EXHIBIT 10.14
EXECUTION COPY
COLLATERAL TRUST AGREEMENT dated as of July
30, 1999 and amended and restated as of April 29,
2003 (as amended, supplemented or otherwise modified
from time, this "Agreement"), among ALLIED WASTE
NORTH AMERICA, INC., a Delaware corporation ("AWNA"),
each subsidiary of AWNA listed on Schedule I hereto
or becoming a party hereto pursuant to Section 8.12
(the "BFI Companies"), and JPMORGAN CHASE BANK, a New
York banking corporation ("JPMCB"), as collateral
trustee (in such capacity, the "Collateral Trustee")
for the holders from time to time of the Secured
Obligations (as hereinafter defined), as
beneficiaries.
Reference is made to 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
(in such capacities, the "Agent"). Each of the BFI Companies has entered into a
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") with the Agent pursuant
to which they have, jointly and severally, guaranteed the Credit Agreement
Obligations (as hereinafter defined). Each of the BFI Companies has also entered
into the Shared Collateral Security Agreement (as hereinafter defined) and
certain BFI Companies have entered into the Shared Collateral Pledge Agreement
(as hereinafter defined) in order to secure, among other things, the Credit
Agreement Obligations, including their obligations under the Subsidiary
Guarantee Agreement, and such BFI Companies have pledged collateral to the
Collateral Trustee under such agreements.
Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware corporation
("BFI"), has entered into a Restated Indenture dated as of September 1, 1991 (as
amended, supplemented or otherwise modified from time to time, the "BFI
Indenture") between BFI and JPMCB (formerly Chase Bank of Texas, N.A.), as
successor trustee to First City Texas-Houston, N.A. (together with any
successor, in such capacity, the "BFI Trustee"), pursuant to which BFI has
issued senior notes (the "BFI Indenture Debt"). AWNA has guaranteed the BFI
Indenture Debt pursuant to a supplemental indenture, dated as of July 30, 1999,
to the BFI Indenture. 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, secure the Credit
Agreement Obligations without providing that the BFI Indenture Debt be secured
equally and ratably with such obligations.
AWNA has entered into an Indenture dated as of December 23,
1998 (as amended, supplemented or otherwise modified from time to time, the
"AWNA Senior
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Note Indenture") among AWNA, certain subsidiaries of AWNA, Allied Waste and U.S.
Bank Trust National Association, as trustee (together with any successor, in
such capacity, the "AWNA Trustee"), pursuant to which AWNA has issued senior
notes. Pursuant to the provisions of the AWNA Senior Note Indenture, AWNA may
not, and may not permit any subsidiary of AWNA, including the BFI Companies (if
such subsidiary constitutes a Restricted Subsidiary (as defined in the AWNA
Senior Note Indenture)) to, secure the BFI Indenture Debt without providing that
the AWNA Indenture Debt be secured equally and ratably with the BFI Indenture
Debt.
The BFI Companies are entering into this Agreement, and have
requested the Collateral Trustee to act as collateral trustee hereunder, to
enable the BFI Companies to comply with the provisions of the BFI Indenture and
the AWNA Senior Note Indenture. The Collateral Trustee is willing to act as
collateral trustee hereunder on the terms and subject to the conditions set
forth in this Agreement.
Accordingly, the BFI Companies and the Collateral Trustee
hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Incorporation by Reference. 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 or
the Subsidiary Guarantee Agreement, as applicable. All capitalized terms used in
this Agreement and defined in the New York UCC (as defined herein) and not
otherwise defined in this Agreement, the Credit Agreement or the Subsidiary
Guarantee Agreement shall have the meanings specified therein; the term
"instrument" shall have the meaning specified in Article 9 of the New York UCC.
The rules of construction and interpretation specified in Section 1.03 of the
Credit Agreement also apply to this Agreement.
SECTION 1.02. Certain Definitions. (a) As used in this
Agreement, the capitalized terms defined in the recitals hereto shall have the
meanings specified therein, and the following terms have the meanings specified
below:
"AWNA Indenture Debt" shall mean the senior notes issued by
AWNA prior to July 30, 1999 under the AWNA Senior Note Indenture and the 2001
Senior Notes.
"AWNA Senior Note Obligations" means the obligations (without
duplication) of AWNA and the BFI Companies to pay the principal of, premium, if
any, and interest on, the AWNA Indenture Debt.
"BFI Senior Note Obligations" means the obligations (without
duplication) of BFI and AWNA to pay the principal of, premium, if any, and
interest on, the BFI Indenture Debt.
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"Collateral" means the property and assets from time to time
subject to Liens under the Collateral Documents.
"Collateral Account" shall have the meaning specified in
Section 3.01 of this Agreement.
"Collateral Documents" means the Shared Collateral Pledge
Agreement and the Shared Collateral Security Agreement.
"Collateral Trustee's Fees" means all fees, costs and expenses
of the Collateral Trustee of the type described in Sections 5.03, 5.04, 5.05 and
5.06 of this Agreement.
"Credit Agreement Obligations" shall have the meaning assigned
to such term in the Shared Collateral Security Agreement.
"Debt Instruments" means (i) the Credit Agreement and the
Subsidiary Guarantee Agreement, (ii) the BFI Indenture, (iii) the AWNA Senior
Note Indenture, (iv) the 2001 Indentures and (v) each Hedging Agreement under
which a Credit Agreement Obligation exists. For purposes hereof, the amount at
any time of any such Hedging Agreement or Secured Obligation thereunder shall be
the amounts that are owed to a Secured Party thereunder after a termination
thereof and after giving effect to any netting arrangements applicable to such
amounts.
