(c) Each of Allied Waste, AWNA and each Subsidiary Pledgor agrees that
it will not, and will cause each other Subsidiary not party hereto not to,
evidence any Indebtedness for borrowed money owed to it by Allied Waste, AWNA or
any other Subsidiary to be evidenced by a promissory note or other document or
instrument unless such note, document or instrument is pledged and delivered to
the Collateral Trustee pursuant to the terms hereof
SECTION 4. Representations, Warranties and Covenants. Each Subsidiary
Pledgor hereby represents, warrants and covenants, as to itself and the
Collateral pledged by it hereunder, to and with the Collateral Trustee, for the
benefit of the Secured Parties, that:
(a) the Pledged Stock represents that percentage as set forth
on Schedule II hereto of the issued and outstanding shares of each
class of the capital stock, membership interests or other Equity
Interests of the issuer thereof and includes all capital stock,
membership interests and other Equity Interests required to be pledged
hereunder, and the Pledged Debt Obligations set forth on Schedule II
hereto includes all certificated debt securities and promissory notes
required to be pledged hereunder;
(b) except for the security interest granted hereunder (i)
such Subsidiary Pledgor, AWNA, Allied Waste or any other Subsidiary
Pledgor is and will at all times continue to be the direct owner
beneficially and of record, of the Pledged Securities indicated on
Schedule II hereto and (ii) such Subsidiary Pledgor, AWNA, Allied Waste
or such other Subsidiary Pledgor holds the same free and clear of all
Liens other than Permitted Encumbrances;
(c)(i) except for the security interest granted hereunder,
such Subsidiary Pledgor will make no assignment, pledge, hypothecation
or transfer of, or create
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or permit to exist any security interest in or other Lien on, the
Collateral, other than pursuant hereto or Permitted Encumbrances, and
(ii) such Subsidiary Pledgor will, subject to Section 6, cause any and
all certificates or other instruments or documents representing the
Collateral, whether for value paid by the Subsidiary Pledgor or
otherwise, to be forthwith deposited with the Collateral Trustee and
pledged hereunder;
(d) such Subsidiary Pledgor (i) has the power and authority to
pledge the Collateral pledged by it hereunder in the manner hereby done
or contemplated and (ii) will defend its title or interest thereto or
therein against any and all Liens (other than the Lien created by this
Agreement or a Permitted Encumbrance), however arising, of all Persons
whomsoever;
(e) no consent of any other Person (including stockholders,
partners, members or creditors of any Subsidiary Pledgor) and no
consent or approval of any Governmental Authority or any securities
exchange was or is necessary to create a valid security interest in the
Pledged Securities, except such consents or approvals as have been
obtained and are in full force and effect;
(f) by virtue of the execution and delivery by the Subsidiary
Pledgors of this Agreement, when the Pledged Securities, certificates
or other documents representing or evidencing the Collateral are
delivered to the Collateral Trustee in accordance with this Agreement,
the Collateral Trustee will obtain a valid and perfected first priority
Lien upon and security interest in (subject to any Permitted
Encumbrances) such Pledged Securities or such other Collateral, as the
case may be, as security for the payment and performance of the
Obligations;
(g) the pledge effected hereby is effective to vest in the
Collateral Trustee, for the benefit of the Secured Parties, the rights
of the Collateral Trustee in the Collateral as set forth herein;
(h) the Pledged Stock has been duly and validly authorized and
issued by the issuers thereof and is fully paid and nonassessable and
the Pledged Debt Obligations issued by any Subsidiary Pledgor party
hereto are legal, valid and binding obligations of the issuers thereof;
(i) all information set forth herein relating to the
Collateral is accurate and complete in all material respects as of the
Restatement Effective Date;
(j) the pledge of the Pledged Stock pursuant to this Agreement
does not violate Regulation U or X of the Federal Reserve Board or any
successor thereto as of the Restatement Effective Date; and
(k) the Collateral is not and shall not be represented by any
certificates, notes, securities, documents or other instruments other
than those delivered hereunder.
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SECTION 5. Registration in Nominee Name; Denominations. The Collateral
Trustee, on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Subsidiary Pledgor, endorsed or assigned in blank or in favor of the
Collateral Trustee. Each Subsidiary Pledgor will promptly give to the Collateral
Trustee copies of any notices or other communications received by it with
respect to Pledged Securities registered in the name of such Subsidiary Pledgor.