"Distribution Date" means the date on which any funds are
distributed by the Collateral Trustee in accordance with the provisions of
Section 4.01.
"Event of Default" means any "Event of Default" under the
Credit Agreement, the AWNA Senior Note Indenture, any 2001 Indenture or the BFI
Indenture (in each case, as such term is defined in the Credit Agreement or such
Indenture).
"Indentures" means the AWNA Senior Note Indenture, the BFI
Indenture and the 2001 Indentures.
"New York UCC" means the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Requisite Secured Parties" means, at any time, the Secured
Party or Secured Parties holding at least 51% in aggregate amount of the Secured
Obligations then outstanding; provided that any balance in a Secured Party's
Collateral Account shall be deducted from the amount of Secured Obligations held
by such Secured Party for purposes of determining the outstanding Secured
Obligations under this definition.
"Secured Obligations" means, without duplication, (i) the
Credit Agreement Obligations, (ii) the AWNA Senior Note Obligations and (iii)
the BFI Senior Note Obligations; provided, however, that (x) "Secured
Obligations" shall not include any obligations in respect of debt securities
issued under the AWNA Senior Note Indenture or the BFI Indenture after July 30,
1999, except for the 2001 Senior Notes
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issued pursuant to the 2001 Indentures and (y) for the purposes of applying the
provisions of Sections 2.03, 4.01 and 4.02, there shall be deducted from the
amount of Secured Obligations held by any Secured Party an amount equal to the
balance in such Secured Party's Collateral Account.
"Secured Parties" means (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 or an Affiliate of 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, amended or renewed or is otherwise terminated, (f) the beneficiaries
of each indemnification obligation undertaken by AWNA or any Loan Party under
any Loan Document, (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.
"Triggering Event" means the occurrence of an Event of
Default, the acceleration of the principal amount of all Secured Obligations (to
the extent capable of being accelerated) under the terms of any one of the
Credit Agreement, the AWNA Senior Note Indenture, any 2001 Indenture or the BFI
Indenture and receipt by the Collateral Trustee of a written notice from the
Agent or a Trustee under such Debt Instrument to such effect.
"Trustee" means the AWNA Trustee, the 2001 Indenture Trustee
or the BFI Trustee, as applicable.
"Trust Estate" means (i) the right, title and interest of the
Collateral Trustee in, to and under each of the Collateral Documents and (ii)
the amounts from time to time held in the Collateral Accounts.
"2001 Indenture Trustee" means the trustee under any 2001
Indenture.
(b) The words "hereof", "herein" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof. All references herein to Articles or
Sections shall, unless otherwise specified, be deemed to refer to Articles and
Sections of this Agreement.
ARTICLE II
Declaration and Acceptance of Trust; Remedies
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SECTION 2.01. Declaration and Acceptance of Trust. The
Collateral Trustee hereby declares, and each of the BFI Companies agrees, that
the Collateral Trustee holds the Trust Estate as trustee in trust under this
Agreement for the equal and ratable benefit of the Secured Parties as provided
herein. By acceptance of the benefits of this Agreement, each Secured Party
(whether or not a signatory hereto) (i) consents to the appointment of the
Collateral Trustee as trustee hereunder, (ii) confirms that the Collateral
Trustee shall have the authority to act as the exclusive agent of such Secured
Party for enforcement of any remedies under or with respect to any Collateral
Document and the giving or withholding of any consent or approval relating to
any Collateral or any BFI Company's obligations with respect thereto and (iii)
agrees that, except as provided in this Agreement, it shall not take any action
to enforce any of such remedies or give any such consents or approvals.
SECTION 2.02. Determinations Relating to Collateral. Prior to
the occurrence of a Triggering Event, in the event (i) the Collateral Trustee
shall receive any written request from AWNA or any BFI Company under any
Collateral Document for consent or approval with respect to any matter or thing
relating to any Collateral Document or Collateral or any BFI Company's
obligations with respect thereto, (ii) there shall be due to or from the
Collateral Trustee under the provisions of any Collateral Document any material
performance or the delivery of any material instrument or (iii) the Collateral
Trustee shall become aware of any nonperformance by any BFI Company of any
covenant or any breach of any representation or warranty set forth in any
Collateral Document, then, in each such event, the Collateral Trustee shall
advise the Agent of the matter or thing as to which consent has been requested
or the performance or instrument required to be delivered or the nonperformance
or breach of which the Collateral Trustee has become aware. Prior to the
occurrence of a Triggering Event, the Agent and the Required Lenders shall have
the exclusive authority to direct the Collateral Trustee's response to any of
the events or circumstances contemplated in clauses (i), (ii) and (iii) above.
SECTION 2.03. Remedies. (a) Upon the occurrence of a
Triggering Event, or upon receipt of any written directions as contemplated by
paragraph (b) of this Section 2.03, the Collateral Trustee shall, within five
days thereafter, notify each of the Secured Parties and AWNA in writing that a
Triggering Event exists or that the Collateral Trustee has received such written
directions, as the case may be, enclosing with such notice a copy of the
applicable notice or written directions, as the case may be.
(b) Following the occurrence of a Triggering Event, the
Requisite Secured Parties shall have the exclusive right to direct the time,
method and place of conducting any proceeding for the exercise of any right or
remedy available to the Collateral Trustee with respect to the Collateral, or of
exercising any trust or power conferred on the Collateral Trustee, or for the
taking of any other action authorized by the instruments comprising the Trust
Estate; provided, however, that nothing in this Section shall impair the right
of the Collateral Trustee in its discretion to take any action deemed proper by
the Collateral Trustee and which is not inconsistent with such direction by the
Requisite Secured Parties.
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SECTION 2.04. Right to Make Advances. In the event an advance
of funds shall at any time be required for the preservation or maintenance of
any Collateral, the Collateral Trustee or any Lender shall be entitled to make
such advance after notice to AWNA of its intention to do so but without notice
to any other Secured Party. Each such advance shall be reimbursed, with interest
accrued from the date such advance was made at the rate set forth in Section
2.13(c) of the Credit Agreement (the "Default Rate"), by AWNA upon demand by the
Collateral Trustee or such Lender, and if AWNA fails to comply with any such
demand, out of the proceeds of any Collateral distributed pursuant to clause
FIRST of Section 4.01. In the event any Secured Party shall receive any funds
which, under this Section 2.04, belong to the Collateral Trustee or any other
Secured Party, such Secured Party shall remit such funds promptly to the
Collateral Trustee for distribution to the Collateral Trustee or such other
Secured Party, as the case may be, and prior to such remittance shall hold such
funds in trust for the Collateral Trustee or such other Secured Party, as the
case may be.
SECTION 2.05. Nature of Secured Parties' Rights. All of the
Secured Parties shall be bound by any instruction or direction given by the
Required Lenders or Requisite Secured Parties, as applicable, pursuant to this
Article II.
ARTICLE III
Collateral Accounts
SECTION 3.01. Collateral Accounts. The Collateral Trustee
shall establish and, at all times thereafter until all amounts due to all
Secured Parties other than the Agent, the Lenders and other holders of the
Credit Agreement Obligations have been paid to such Secured Parties, there shall
be maintained with the Collateral Trustee a separate collateral trust account
(each, a "Collateral Account", and collectively, the "Collateral Accounts") for
each class of Secured Parties in respect of its applicable Debt Instruments. All
funds on deposit in the Collateral Accounts shall be held, applied and disbursed
by the Collateral Trustee as part of the Trust Estate in accordance with the
terms of this Agreement.
SECTION 3.02. Investment of Funds. The Collateral Trustee
shall invest and reinvest moneys on deposit in the Collateral Accounts at any
time in Permitted Investments (as defined in the Credit Agreement) as directed
in writing by AWNA, and the investment earnings thereon shall, so long as no
Event of Default shall have occurred and be continuing, be paid to AWNA monthly;
provided, however, that if any party other than a holder of Credit Agreement
Obligations claims entitlement to any such investment earnings, the same shall
not be released to AWNA but shall continue to be held and reinvested by the
Collateral Trustee pending receipt by the Collateral Trustee of joint
instructions signed by AWNA and such party or a nonappealable court judgment
determining the disposition of such earnings. AWNA shall bear the risk of loss
on any investment made hereunder (except for such losses that result from the
gross negligence or willful misconduct of the Collateral Trustee in failing to
follow proper investment instructions given by AWNA pursuant to this paragraph)
and shall, upon demand of the
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Collateral Trustee to AWNA, deliver immediately available funds to the
Collateral Trustee in an amount equal to such loss or losses.
ARTICLE IV
Application of Certain Amounts
SECTION 4.01. Application of Proceeds. If, following
acceleration of the principal amount of any Debt Instrument and pursuant to the
exercise of any remedy set forth in any Collateral Document, any Collateral is
sold or otherwise realized upon by the Collateral Trustee, the proceeds received
by the Collateral Trustee in respect of such Collateral shall be applied as soon
as practicable after receipt as follows:
FIRST: To the Collateral Trustee in an amount equal to the
Collateral Trustee's Fees which are unpaid as of the applicable
Distribution Date and to any Secured Party which has theretofore
advanced or paid any such Collateral Trustee's Fees in an amount equal
to the amount thereof so advanced or paid by such Secured Party and to
reimburse to the Collateral Trustee and any Lender the amount of any
advance made pursuant to Section 2.04 hereof (with interest thereon at
the Default Rate);
SECOND: To the Agent, the Lenders, other holders of Credit
Agreement Obligations and the Trustees, each in proportion to the
amount of Secured Obligations then owing to it (after giving effect to
any payments previously made under this Section), until all the Secured
Obligations have been paid in full; and
THIRD: After payment in full of all Secured Obligations, to
the BFI Companies or their successors or assigns, as their interests
may appear, or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 4.02. Application of Withheld Amounts. If at any time
any proceeds of Collateral collected or received by the Collateral Trustee are
distributable pursuant to Section 4.01 to any Secured Party, and if such Secured
Party shall give notice (each, a "Withheld Amount Notice") that all or a portion
of such proceeds (each such amount, a "Withheld Amount") shall be held by the
Collateral Trustee pending the application thereof to Secured Obligations, then,
notwithstanding the provisions of Section 4.01, the Collateral Trustee shall
hold such Withheld Amount in the applicable Collateral Account until such time
as the applicable Secured Party shall request the delivery thereof for
application to Secured Obligations pursuant to the provisions of Section 4.03.
SECTION 4.03. Release of Amounts in Collateral Accounts. (a)
Amounts on deposit in a Collateral Account with respect to Secured Obligations
shall be paid to the applicable Secured Party upon receipt by the Collateral
Trustee of a certificate of such Secured Party setting forth the name of the
Person to whom payment should be made and the amount to be delivered to such
Person and, in the case of amounts on deposit in any Collateral Account relating
to the BFI Indenture Debt or the AWNA
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Indenture Debt, stating that such amount will be applied to the payment of
Secured Obligations.