The Collateral Trustee shall at all times have the right to exchange the
certificates representing Pledged Securities for certificates of smaller or
larger denominations for any purpose consistent with this Agreement.
SECTION 6. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Subsidiary Pledgor shall be entitled to exercise any
and all voting and/or other consensual rights and powers inuring to an
owner of Pledged Securities or any part thereof for any purpose
consistent with the terms of this Agreement, the Credit Agreement and
the other Loan Documents.
(ii) The Collateral Trustee shall execute and deliver to each
Subsidiary Pledgor, or cause to be executed and delivered to each
Subsidiary Pledgor, all such proxies, powers of attorney and other
instruments as such Subsidiary Pledgor may reasonably request for the
purpose of enabling such Subsidiary Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant
to subparagraph (i) above and to receive the cash dividends it is
entitled to receive pursuant to subparagraph (iii) below.
(iii) Each Subsidiary Pledgor shall be entitled to receive and
retain any and all cash dividends, interest, principal and other
amounts paid on the Pledged Securities to the extent and only to the
extent that such cash dividends, interest, principal and other amounts
are permitted by, and otherwise paid in accordance with, the terms and
conditions of the Credit Agreement, the other Loan Documents, the BFI
Indenture, the AWNA Indenture, the 2001 Indenture and applicable laws
and subject to any requirements of the Credit Agreement, the BFI
Indenture, the AWNA Indenture or the 2001 Indenture with respect to the
application thereof to the payment of Loans or otherwise. All non-cash
dividends, interest and principal, and all dividends, interest and
principal paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, return of capital, capital
surplus or paid-in surplus, and all other distributions (other than
distributions referred to in the preceding sentence) made on or in
respect of the Pledged Securities, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer of
any Pledged Securities or received in exchange for Pledged Securities
or any part thereof, or in redemption thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, shall be and become part of
the Collateral, and, if received by any Subsidiary Pledgor, shall not
be commingled
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by such Subsidiary Pledgor with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for
the benefit of the Collateral Trustee and shall be forthwith delivered
to the Collateral Trustee in the same form as so received (with any
necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Subsidiary Pledgor to dividends, interest or
principal that such Subsidiary Pledgor is authorized to receive pursuant to
paragraph (a)(iii) above shall cease, and all such rights shall thereupon become
vested in the Collateral Trustee, which shall have the sole and exclusive right
and authority to receive and retain such dividends, interest or principal. All
dividends, interest or principal received by the Subsidiary Pledgor contrary to
the provisions of this Section 6 shall be held in trust for the benefit of the
Collateral Trustee, shall be segregated from other property or funds of such
Subsidiary Pledgor and shall be forthwith delivered to the Collateral Trustee
upon demand in the same form as so received (with any necessary endorsement).
Any and all money and other property paid over to or received by the Collateral
Trustee pursuant to the provisions of this paragraph (b) shall be retained by
the Collateral Trustee in an account to be established by the Collateral Trustee
upon receipt of such money or other property and shall be applied in accordance
with the provisions of Section 8. After all Events of Default have been cured or
waived and the Borrower has delivered to the Collateral Trustee certificates to
that effect, the Collateral Trustee shall, within five Business Days after all
such Events of Default have been cured or waived, repay to each Subsidiary
Pledgor all cash dividends, interest or principal (without interest) that such
Subsidiary Pledgor would otherwise be permitted to retain pursuant to the terms
of paragraph (a)(iii) above and which remain in such account after application
in accordance with Section 8.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Subsidiary Pledgor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to paragraph
(a)(i) of this Section 6, and the obligations of the Collateral Trustee under
paragraph (a)(ii) of this Section 6, shall cease, and all such rights shall
thereupon become vested in the Collateral Trustee, which shall have the sole and
exclusive right and authority to exercise such voting and consensual rights and
powers; provided that the Collateral Trustee shall, at its sole discretion (or
with the consent of the Requisite Secured Parties, if the Collateral Trustee so
elects), have the right from time to time following and during the continuance
of an Event of Default to permit the Subsidiary Pledgors to exercise such
rights. After all Events of Default have been cured or waived, such Subsidiary
Pledgor will have the right to exercise the voting and consensual rights and
powers that it would otherwise be entitled to exercise pursuant to the terms of
paragraph (a)(i) above.