(b) If, at any time, funds are on deposit in a Collateral
Account with respect to the BFI Indenture Debt or the AWNA Indenture Debt and
the principal of and accrued interest on and all other amounts due in respect of
such BFI Indenture Debt or AWNA Indenture Debt, as the case may be, have been
paid in full, such funds shall be distributed and applied in accordance with the
provisions of Section 4.01 hereof.
SECTION 4.04. Payment Provisions. For the purposes of applying
the provisions of Section 4.01, all interest to be paid on any of the Secured
Obligations pursuant to the terms of any Debt Instrument shall, as among the
Secured Parties and irrespective of whether such interest is or would be
recognized or allowed in any bankruptcy or similar proceeding, be treated as due
and owing on the Secured Obligations.
ARTICLE V
Agreements With Collateral Trustee
SECTION 5.01. Delivery of Debt Instruments. On the Restatement
Effective Date, AWNA shall deliver to the Collateral Trustee a true and complete
copy of each of the Debt Instruments as in effect on the Restatement Effective
Date and not previously delivered to the Collateral Trustee prior to the
Restatement Effective Date. Promptly upon the execution thereof, AWNA shall
deliver to the Collateral Trustee a true and complete copy of any and all
amendments, modifications or supplements to any Debt Instrument and of any
Interest Rate Protection Agreement hereafter entered into which is a Debt
Instrument.
SECTION 5.02. Information as to Holders. AWNA shall deliver to
the Collateral Trustee from time to time upon request of the Collateral Trustee
a list setting forth, by each Debt Instrument, (i) the aggregate principal
amount outstanding thereunder, (ii) the interest rate or rates then in effect
thereunder, and (iii) the names of the holders thereof and the unpaid principal
amount thereof owing to each such holder. AWNA shall furnish to the Collateral
Trustee within 30 days of a request therefor a list setting forth the name and
address of each party to whom notices must be sent under the Debt Instruments,
and AWNA agrees to furnish promptly to the Collateral Trustee any changes or
additions to such list.
SECTION 5.03. Compensation and Expenses. AWNA agrees to pay to
the Collateral Trustee, from time to time upon demand, (i) compensation (which
shall not be limited by any provision of law in regard to compensation of a
trustee of an express trust) for its services hereunder and for administering
the Trust Estate, as heretofore agreed between the Collateral Trustee and AWNA,
and (ii) all of the reasonable fees, costs and expenses of the Collateral
Trustee (including, without limitation, the reasonable fees and disbursements of
a single counsel in New York and such other local and special counsel as may be
reasonably necessary in connection therewith as the Collateral Trustee
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elects to retain) (a) arising in connection with the preparation, execution,
delivery, modification and termination of this Agreement, or the enforcement of
any provisions hereof, or (b) incurred or required to be advanced in connection
with the administration of the Trust Estate or the preservation, protection or
defense of the Collateral Trustee's rights under this Agreement and in and to
the Collateral and the Trust Estate. The obligations of AWNA under this Section
5.03 shall survive the termination of this Agreement.
SECTION 5.04. Stamp and Other Similar Taxes. AWNA agrees to
indemnify and hold harmless the Collateral Trustee and each Secured Party from
any present or future claim or liability for any mortgage, stamp or other
similar tax and any penalties or interest with respect thereto, which may be
assessed, levied or collected by any jurisdiction in connection with this
Agreement and the Collateral Documents. The obligations of AWNA under this
Section 5.04 shall survive the termination of this Agreement.
SECTION 5.05. Filing Fees, Excise Taxes, etc. AWNA agrees to
pay or to reimburse the Collateral Trustee for any and all amounts in respect of
all search, filing, recording and registration fees, taxes, excise taxes and
other similar imposts which may be payable or determined to be payable in
respect of the execution, delivery, performance and enforcement of this
Agreement to the extent the same may be paid or reimbursed by AWNA without
subjecting the Collateral Trustee, the Trustees, the Agent or any Lender to any
civil or criminal liability. The obligations of BFI under this Section 5.05
shall survive the termination of this Agreement.
SECTION 5.06. Indemnification. (a) Each of the BFI Companies,
jointly and severally, agrees to pay, indemnify, and hold the Collateral Trustee
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the Collateral Documents;
provided, however, that the Collateral Trustee shall not be indemnified under
this paragraph to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements are found
by final judgment of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Collateral Trustee.
(b) In any suit, proceeding or action brought by the
Collateral Trustee with respect to the Collateral or for any sum owing in
respect of Secured Obligations, or to enforce the provisions of any Collateral
Document, each of the BFI Companies, jointly and severally, shall save,
indemnify and keep the Collateral Trustee and each of the Secured Parties
harmless from and against all expense, loss or damage suffered by reason of any
defense, set-off, counterclaim, recoupment or reduction of liability whatsoever
incurred or suffered by the Collateral Trustee or such Secured Party, as the
case may be, arising out of a breach by any BFI Company of any obligation set
forth in this Agreement, or any other Collateral Document and all such
obligations of each BFI Company shall be and remain enforceable against and only
against such BFI Company
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and shall not be enforceable against the Collateral Trustee or any Secured
Party. The provisions of this Section 5.06 shall survive the termination of this
Agreement.
SECTION 5.07. Further Assurances. At any time and from time to
time, upon the written request of the Collateral Trustee, and at the expense of
the BFI Companies, each BFI Company shall promptly execute and deliver any and
all such further instruments and documents and take such further action as
Collateral Trustee reasonably deems necessary or desirable in obtaining the full
benefits of this Agreement.
ARTICLE VI
The Collateral Trustee
SECTION 6.01. Certain Duties. The Collateral Trustee's duties
in respect of the Trust Estate shall include, without limitation, the review of
applications of the BFI Companies or others for consents, waivers, releases or
other matters relating to the Trust Estate or the Collateral and the prosecution
following any Event of Default of any action or proceeding or the taking of any
nonjudicial remedial action as shall be determined to be required pursuant to
the provisions of Sections 2.02 and 2.03. The Collateral Trustee's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with such Collateral in the same manner as it
customarily deals with similar collateral of other parties held by it.
SECTION 6.02. Exculpatory Provisions. (a) The Collateral
Trustee shall not be responsible in any manner whatsoever for the correctness of
any recitals, statements, representations or warranties herein contained, all of
which are made solely by the BFI Companies. The Collateral Trustee makes no
representations as to the value or condition of the Trust Estate or any part
thereof, or as to the title of the BFI Companies thereto or as to the security
afforded by the Collateral Documents or this Agreement or as to the validity,
execution (except its own execution thereof), enforceability, legality or
sufficiency of the Collateral Documents or this Agreement or of the Secured
Obligations, and the Collateral Trustee shall incur no liability or
responsibility with respect to any such matters. The Collateral Trustee shall
not be responsible for insuring the Trust Estate or for the payment of taxes,
charges, assessments or Liens upon the Trust Estate or otherwise as to the
maintenance of the Trust Estate.
(b) The Collateral Trustee shall not be required to ascertain
or inquire as to the performance by AWNA, BFI or any other person of any of the
covenants or agreements contained herein, in any Collateral Document or in any
Debt Instrument. Whenever it is necessary, or in the opinion of the Collateral
Trustee advisable, for the Collateral Trustee to ascertain the amount of Secured
Obligations then held by a Secured Party, the Collateral Trustee may rely on a
certificate of such Secured Party (or, in the case of the AWNA Indenture Debt or
the BFI Indenture Debt, AWNA) as to such amount, and if any Secured Party (or in
the case of the AWNA Indenture Debt or the BFI Indenture Debt, AWNA) shall not
provide such information to the Collateral Trustee, such Secured Party shall not
be entitled to receive payments hereunder (in which case the
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amounts otherwise payable to such Secured Party shall be held in trust for such
Secured Party in the applicable Collateral Account) until such Secured Party has
provided such information to the Collateral Trustee.
(c) The Collateral Trustee shall not be personally liable for
any action taken or omitted to be taken by it in accordance with this Agreement
or any Collateral Document or any Debt Instrument, except for such actions or
omissions that constitute gross negligence or wilful misconduct by the
Collateral Trustee. 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 the
collateral trustee hereunder. With respect to the Loans made by it and all
Secured 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 hereunder, and the terms "Lender"
and "Lenders" shall include the Collateral Trustee in its individual capacity.
SECTION 6.03. Delegation of Duties. The Collateral Trustee may
execute any of the trusts or powers hereof and perform any duty hereunder either
directly or by or through agents or attorneys-in-fact which it shall select with
due care. The Collateral Trustee shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it.
SECTION 6.04. Reliance by Collateral Trustee. (a) Whenever in
the administration of the trusts of this Agreement the Collateral Trustee shall
deem it necessary or advisable that a matter be proved or established in
connection with the taking of any action hereunder by the Collateral Trustee,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively provided or established by a
certificate of an officer of AWNA delivered to the Collateral Trustee, and such
officer's certificate shall be full warranty to Collateral Trustee for any
action taken, suffered or omitted in reliance thereon.
(b) The Collateral Trustee may consult with counsel, and any
opinion of such counsel (which may be in-house counsel for the Collateral
Trustee) shall be full and complete authorization and protection in respect of
any action taken or suffered by it hereunder in accordance therewith. The
Collateral Trustee shall have the right at any time to seek instructions
concerning the administration of the Trust Estate from any court of competent
jurisdiction.
(c) The Collateral Trustee may rely, and shall be fully
protected in acting, upon any resolution, statement, certificate, instrument,
opinion, report, notice, request, consent, order, bond or other paper or
document which it has no reason to believe to be other than genuine and to have
been signed or presented by the proper party or parties or, in the case of
telecopies and telexes, to have been sent by the proper party or parties. The
Collateral Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Trustee and conforming to the requirements
of this Agreement or any Collateral Document.
12
(d) The Collateral Trustee shall not be under any obligation
to exercise any of the rights or powers vested in the Collateral Trustee by this
Agreement unless the Collateral Trustee shall have been provided adequate
security and indemnity against the costs, expenses and liabilities which may be
incurred by it in compliance with such request or direction, including, without
limitation, such reasonable advances as may be requested by the Collateral
Trustee.
SECTION 6.05. Limitations on Duties of Collateral Trustee. The
Collateral Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with the direction of the Required
Lenders or Requisite Secured Parties, as applicable, pursuant to Article II
hereof. Except as herein otherwise expressly provided, the Collateral Trustee
shall not be under any obligation to take any action which is discretionary with
the Collateral Trustee under the provisions hereof except upon the written
request of the Required Lenders or Requisite Secured Parties, as applicable,
pursuant to Article II hereof. The Collateral Trustee shall make available for
inspection and copying by any Secured Party each certificate or other paper
furnished to the Collateral Trustee by AWNA or any BFI Company under or in
respect of this Agreement, any Collateral Document or any portion of the Trust
Estate.