SECTION 7. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Collateral Trustee may sell or otherwise transfer or dispose
of the Collateral, or any part thereof, at a public or private sale or at any
broker's board or on any securities exchange, for cash, upon credit or for
future delivery as the Collateral Trustee shall deem appropriate. The Collateral
Trustee shall be authorized at any such sale (if it deems it advisable to do so)
to restrict the prospective bidders or purchasers to
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Persons who will represent and agree that they are purchasing the Collateral for
their own account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Collateral Trustee shall
have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold. Each such purchaser at any such sale shall hold
the property sold absolutely free from any claim or right on the part of any
Subsidiary Pledgor and, to the extent permitted by applicable law, the
Subsidiary Pledgors hereby waive all rights of redemption, stay, valuation and
appraisal any Subsidiary Pledgor now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted.
The Collateral Trustee shall give the Borrower and each applicable
Subsidiary Pledgor 10 days' prior written notice (which each Subsidiary Pledgor
agrees is reasonable notice within the meaning of Section 9-611 of the UCC or
its equivalent in other jurisdictions) of the Collateral Trustee's intention to
make any sale of such Subsidiary Pledgor's Collateral. Such notice, in the case
of a public sale, shall state the time and place for such sale and, in the case
of a sale at a broker's board or on a securities exchange, shall state the board
or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Trustee
may fix and state in the notice of such sale. At any such sale, the Collateral,
or portion thereof, to be sold may be sold in one lot as an entirety or in
separate parcels, as the Collateral Trustee may (in its sole and absolute
discretion) determine. The Collateral Trustee shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The
Collateral Trustee may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Trustee until
the sale price is paid in full by the purchaser or purchasers thereof, but the
Collateral Trustee shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public (or, to the extent permitted by applicable law, private) sale made
pursuant to this Section 7, any Secured Party may bid for or purchase, free from
any right of redemption, stay or appraisal on the part of any Subsidiary Pledgor
(all said rights being also hereby waived and released), the Collateral or any
part thereof offered for sale and may make payment on account thereof by using
any claim then due and payable to it from such Subsidiary Pledgor as a credit
against the purchase price, and it may, upon compliance with the terms of such
sale, hold, retain and dispose of such property without further accountability
to such Subsidiary Pledgor therefor. For purposes hereof, (a) a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof, (b) the Collateral Trustee shall be free to carry out such sale
pursuant to such agreement and (c) such Subsidiary Pledgor shall not be entitled
to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Trustee shall have entered
into such an agreement all Events of Default shall have been remedied and the
Obligations paid in
11
full. As an alternative to exercising the power of sale herein conferred upon
it, the Collateral Trustee may proceed by a suit or suits at law or in equity to
foreclose upon the Collateral and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 7 shall be deemed to conform to the
commercially reasonable standards as provided in Section 9-610(b) of the UCC or
its equivalent in other jurisdictions.
SECTION 8. Application of Proceeds of Sale. The Collateral Trustee
shall apply the proceeds of any collection or sale of the Collateral, as well as
any Collateral consisting of cash, in the manner set forth in the Collateral
Trust Agreement; provided, however, that if the Collateral Trust Agreement shall
not be in effect, such proceeds and cash shall be applied as follows:
FIRST, to the payment of all costs and expenses incurred by
the Agent or the Collateral Trustee (in its capacity as such hereunder
or under any other Loan Document) in connection with such collection or
sale or otherwise in connection with this Agreement or any of the
Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Collateral Trustee or any Secured Party hereunder or under any other
Loan Document on behalf of any Subsidiary Pledgor and any other costs
or expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Credit Agreement
Obligations (the amounts so applied to be distributed among the holders
of the Credit Agreement Obligations pro rata in accordance with the
amounts of the Credit Agreement Obligations owed to them on the date of
any such distribution); and
THIRD, to the Subsidiary Pledgors, their successors or
assigns, or as a court of competent jurisdiction may otherwise direct.
The Collateral Trustee shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Trustee (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of any such proceeds, moneys or balances by the Collateral Trustee
or of the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Trustee or such officer or be
answerable in any way for the misapplication thereof.