SECTION 6.06. Moneys to be Held in Trust. All moneys received
by the Collateral Trustee under or pursuant to any provision of this Agreement
shall be held in trust for the purposes for which they were paid or are held.
SECTION 6.07. Resignation of the Collateral Trustee. (a) The
Collateral Trustee may at any time, by giving 30 days' prior written notice to
AWNA and the Secured Parties, resign (and shall, immediately upon its
resignation or removal from its capacity as the Agent, resign) and be discharged
of the responsibilities hereby created, such resignation to become effective
upon the earlier of (i) 30 days from the date of such notice and (ii) the
appointment of a successor collateral trustee or collateral trustees by the
Required Lenders. If no successor collateral trustee or collateral trustees
shall be appointed and approved within 30 days from the date of the giving of
the aforesaid notice of resignation, the Collateral Trustee (notwithstanding the
termination of all of its other duties and obligations hereunder by reason of
such resignation) shall, or any Secured Party or AWNA may, apply to any court of
competent jurisdiction to appoint a successor collateral trustee or collateral
trustees (which may be an individual or individuals) to act until such time, if
any, as a successor collateral trustee or collateral trustees shall have been
appointed as above provided. Any successor collateral trustee or collateral
trustees so appointed by such court shall immediately and without further act be
superseded by any successor collateral trustee or collateral trustees approved
by the Required Lenders as above provided.
(b) If at any time the Collateral Trustee shall resign or
otherwise become incapable of acting, or if at any time a vacancy shall occur in
the office of Collateral Trustee for any other cause, a successor collateral
trustee or collateral trustees may be appointed by the Required Lenders, and the
powers, duties, authority and title of the predecessor collateral trustee or
collateral trustees terminated and canceled without procuring the resignation of
such predecessor collateral trustee or collateral trustees, and
13
without any other formality (except as may be required by applicable law) other
than appointment and designation of a successor collateral trustee or collateral
trustees in writing, duly acknowledged, delivered to the predecessor collateral
trustee or collateral trustees, and filed for record in each public office, if
any, in which this Agreement is required to be filed.
(c) The appointment and designation referred to in Section
6.07(b) shall, after any required filing, be full evidence of the right and
authority to make the same and of all the facts therein recited, and this
Agreement shall vest in such successor collateral trustee or collateral
trustees, without any further act, deed or conveyance, all of the estate and
title of its predecessor or their predecessors, and upon such filing for record
the successor collateral trustee or collateral trustees shall become fully
vested with all the estates, properties, rights, powers, trusts, duties,
authority and title of its predecessor or their predecessors; but such
predecessor or predecessors shall, nevertheless, on the written request of the
Required Lenders, BFI or its or their successor collateral trustee or collateral
trustees, execute and deliver an instrument transferring to such successor or
successors all the estates, properties, rights, powers, trusts, duties,
authority and title of such predecessor or predecessors hereunder and shall
deliver all securities and moneys held by it or them to such successor
collateral trustee or collateral trustees.
(d) Any required filing for record of the instrument
appointing a successor collateral trustees as hereinabove provided shall be at
the expense of AWNA.
SECTION 6.08. Status of Successors to Collateral Trustee.
Except as permitted by Section 6.07, every successor to the Collateral Trustee
appointed pursuant to Section 6.07 shall be a bank or trust company in good
standing and having power so to act, incorporated under the laws of the United
States or any State thereof or the District of Columbia, and having its
principal corporate trust office within the forty-eight contiguous States, and
shall also have capital, surplus and undivided profits of not less than
$500,000,000.
SECTION 6.09. Merger of Collateral Trustee. Any Company into
which the Collateral Trustee may be merged, or with which it may be
consolidated, or any Company resulting from any merger or consolidation to which
Collateral Trustee shall be a party, shall be Collateral Trustee under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto.
SECTION 6.10. Appointment of Additional and Separate
Collateral Trustee. Whenever (i) the Collateral Trustee shall deem it necessary
or prudent in order to conform to any law of any jurisdiction in which all or
any part of the Collateral shall be situated or to make any claim or bring any
suit with respect to or in connection with the Collateral, or (ii) the
Collateral Trustee shall be advised by counsel satisfactory to it that it is so
necessary or prudent in the interest of the Secured Parties, then in any such
case, the Collateral Trustee shall execute and deliver from time to time all
instruments and agreements necessary or proper to constitute another bank or
trust company or one or more persons approved by the Collateral Trustee either
to act as additional trustee or trustees of all or any part of the Trust Estate,
jointly with the Collateral Trustee, or to act
14
as separate trustee or trustees of all or any part of the Trust Estate, in any
such case with such powers as may be provided in such instruments or agreements,
and to vest in such bank, trust company or person as such additional trustee or
separate trustee, as the case may be, any property, title, right or power of the
Collateral Trustee deemed necessary or advisable by the Collateral Trustee. Each
of the BFI Companies hereby consents to all actions taken by the Collateral
Trustee under the foregoing provisions of this Section 6.10.
ARTICLE VII
Release of Trust Estate and Collateral;
Expiration of Certain Rights
SECTION 7.01. Release of Trust Estate; Expiration of Rights of
Certain Secured Parties. Notwithstanding any contrary provision herein, the
Trust Estate shall be assigned and released to (i) the Agent for the benefit of
the Lenders and the other holders of Credit Agreement Obligations (and such
release confirmed in a written instrument signed by the Collateral Trustee in
form satisfactory to the Required Lenders) on the earlier of the date (a) on
which all the AWNA Indenture Debt and the BFI Indenture Debt shall have been
paid to the holders thereof or (b) that is ten days after the provisions of the
AWNA Senior Note Indenture, the BFI Indenture and the 2001 Indentures that
require equal and ratable security shall be held by a court of competent
jurisdiction to be invalid, void or unenforceable, or (ii) the BFI Companies on
the date on which all the Credit Agreement Obligations have been indefeasibly
paid in full, the Commitments have expired or been terminated, the LC Exposure
has been reduced to zero, the Issuing Banks have no further commitment to issue
Letters of Credit under the Credit Agreement, the Agent has given written notice
thereof to the Collateral Trustee and all the Collateral Trustee's Fees have
been indefeasibly paid in full.
SECTION 7.02. Releases of Collateral. At any time during which
no Triggering Event has occurred and is continuing, the Lien of any Collateral
Document may, at any time, be released in whole or in part by the Collateral
Trustee pursuant to written directions signed by the Required Lenders or by the
Agent (including, without limitation, to permit any sale or disposition thereof
or the redesignation of any Restricted Subsidiary as an Unrestricted Subsidiary
as requested by AWNA or any BFI Company in accordance with the terms of the
Credit Agreement). No such release shall require any consent or approval by any
other Secured Party.
SECTION 7.03. Amendment of Collateral Documents. At any time
during which no Triggering Event has occurred and is continuing, the Required
Lenders shall have the exclusive authority to direct the Collateral Trustee to
amend any provision of any Collateral Document, without any consent or approval
of, or prior notice to, any other Secured Party.
ARTICLE VIII
Miscellaneous
15
SECTION 8.01. Equal and Ratable Security. This Agreement is
intended solely to comply with the provisions of the AWNA Senior Note Indenture,
BFI Indenture and the 2001 Indentures to secure with the Collateral the unpaid
principal of, premium, if any, and accrued interest on the AWNA Indenture Debt
and the BFI Indenture Debt, equally and ratably with the Credit Agreement
Obligations. To the extent that the rights and benefits herein conferred on the
holders of the AWNA Indenture Debt or the BFI Indenture Debt or the AWNA
Trustee, the BFI Trustee or any 2001 Indenture Trustee shall be held to exceed
the rights and benefits required so to be conferred by such provisions, such
rights and benefits shall be limited so as to provide to such holders and such
Trustees only those rights and benefits that are required by such provisions.
Any and all rights not herein expressly given to the AWNA Trustee, the BFI
Trustee or any 2001 Indenture Trustee are expressly reserved to the Agent and
the Lenders, it being understood that in the absence of a requirement to provide
equal and ratable security set forth in the AWNA Senior Note Indenture, the BFI
Indenture and the 2001 Indentures, this Agreement would not have been accepted
by the Agent or the Lenders.
SECTION 8.02. Amendments, Supplements and Waivers. With the
written consent of the Required Lenders, the Collateral Trustee, AWNA and the
BFI Companies may from time to time amend, supplement or waive any provision
hereof; provided, however, that, after the occurrence and during the continuance
of an Event of Default and the acceleration of the principal amount of all the
Secured Obligations (to the extent capable of being accelerated) due under the
Credit Agreement, the BFI Indenture, the AWNA Senior Note Indenture or any 2001
Indenture, no such amendment, supplement or waiver shall without the written
consent of the AWNA Trustee, the BFI Trustee or the 2001 Indenture Trustee, as
the case may be, adversely affect the rights of the holders of the AWNA
Indenture Debt or the BFI Indenture Debt, as applicable, to equal and ratable
security to the extent and for the periods contemplated by this Agreement. Any
such amendment, supplement or waiver shall be binding upon the Secured Parties
and their respective successors and assigns.
SECTION 8.03. Notices. All notices, requests, demands and
other communications provided for or permitted hereunder shall be in writing
(including telecopy communications) and shall be sent by telecopier, nationally
recognized overnight courier or hand delivery:
(i) If to AWNA or any BFI Company, to AWNA, at its address at:
00000 X. Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx, 00000,
Office of the Treasurer, Attention of Treasurer (Telecopy No. (602)
627-2703), with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxx, Esq.
(Telecopy No. (000) 000-0000), or at such other address as shall be
designated by it in a written notice to the Collateral Trustee.
(ii) If to the Collateral Trustee, to: JPMorgan Chase Bank,
Loan and Agency Services Group, 0000 Xxxxxx, Xxxxx 00, Xxxxxxx, XX
00000, Attention of Xxxx X. Xxxxxx (Telecopy No. (212) (000) 000-0000),
with a copy to JPMorgan
16
Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxx
Xxxxx (Telecopy No. (000) 000-0000);
(iii) If to the AWNA Trustee, to it at such address as shall
be designated by it in a written notice to BFI and the Collateral
Trustee.
(iv) If to the BFI Trustee, to it at such address as shall be
designated by it in a written notice to BFI and the Collateral Trustee.
(v) If to any 2001 Indenture Trustee, to it at such address as
shall be designated by it in a written notice to BFI and the Collateral
Trustee.
(vi) If to the Agent, to: JPMorgan Chase Bank, Loan and Agency
Services Group, 0000 Xxxxxx, Xxxxx 00, Xxxxxxx, XX 00000, Attention of
Xxxx X. Xxxxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan
Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxx
Xxxxx (Telecopy No. (000) 000-0000), or at such other address as shall
be designated by it in a written notice to BFI and the Collateral
Trustee.
All such notices, requests, demands and communications shall be deemed to have
been duly given or made when received.