SECTION 9. Reimbursement of Collateral Trustee. (a) Each Subsidiary
Pledgor jointly and severally agrees to pay upon demand to the Collateral
Trustee the amount of any and all reasonable expenses, including the reasonable
fees, other charges and disbursements of a single counsel in New York and such
other local or special counsel as may be reasonably necessary in connection
therewith and of any experts or agents, that
12
the Collateral Trustee may incur in connection with (i) the administration of
this Agreement, (ii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Collateral Trustee hereunder or (iv) the
failure by such Subsidiary Pledgor to perform or observe any of the provisions
hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Subsidiary Pledgor agrees to jointly and severally
indemnify the Collateral Trustee, the other Indemnitees (as defined in Section
9.03(b) of the Credit Agreement), the BFI Trustee, the AWNA Trustee and the 2001
Indenture Trustee (collectively, the "Shared Collateral Indemnitees") against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable fees of a single counsel
in New York and such other local and special counsel as may be reasonably
necessary in connection therewith, other charges and disbursements, incurred by
or asserted against any Indemnitee arising out of, in any way connected with, or
as a result of, (i) the execution or delivery of this Agreement, the AWNA
Indenture, any 2001 Indenture and the BFI Indenture or any other Loan Document
or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder or
the consummation of the Transactions and the other transactions contemplated
hereby or thereby or (ii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Shared Collateral
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by a final nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Shared Collateral Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 9 shall remain operative and in full force and effect regardless
of the termination of this Agreement, any other Loan Document, the BFI
Indenture, the AWNA Indenture or any 2001 Indenture, the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement, any
other Loan Document, the BFI Indenture, the AWNA Indenture or any 0000 Xxxxxxxxx
or any investigation made by or on behalf of the Collateral Trustee or any other
Secured Party. All amounts due under this Section 9 shall be payable on written
demand therefor and shall bear interest at the rate specified in Section 2.13 of
the Credit Agreement.
SECTION 10. Collateral Trustee Appointed Attorney-in-Fact. Each
Subsidiary Pledgor hereby appoints the Collateral Trustee the attorney-in-fact
of such Subsidiary Pledgor for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument that the
Collateral Trustee may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest; provided
that the Collateral Trustee shall have such right, only upon the occurrence and
during the continuance of an Event of Default of which the Collateral Trustee
shall have received written notice from the Agent or a Trustee under
13
the applicable Debt Instrument, which right shall include the full power of
substitution either in the Collateral Trustee's name or in the name of such
Subsidiary Pledgor, to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue of
any Collateral, to endorse checks, drafts, orders and other instruments for the
payment of money payable to such Subsidiary Pledgor representing any interest or
dividend or other distribution payable in respect of the Collateral or any part
thereof or on account thereof and to give full discharge for the same, to
settle, compromise, prosecute or defend any action, claim or proceeding with
respect thereto, and to sell, assign, endorse, pledge, transfer and to make any
agreement respecting, or otherwise deal with, the same; provided, however, that
nothing herein contained shall be construed as requiring or obligating the
Collateral Trustee to make any commitment or inquiry as to the nature or
sufficiency of any payment received by the Collateral Trustee, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Collateral Trustee and the other Secured Parties
shall be accountable only for amounts actually received as a result of the
exercise of the powers granted to them herein, and neither they nor their
officers, directors, employees or agents shall be responsible to any Subsidiary
Pledgor for any act or failure to act hereunder, except to the extent determined
by a court of competent jurisdiction by a final non-appealable judgment to have
resulted from their own gross negligence or wilful misconduct.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Collateral Trustee, the Administrative Agent, any Issuing Bank, any Lender, the
AWNA Trustee, the BFI Trustee or the 2001 Indenture Trustee in exercising any
power or right hereunder or under any other Loan Document, the BFI Indenture,
the AWNA Indenture or any 2001 Indenture shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Collateral Trustee hereunder and
of the other Secured Parties under the other Loan Documents, the BFI Indenture,
the AWNA Indenture and the 2001 Indentures are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provisions of this Agreement or any other Loan Document, the BFI Indenture, the
AWNA Indenture or any 0000 Xxxxxxxxx or consent to any departure by any
Subsidiary Pledgor therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit under the Credit Agreement shall not be construed
as a waiver of any Default under the Credit Agreement. No notice or demand on
any Subsidiary Pledgor or any other Loan Party in any case shall entitle such
Subsidiary Pledgor or any other Loan Party to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Collateral Trustee and the Subsidiary Pledgor or Subsidiary Pledgors with
respect to which such
14
waiver, amendment or modification is to apply, subject to any consent required
in accordance with Section 9.02 of the Credit Agreement.
SECTION 12. Securities Act, etc. In view of the position of the
Subsidiary Pledgors in relation to the Pledged Securities, or because of other
current or future circumstances, a question may arise under the Securities Act
of 1933, as now or hereafter in effect, or any similar statute hereafter enacted
analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being collectively referred to herein as the "Federal
Securities Laws") with respect to any disposition of the Pledged Securities
permitted hereunder. Each Subsidiary Pledgor understands that compliance with
the Federal Securities Laws might very strictly limit the course of conduct of
the Collateral Trustee if the Collateral Trustee were to attempt to dispose of
all or any part of the Pledged Securities, and might also limit the extent to
which or the manner in which any subsequent transferee of any Pledged Securities
could dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Collateral Trustee in any attempt to dispose of all or
part of the Pledged Securities under applicable Blue Sky or other state
securities laws or similar laws analogous in purpose or effect. Each Subsidiary
Pledgor recognizes that in light of such restrictions and limitations the
Collateral Trustee may, with respect to any sale of the Pledged Securities,
limit the purchasers to those who will agree, among other things, to acquire
such Pledged Securities for their own account, for investment, and not with a
view to the distribution or resale thereof. Each Subsidiary Pledgor acknowledges
and agrees that in light of such restrictions and limitations, the Collateral
Trustee, in its sole and absolute discretion, (a) may proceed to make such a
sale whether or not a registration statement for the purpose of registering such
Pledged Securities or part thereof shall have been filed under the Federal
Securities Laws and (b) may approach and negotiate with a single potential
purchaser to effect such sale. Each Subsidiary Pledgor acknowledges and agrees
that any such sale might result in prices and other terms less favorable to the
seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Collateral Trustee shall incur no responsibility or
liability for selling all or any part of the Pledged Securities at a price that
the Collateral Trustee, in its sole and absolute discretion, may in good xxxxx
xxxx reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might have been realized if the sale were deferred
until after registration as aforesaid or if more than a single purchaser were
approached. The provisions of this Section 12 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Collateral Trustee sells.
SECTION 13. Registration, etc. Each Subsidiary Pledgor agrees that,
upon the occurrence and during the continuance of an Event of Default, if for
any reason the Collateral Trustee desires to sell any of the Pledged Securities
at a public sale, it will, at any time and from time to time, upon the written
request of the Collateral Trustee, use its best efforts to take or to cause the
issuer of such Pledged Securities to take such action and prepare, distribute
and/or file such documents, as are required or advisable in the reasonable
opinion of counsel for the Collateral Trustee to permit the public sale of such
Pledged Securities. Each Subsidiary Pledgor further agrees to indemnify, defend
and hold harmless the Collateral Trustee, each other Secured Party, any
underwriter and their
15
respective officers, directors, affiliates and controlling persons from and
against all losses, liabilities, expenses, costs of counsel (including, without
limitation, reasonable fees and expenses to the Collateral Trustee of a single
counsel in New York and such other local and special counsel as may be
reasonably necessary in connection therewith), and claims (including the costs
of investigation) that they may incur insofar as such loss, liability, expense
or claim arises out of or is based upon any alleged untrue statement of a
material fact contained in any prospectus (or any amendment or supplement
thereto) or in any notification or offering circular, or arises out of or is
based upon any alleged omission to state a material fact required to be stated
therein or necessary to make the statements in any thereof not misleading,
except insofar as the same may have been caused by any untrue statement or
omission based upon information furnished in writing to such Subsidiary Pledgor
or the issuer of such Pledged Securities by the Collateral Trustee or any other
Secured Party expressly for use therein. Each Subsidiary Pledgor further agrees,
upon such written request referred to above, to use its best efforts to qualify,
file or register, or cause the issuer of such Pledged Securities to qualify,
file or register, any of the Pledged Securities under the Blue Sky or other
securities laws of such states as may be requested by the Collateral Trustee and
keep effective, or cause to be kept effective, all such qualifications, filings
or registrations. Each Subsidiary Pledgor will bear all costs and expenses of
carrying out its obligations under this Section 13. Each Subsidiary Pledgor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section 13 and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section 13 may be specifically enforced.
SECTION 14. Security Interest Absolute. All rights of the Collateral
Trustee hereunder, the grant of a security interest in the Collateral and all
obligations of each Subsidiary Pledgor hereunder, shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document, the BFI Indenture, the AWNA
Indenture, any 2001 Indenture, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, the BFI Indenture,
the AWNA Indenture, any 2001 Indenture, any other Loan Document or any other
agreement or instrument relating to any of the foregoing, (c) any exchange,
release or nonperfection of any other collateral, or any release or amendment or
waiver of or consent to or departure from any guaranty, for all or any of the
Obligations or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Subsidiary Pledgor in respect of
the Obligations or in respect of this Agreement (other than the indefeasible
payment in full of all the monetary Obligations).
SECTION 15. Termination or Release. This Agreement and the pledge
hereunder (i) shall cease to be effective with respect to the BFI Senior Note
Obligations and the AWNA Senior Note Obligations on the earlier of the date (a)
on which all the AWNA Indenture Debt and the BFI Indenture Debt shall have been
paid in full to the holders thereof and (b) that is ten days after the
provisions of the AWNA Indenture, the BFI Indenture and each 2001 Indenture that
require equal and ratable security shall be held by
16
a court of competent jurisdiction to be invalid, void or unenforceable and (ii)
shall terminate when all the monetary Credit Agreement Obligations have been
indefeasibly paid in full, the Lenders have no further commitment to lend, the
LC Exposure has been reduced to zero, the Issuing Banks have no further
commitment to issue Letters of Credit under the Credit Agreement and the Agent
has given written notification thereof to the Collateral Trustee, at which time
the Collateral Trustee shall execute and deliver to the Subsidiary Pledgors, at
the Subsidiary Pledgors' expense, all documents which the Subsidiary Pledgors
shall reasonably request to evidence such termination. Any execution and
delivery of such documents pursuant to this Section 15 shall be without recourse
to or warranty by the Collateral Trustee and shall, upon the reasonable prior
request of the Subsidiary Pledgors, be made prior to such termination for
holding in escrow pending such termination. A Subsidiary Pledgor shall
automatically be released from its obligations hereunder and the pledge of the
Collateral of such Subsidiary Pledgor hereunder shall be automatically released
in the event that all the Equity Interests of such Subsidiary Pledgor shall be
sold, transferred or otherwise disposed of to a Person that is not an Affiliate
of AWNA in accordance with the terms of the Credit Agreement and the other Loan
Documents; provided that, if required by the terms of the Credit Agreement, the
Required Lenders or all the Lenders, as the case may be, shall have consented to
such sale, transfer or other disposition and the terms of such consent did not
provide otherwise; and, provided, further, that any release of a Subsidiary
Pledgor or any Collateral after the occurrence and during the continuance of a
Triggering Event (as defined in the Collateral Trust Agreement) shall be subject
to the prior approval of the Collateral Trustee. The Pledge hereunder shall
automatically terminate with respect to any Collateral sold, transferred or
disposed of in accordance with this Agreement and the Credit Agreement, and the
Collateral Agent shall execute and deliver to the Pledgors, at the Pledgors'
expense, all documents which the Pledgors shall reasonably request to evidence
such termination (which documents shall, upon prior request of the Pledgors, be
delivered prior to, and held in escrow pending, such sale, transfer or
disposition).
SECTION 16. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Subsidiary Pledgor shall be given to
it in care of AWNA. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt. Notices to the AWNA Indenture Trustee,
the BFI Indenture Trustee and the 2001 Indenture Trustee shall be given as
provided in the AWNA Indenture, the BFI Indenture and the 2001 Indenture,
respectively.
SECTION 17. Further Assurances. Each Subsidiary Pledgor agrees to do
such further acts and things, and to execute and deliver such additional
conveyances, assignments, agreements and instruments, as the Collateral Trustee
may at any time reasonably request in connection with the administration and
enforcement of this Agreement or with respect to the Collateral or any part
thereof or in order better to assure and confirm unto the Collateral Trustee its
rights and remedies hereunder.
SECTION 18. Binding Effect; Several Agreement; Assignments; Successor
Collateral Trustee. Whenever in this Agreement any of the parties hereto is
referred to,
17
such reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of any
Subsidiary Pledgor that are contained in this Agreement shall bind and inure to
the benefit of its successors and assigns. This Agreement shall become effective
on the Restatement Effective Date, and thereafter shall be binding upon the
Subsidiary Pledgors and the Collateral Trustee and their successors and assigns,
and shall inure to the benefit of each Subsidiary Pledgor, the Collateral
Trustee and the other Secured Parties, and their successors and assigns, except
that no Subsidiary Pledgor shall have the right to assign its rights hereunder
or any interest herein or in the Collateral (and any such attempted assignment
shall be void), except as expressly contemplated by this Agreement or the other
Loan Documents. This Agreement shall be construed as a separate agreement with
respect to each Subsidiary Pledgor and may be amended, modified, supplemented,
waived or released with respect to any Subsidiary Pledgor without the approval
of any other Subsidiary Pledgor and without affecting the obligations of any
other Subsidiary Pledgor hereunder. The Collateral Trustee may resign and a
successor collateral trustee may be appointed in the manner provided in the
Collateral Trust Agreement. Upon the acceptance of any appointment as a
collateral trustee by a successor collateral trustee, that successor collateral
trustee shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring collateral trustee, as secured
party under this Agreement, and the retiring collateral trustee shall thereupon
be discharged from its duties and obligations under this Agreement. After any
retiring collateral trustee's resignation, the provisions of this Agreement
shall inure to its benefit as to any actions taken or omitted to be taken by it
under this Agreement while it was Collateral Trustee.
SECTION 19. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Subsidiary Pledgor
herein and in the other Loan Documents and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied
upon by the Collateral Trustee and the other Secured Parties and shall survive
the making by the Lenders of the Loans and the issuance of the Letters of Credit
by the Issuing Banks, regardless of any investigation made by any Secured Party
or on its behalf, and shall continue in full force and effect until this
Agreement has been terminated in accordance with Section 15.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
18
SECTION 21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract (subject to Section 18), and
shall become effective as provided in Section 18. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 22. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.
SECTION 23. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Pledgor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or any other Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Collateral Trustee or any other Secured Party may otherwise have to bring
any action or proceeding relating to this Agreement, any other Loan Document,
the BFI Indenture, the AWNA Indenture or any 2001 Indenture against any
Subsidiary Pledgor or its properties in the courts of any jurisdiction.
(b) Each Subsidiary Pledgor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 16. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 24. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY
19
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, THE BFI INDENTURE, THE AWNA INDENTURE
OR THE 2001 INDENTURE . EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 25. Additional Subsidiary Pledgors. Pursuant to Section 5.10(b)
of the Credit Agreement, each Specified Subsidiary that is a subsidiary of BFI
that was not in existence or not a such a Specified Subsidiary on the
Restatement Effective Date is required to enter in this Agreement as a
Subsidiary Pledgor upon becoming such a Specified Subsidiary if such Subsidiary
owns or possesses property of a type that would be considered Collateral
hereunder. Upon execution and delivery by the Collateral Trustee and a
Subsidiary of an instrument in the form of Annex 1 hereto, such Subsidiary shall
become a Subsidiary Pledgor hereunder with the same force and effect as if
originally named as a Subsidiary Pledgor herein. The execution and delivery of
such instrument shall not require the consent of any Subsidiary Pledgor
hereunder. The rights and obligations of each Subsidiary Pledgor hereunder shall
remain in full force and effect notwithstanding the addition of any new
Subsidiary Pledgor as a party to this Agreement.
SECTION 26. Collateral Trustee in its Individual Capacity. The
Collateral Trustee and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with Allied Waste and its
Subsidiaries as though the Collateral Trustee were not collateral trustee
hereunder. With respect to the Loans made by it and all Obligations owing to it,
the Collateral Trustee shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not the
collateral trustee, and the terms "Lender" and "Lenders" shall include the
Collateral Trustee in its individual capacity.
20
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.,
by
____________________________________
Name:
Title:
THE SUBSIDIARY PLEDGORS LISTED ON SCHEDULE I
HERETO,
by
____________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Collateral Trustee,
by
____________________________________
Name:
Title:
21
SUBSIDIARY PLEDGORS
Name Address
22
CAPITAL STOCK
Issuer Number of Registered Number and Percentage of
Certificate Owner Class of Shares
Shares
OTHER EQUITY INTERESTS
Issuer Number of Registered Number and Percentage of
Certificate Owner Class of Interests
Interests
DEBT OBLIGATIONS
Issuer Principal Date Maturity Date
Amount
Annex 1 to the
Shared Collateral Pledge Agreement
SUPPLEMENT NO.__ dated as of (this
"Supplement"), to the SHARED COLLATERAL PLEDGE
AGREEMENT dated as of July 30, 1999 and amended and
restated as of April 29, 2003 (as amended,
supplemented or otherwise modified from time to time,
the "Shared Collateral Pledge Agreement") among
Allied Waste North America, Inc., a Delaware
corporation ("AWNA"), each Subsidiary listed on
Schedule I thereto and each Subsidiary becoming a
party thereto as provided in Section 25 thereof (each
such Subsidiary individually, a "Subsidiary Pledgor",
and collectively, the "Subsidiary Pledgors"), and
JPMorgan Chase Bank, a New York banking corporation
("JPMCB"), as collateral trustee (in such capacity,
the "Collateral Trustee") for the Secured Parties (as
defined in the Shared Collateral Pledge Agreement
referred to below).
A. Reference is made to (a) the Credit Agreement dated as of July 21,
1999 and amended and restated as of April 29, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among AWNA,
Allied Waste Industries, Inc., the lenders from time to time party thereto (the
"Lenders"), and JPMCB, as administrative agent and collateral agent for the
Lenders.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Shared Collateral Pledge
Agreement and the Credit Agreement.
C. The Subsidiary Pledgors have entered into the Shared Collateral
Pledge Agreement in order to induce the Lenders to make Loans and other
extensions of credit under the Credit Agreement. Section 5.10(b) of the Credit
Agreement provides that additional Specified Subsidiaries of AWNA shall become
Subsidiary Pledgors under the Shared Collateral Pledge Agreement by execution
and delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "New Subsidiary Pledgor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary
Pledgor under the Shared Collateral Pledge Agreement in order to induce the
Lenders to make additional Loans and other extensions of credit under the Credit
Agreement.
Accordingly, the Collateral Trustee and the New Subsidiary Pledgor
agree as follows:
SECTION 1. In accordance with Section 25 of the Shared Collateral
Pledge Agreement, the New Subsidiary Pledgor by its signature below becomes a
Subsidiary Pledgor under the Shared Collateral Pledge Agreement with the same
force and effect as if originally named therein as a Subsidiary Pledgor and the
New Subsidiary Pledgor hereby agrees (a) to all the terms and provisions of the
Shared Collateral Pledge Agreement applicable to it as a Subsidiary Pledgor
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Subsidiary Pledgor
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thereunder are true and correct in all material respects on and as of the date
hereof. In furtherance of the foregoing, the New Subsidiary Pledgor, as security
for the payment and performance in full of the Obligations (as defined in the
Shared Collateral Pledge Agreement), does hereby create and grant to the
Collateral Trustee, its successors and assigns, for the benefit of the Secured
Parties, their successors and assigns, a security interest in and lien on all of
the New Subsidiary Pledgor's right, title and interest in and to the Collateral
(as defined in the Shared Collateral Pledge Agreement) of the New Subsidiary
Pledgor. Each reference to "Subsidiary Pledgor" in the Shared Collateral Pledge
Agreement shall be deemed, if applicable, to include the New Subsidiary Pledgor.
The Shared Collateral Pledge Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Subsidiary Pledgor represents and warrants to the
Collateral Trustee and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Trustee shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Pledgor and the
Collateral Trustee. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. The New Subsidiary Pledgor hereby represents and warrants
that set forth on Schedule I attached hereto is a true and correct schedule of
all its Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Shared
Collateral Pledge Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Shared Collateral Pledge Agreement shall not in any way be
affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 9.01 of the Credit Agreement. All
communications and
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notices hereunder to the New Subsidiary Pledgor shall be given to it in care of
AWNA as set forth in the Shared Collateral Pledge Agreement.
SECTION 9. The New Subsidiary Pledgor agrees to reimburse (or cause to
be reimbursed) the Collateral Trustee for its reasonable out-of-pocket expenses
in connection with this Supplement, including the reasonable fees, other charges
and disbursements of counsel for the Collateral Trustee.
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IN WITNESS WHEREOF, the New Subsidiary Pledgor and the Collateral
Trustee have duly executed this Supplement to the Shared Collateral Pledge
Agreement as of the day and year first above written.
[Name of New Subsidiary Pledgor],
by
________________________________
Name:
Title:
Address:
JPMORGAN CHASE BANK, as Collateral Trustee,
by
________________________________
Name:
Title:
Schedule 1 to
Supplement No.
To the Shared Collateral Pledge Agreement
Pledged Securities of the New Subsidiary Pledgor
CAPITAL STOCK
Issuer Number of Registered Number and Percentage of
Certificate Owner Class of Shares
Shares
OTHER EQUITY INTERESTS
Issuer Number of Registered Number and Percentage of
Certificate Owner Class of Interests
Interests
DEBT OBLIGATIONS
Issuer Principal Date Maturity Date
Amount