SECTION 8.04. Headings. Article and Section headings used in
this Agreement are for the purpose 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 8.05. Severability. 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 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 8.06. Dealings with the BFI Companies. Upon any
application or demand by AWNA or any BFI Company to the Collateral Trustee to
take or permit any action under any of the provisions of this Agreement or under
any Collateral Document, AWNA or such BFI Company, as appropriate, shall furnish
to the Collateral Trustee a certificate of an appropriate officer stating that
all conditions precedent, if any, provided for in this Agreement or such
Collateral Document, as the case may be, relating to the proposed action have
been complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Agreement or any Collateral Document relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
17
SECTION 8.07. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and shall inure to
the benefit of the Secured Parties and their respective successors and assigns,
and nothing herein or in any Collateral Document is intended or shall be
construed to give any other person any right, remedy or claim under, to or in
respect of this Agreement, the Collateral or the Trust Estate.
SECTION 8.08. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW.
SECTION 8.09. Counterparts. This Agreement may be executed in
separate counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same instrument.
SECTION 8.10. Consent to Jurisdiction and Service of Process.
AWNA and each BFI Company 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 Collateral 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 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 or any other Collateral Document or Loan
Document against AWNA or any BFI Company or its properties in the courts of any
jurisdiction.
(b) AWNA and each BFI Company 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 Collateral Document or 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 8.03. Nothing
in this Agreement or any other Collateral Document or Loan Document will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.
18
SECTION 8.11. 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 LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY OTHER
COLLATERAL DOCUMENT OR LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 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 8.12. Additional BFI Companies. Pursuant to Section
5.10 of the Credit Agreement, each Specified Subsidiary that is a subsidiary of
BFI and that was not in existence or not a Specified Subsidiary on the date of
the Credit Agreement is required to enter into this Agreement upon becoming a
Specified Subsidiary if such Subsidiary owns or possesses property of a type
that would be considered Collateral. Upon execution and delivery by the
Collateral Trustee and a Subsidiary of an instrument in the form of Annex 1,
such Subsidiary shall become a BFI Company hereunder with the same force and
effect as if originally named as a BFI Company herein. The execution and
delivery of such instrument shall not require the consent of any other party
hereunder. The rights and obligations of each BFI Company hereunder shall remain
in full force and effect notwithstanding the addition of any new Subsidiary BFI
Company as a party to this Agreement.
19
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 BFI COMPANIES LISTED ON
SCHEDULE I HERETO,
by
_______________________________
Name:
Title: Authorized Officer
JPMORGAN CHASE BANK, as Collateral
Trustee,
by
_______________________________
Name:
Title:
Schedule I to the Collateral
Trust Agreement
BFI COMPANIES
Name
Annex 1 to the
Collateral Trust Agreement
SUPPLEMENT NO. , dated as of [____] (this
"Supplement"), to the COLLATERAL TRUST 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 "Collateral Trust Agreement"), among Allied Waste
North America, Inc. ("AWNA"), certain subsidiaries of AWNA
(each, a "BFI Company") 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 Collateral Trust Agreement).
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. ("Allied Waste"), the lenders from time to time
party thereto (the "Lenders"), and JPMCB, as Administrative Agent and Collateral
Agent (in such capacities, the "Agent").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Collateral Trust Agreement or,
if not defined in the Collateral Trust Agreement, in the Credit Agreement.
C. The BFI Companies have entered into the Collateral Trust Agreement
in order to induce the Lenders to make extensions of credit under the Credit
Agreement. Pursuant to Section 5.10 of the Credit Agreement, each Subsidiary of
Xxxxxxxx-Xxxxxx Industries, Inc. ("BFI") that is a Specified Subsidiary and that
was not in existence or not a Specified Subsidiary on the date of the Credit
Agreement is required to enter into the Collateral Trust Agreement as a BFI
Subsidiary upon becoming a Specified Subsidiary if such Subsidiary owns or
possesses property of a type that would be considered Collateral under the
Collateral Trust Agreement. Section 8.12 of the Collateral Trust Agreement
provides that such Subsidiaries may become party to the Collateral Trust
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "New BFI Company") is executing this
Supplement in accordance with the requirements of the Credit Agreement in order
to induce the Lenders to make additional extensions of credit thereunder and as
consideration for extensions of credit previously made.
Accordingly, the Collateral Trustee and the New BFI Company
agree as follows:
SECTION 1. In accordance with Section 8.12 of the Collateral Trust
Agreement, the New BFI Company by its signature below becomes a BFI Company
under the Collateral Trust Agreement with the same force and effect as if
originally named therein as a BFI Company and the New BFI Company hereby agrees
to all the terms and provisions of the Collateral Trust Agreement applicable to
it as a BFI Company thereunder. Each reference to "BFI Subsidiary" or "BFI
Company" in the Collateral
2
Trust Agreement or this Supplement shall be deemed, if applicable, to include
the New BFI Company. The Collateral Trust Agreement is hereby incorporated
herein by reference.
SECTION 2. The New BFI Company 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 BFI Company 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. Except as expressly supplemented hereby, the Collateral
Trust Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. 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 Collateral Trust 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 7. All communications and notices hereunder shall be in writing
and given as provided in Section 8.03 of the Collateral Trust Agreement. All
communications and notices hereunder to the New BFI Company shall be given to it
in care of AWNA as specified in the Collateral Trust Agreement.
SECTION 8. The New BFI Company 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.
3
IN WITNESS WHEREOF, the New BFI Company and the Collateral
Trustee have duly executed this Supplement to the Collateral Trust Agreement as
of the day and year first above written.
[Name of New BFI Company],
by
________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Collateral
Trustee,
by
________________________________
Name:
Title:
