EXHIBIT 10.11
EXECUTION COPY
NON-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 (the "Borrower"), ALLIED WASTE
INDUSTRIES, INC., a Delaware corporation ("Allied
Waste"), each Subsidiary listed on Schedule I hereto
(each such Subsidiary individually, a "Subsidiary
Pledgor", and collectively, the "Subsidiary
Pledgors"; the Borrower, Allied Waste and the
Subsidiary Pledgors are referred to collectively
herein as the "Pledgors") and JPMORGAN CHASE BANK, a
New York banking corporation ("JPMCB"), as collateral
agent (in such capacity, the "Collateral Agent") for
the Secured Parties (as defined in the Credit
Agreement referred to 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 the
Borrower, Allied Waste, the lenders from time to time party thereto (the
"Lenders") and JPMCB, as administrative agent and collateral agent for the
Lenders, (b) the Parent 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 "Parent Guarantee Agreement"), between Allied
Waste and the Collateral Agent and (c) 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", and together with the Parent Guarantee Agreement, the "Guarantee
Agreements"), among the Subsidiary Pledgors, certain other Subsidiaries and the
Collateral Agent. Reference is also made to the Non-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 Non-Shared Collateral Pledge Agreement") among the Subsidiaries listed
on Schedule I thereto and the Subsidiaries that became a party thereto as
provided in Section 24 thereof (collectively, the "Original Pledgors") and the
Collateral Agent, pursuant to which the Original Pledgors agreed to pledge as
security for the Obligations (as defined in the Original Pledge Agreement) the
assets of the Original Pledgors described therein. The Original Pledgors and the
Collateral Agent now wish to amend and restate the Original Non-Shared
Collateral 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 Non-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 Non-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 the Borrower and the Issuing
Banks have agreed to issue Letters of Credit for the account of the Borrower
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Allied Waste and the Subsidiary Pledgors have agreed to
guarantee, among other things, all the obligations of the Borrower to the
Lenders under the Credit Agreement. The obligations of the Lenders to make Loans
and of the Issuing Banks to issue Letters of Credit are conditioned upon, among
other things, the execution and delivery by the Pledgors of a Non-Shared
Collateral Pledge Agreement in the form hereof to secure (a) the due and
punctual payment by the Borrower 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 the Borrower 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 the Borrower to the Secured Parties under the
Credit Agreement and the other Loan Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Borrower 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 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 (all the monetary and other obligations referred to
in the preceding clauses (a) through (d) being referred to collectively herein
as the "Obligations". Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their successors and assigns), hereby agree
as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Pledgor hereby transfers, grants,
bargains, sells, conveys, hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its
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successors and assigns, and hereby grants to the Collateral Agent, its
successors and assigns, for the ratable benefit of the Secured Parties, a
security interest in all of such 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 the Borrower, any
Subsidiary or any other Person now owned or obtained in the future by such
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 Pledgor
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 such name
of such 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 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 Agent pursuant to the terms hereof; (d) subject to Section 5, 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 5, all rights and
privileges of such 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 Agent, (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 Agent and by
such other instruments and documents as the Collateral Agent 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
Pledgor and such other instruments or documents as the Collateral Agent 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, as between the Pledgors and the Collateral Agent,
the failure to attached 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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Agent, 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 2. Delivery of the Collateral. (a) Each Pledgor agrees to
deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the 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 party hereto agrees
that it will not, and will cause any other Subsidiary not party hereto not to,
evidence any Indebtedness for borrowed money incurred owed to it by Allied
Waste, AWNA or any other Subsidiary to be evidenced by a promissory note or
other document or certificate unless such promissory note, document or
certificate is pledged and delivered to the Collateral Trustee pursuant to the
terms hereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Collateral Agent, 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 with respect thereto 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 Pledgor, AWNA, Allied Waste or any other Subsidiary Loan Party is
and will at all times be the direct owner, beneficially and of record,
of the Pledged Securities indicated on Schedule II hereto and (ii) such
Pledgor, AWNA, Allied Waste or such other Subsidiary Loan Party holds
the same free and clear of all Liens other than Permitted Encumbrances;
(c) (i) except for the security interest granted hereunder,
such Pledgor will make no assignment, pledge, hypothecation or transfer
of, or create or permit to exist any security interest in or other Lien
on, the Collateral, other than pursuant
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hereto or Permitted Encumbrances, and (ii) such Pledgor will, subject
to Section 5, cause any and all Collateral, whether for value paid by
the Pledgor or otherwise, to be forthwith deposited with the Collateral
Agent and pledged hereunder;
(d) such 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 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 Pledgors of
this Agreement, when the Pledged Securities, certificates or other
documents representing or evidencing the Collateral are delivered to
the Collateral Agent in accordance with this Agreement, the Collateral
Agent will obtain a valid and perfected first priority Lien upon and
security interest (subject to any Permitted Encumbrances) in 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 Agent, for the benefit of the Secured Parties, the rights of
the Collateral Agent 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.
SECTION 4. Registration in Nominee Name; Denominations. The Collateral
Agent, 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
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nominee (as pledgee or as sub-agent) or the name of the applicable Pledgor,
endorsed or assigned in blank or in favor of the Collateral Agent. Each Pledgor
will promptly give to the Collateral Agent copies of any notices or other
communications received by it with respect to Pledged Securities registered in
the name of such Pledgor. The Collateral Agent 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 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each 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 Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each Pledgor, all
such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such 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 Pledgor shall be entitled to receive and retain any
and all cash dividends, interest and principal paid on the Pledged
Securities to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid
in accordance with, the terms and conditions of the Credit Agreement,
the other Loan Documents and applicable laws and subject to any
requirements of the Credit Agreement 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 Pledgor, shall not be commingled by
such 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 Agent and shall be forthwith delivered to the Collateral
Agent in the same form as so received (with any necessary endorsement).
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(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, 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 Pledgor contrary to the provisions of this Section 5
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
delivered to the Collateral Agent 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 Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property
and shall be applied in accordance with the provisions of Section 7. After all
Events of Default have been cured or waived and the Borrower has delivered to
the Collateral Agent certificates to that effect, the Collateral Agent shall,
within five Business Days after all such Events of Default have been cured or
waived, repay to each Pledgor all cash dividends, interest or principal (without
interest) that such Pledgor would otherwise be permitted to retain pursuant to
the terms of paragraph (a)(iii) above and which remain in such account after
application accordance with Section 7.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 5, and the obligations of the Collateral Agent under paragraph (a)(ii)
of this Section 5, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to exercise such voting and consensual rights and powers; provided
that, unless otherwise directed by the Required Lenders, the Collateral Agent
shall have the right from time to time following and during the continuance of
an Event of Default to permit the Pledgors to exercise such rights. After all
Events of Default have been cured or waived, such 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 6. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Collateral Agent 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 Agent shall deem appropriate. The Collateral
Agent shall be authorized at any such sale (if it deems it advisable to do so)
to restrict the prospective bidders or purchasers to 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 Agent 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 Pledgor, and, to
the extent permitted by applicable law, the Pledgors hereby waive all rights of
redemption, stay, valuation and appraisal any
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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 Agent shall give the Borrower and each applicable
Pledgor 10 days' prior written notice (which each Pledgor agrees is reasonable
notice within the meaning of Section 9-611 of the UCC or its equivalent in other
jurisdictions) of the Collateral Agent's intention to make any sale of such
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 Agent 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 Agent may (in
its sole and absolute discretion) determine. The Collateral Agent 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 Agent 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 Agent until the sale price is paid in full by the purchaser or
purchasers thereof, but the Collateral Agent 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 6, any Secured Party may bid
for or purchase, free from any right of redemption, stay or appraisal on the
part of any 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 Pledgor as a
credit against the purchase price, and it may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to such 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 Agent shall be free to carry out such sale pursuant
to such agreement and (c) such Pledgor shall not be entitled to the return of
the Collateral or any portion thereof subject thereto, notwithstanding the fact
that after the Collateral Agent shall have entered into such an agreement all
applicable Events of Default shall have been remedied and the Obligations paid
in full. As an alternative to exercising the power of sale herein conferred upon
it, the Collateral Agent 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 6 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.
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SECTION 7. Application of Proceeds of Sale. The proceeds of any sale or
other transfer or disposition of Collateral pursuant to Section 6, as well as
any Collateral consisting of cash, shall be applied by the Collateral Agent as
follows:
FIRST, to the payment of all costs and expenses incurred by
the Administrative Agent or the Collateral Agent in connection with
such sale or other transfer or disposition or otherwise in connection
with this Agreement (including the collection of amounts permitted
under Section 5(a)(iii)), any other Loan Document or any of the
Obligations, including all court costs and the reasonable fees and
expenses of its agents and legal counsel, the repayment of all advances
made by the Collateral Agent hereunder or under any other Loan Document
on behalf of any 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 Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date
of any such distribution); and
THIRD, to the Pledgors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent 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 Agent (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 Agent 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 Agent or such officer or be answerable in any way
for the misapplication thereof.
SECTION 8. Reimbursement of Collateral Agent. (a) Each Pledgor jointly
and severally agrees to pay upon demand to the Collateral Agent 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 and
special counsel as may be reasonably necessary in connection therewith and of
any experts or agents, that the Collateral Agent 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 Agent hereunder or (iv) the failure by such Pledgor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Pledgor agrees to jointly and severally indemnify the
Collateral Agent and the other Indemnitees (as defined in Section 9.03(b) of the
Credit Agreement)
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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 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 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 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 8 shall remain operative and in full force and effect regardless
of the termination of this Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby or thereby, the repayment
of any of the Obligations, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document or any investigation made
by or on behalf of the Collateral Agent or any other Secured Party. All amounts
due under this Section 8 shall be payable on written demand therefor and shall
bear interest at the rate specified in Section 2.13 of the Credit Agreement.
SECTION 9. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest; provided that the Collateral Agent shall have such
right, only upon the occurrence and during the continuance of an Event of
Default, which right shall include the full power of substitution either in the
Collateral Agent's name or in the name of such 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 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 Agent to make any commitment or inquiry as to the
nature or sufficiency of any payment received by the Collateral Agent, 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
11
any property covered thereby. The Collateral Agent 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 Pledgor for
any act or failure to act hereunder, except to the extent determined by a court
of competent jurisdiction by final and non-appendable judgment to have resulted
from their own gross negligence or wilful misconduct.
SECTION 10. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent, the Administrative Agent, any Issuing Bank or any Lender in
exercising any power or right hereunder or under any other Loan Document 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
Agent hereunder and of the other Secured Parties under the other Loan Documents
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 or consent to any departure by any 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 Pledgor or any other Loan Party in any
case shall entitle such 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 Agent and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with Section 9.02 of the Credit Agreement.
SECTION 11. Securities Act, etc. In view of the position of the
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 Pledgor understands that compliance with the Federal Securities
Laws might very strictly limit the course of conduct of the Collateral Agent if
the Collateral Agent 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 Agent 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 Pledgor recognizes that in light of
such restrictions and limitations the Collateral Agent may, with respect to any
sale of the Pledged Securities, limit the purchasers to those who will agree,
12
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
Pledgor acknowledges and agrees that in light of such restrictions and
limitations, the Collateral Agent, 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 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 Agent shall incur no responsibility
or liability for selling all or any part of the Pledged Securities at a price
that the Collateral Agent, 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 11 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 Agent sells.
SECTION 12. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent 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 Agent, 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 Agent to permit the public sale of such Pledged
Securities. Each Pledgor further agrees to indemnify, defend and hold harmless
the Collateral Agent, each other Secured Party, any underwriter and their
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 Agent 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 that is furnished in writing to such Pledgor or
the issuer of such Pledged Securities by the Collateral Agent or any other
Secured Party expressly for use therein. Each 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 Agent and keep
effective, or cause to be kept effective, all such qualifications, filings or
registrations. Each Pledgor will bear all costs and expenses of carrying out its
obligations under this Section 12. Each Pledgor acknowledges that there is no
adequate remedy at law for failure by it to comply with the provisions of this
Section 12 and that
13
such failure would not be adequately compensable in damages, and therefore
agrees that its agreements contained in this Section 12 may be specifically
enforced.
SECTION 13. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, 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, 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 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 14. Termination or Release. This Agreement and the security
interests granted hereby shall terminate when all the monetary Obligations have
been indefeasibly paid in full, the Lenders have no further commitment to lend,
the LC Exposure has been reduced to zero and the Issuing Banks have no further
commitment to issue Letters of Credit under the Credit Agreement, at which time
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. Any execution and delivery of such documents pursuant to this
Section 14 shall be without recourse to or warranty by the Collateral Agent and
shall, upon the reasonable prior request of the Pledgors, be made prior to such
termination for holding in escrow pending such termination. A Pledgor shall
automatically be released from its obligations hereunder and the pledge of the
Collateral of such Pledgor hereunder shall be automatically released in the
event that all the Equity Interests of such 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. 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 15. 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
14
care of the Borrower. 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.
SECTION 16. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent 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 Agent its rights and remedies
hereunder.
SECTION 17. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, 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 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 Pledgors and the Collateral Agent
and their successors and assigns, and shall inure to the benefit of each
Pledgor, the Collateral Agent and the other Secured Parties, and their
successors and assigns, except that no 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. If all of the Collateral of a Pledgor is
sold, transferred or otherwise disposed of to a Person that is not an Affiliate
of the Borrower pursuant to a transaction permitted by Section 6.06 of the
Credit Agreement, such Pledgor shall be released from its obligations under this
Agreement without further action. This Agreement shall be construed as a
separate agreement with respect to each Pledgor and may be amended, modified,
supplemented, waived or released with respect to any Pledgor without the
approval of any other Pledgor and without affecting the obligations of any other
Pledgor hereunder.
SECTION 18. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein, 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 Agent
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 as long as the principal of or any accrued
interest on any Loan or any other fee or amount payable under this Agreement or
any other Loan Document with respect to the Loans is outstanding and unpaid or
the LC Exposure does not equal zero and as long as the Commitments and the LC
Commitments have not expired or been terminated.
(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
15
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 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 20. 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 17), and
shall become effective as provided in Section 17. 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 21. 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 22. Jurisdiction; Consent to Service of Process. (a) Each
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 Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against any Pledgor or its properties in the courts of any jurisdiction.
(b) Each 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
16
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 15. 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 23. 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 LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. 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 24. Additional Pledgors. Pursuant to Section 5.10(b) of the
Credit Agreement, each Specified Subsidiary (other than a subsidiary of BFI)
that was not in existence or not a Specified Subsidiary on the Restatement
Effective Date is required to enter in this Agreement as a Subsidiary Pledgor
upon becoming a Specified Subsidiary if such Specified Subsidiary owns or
possesses property of a type that would be considered Collateral hereunder. Upon
execution and delivery by the Collateral Agent and a Specified Subsidiary of an
instrument in the form of Annex 1 hereto, such Specified 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 Pledgor hereunder. The rights
and obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Pledgor as a party to this
Agreement.
[Space Intentionally Left Blank]
17
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:
ALLIED WASTE INDUSTRIES,
INC.,
by
______________________
Name:
Title:
THE SUBSIDIARY PLEDGORS
LISTED ON SCHEDULE I HERETO,
by
______________________
Name:
Title:
JPMORGAN CHASE BANK, as
Collateral Agent,
by
______________________
Name:
Title:
Schedule I to the
Non-Shared Collateral Pledge Agreement
SUBSIDIARY PLEDGORS
Name Address
Schedule II to the
Non-Shared Collateral Pledge Agreement
CAPITAL STOCK
Number and
Class of
Number of Registered -------- Percentage of
Issuer Certificate Owner Shares Shares
------ ----------- ----- ------ ------
OTHER EQUITY INTERESTS
Number and
Class of
Number of Registered -------- Percentage of
Issuer Certificate Owner Interests Interests
------ ----------- ----- --------- --------
DEBT OBLIGATIONS
Principal
Issuer Amount Date Maturity Date
------ ------ ---- -------------
Annex 1 to the
Non-Shared Collateral Pledge Agreement
SUPPLEMENT NO. dated as of (this
"Supplement"), to the NON-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 "Non-Shared Collateral Pledge Agreement") among
Allied Waste North America, Inc., a Delaware
corporation (the "Borrower"), Allied Waste
Industries, Inc., a Delaware corporation ("Allied
Waste"), each Subsidiary listed on Schedule I thereto
and each Subsidiary becoming a party thereto as
provided in Section 24 thereof (each such Subsidiary
individually, a "Subsidiary Pledgor", and
collectively, the "Subsidiary Pledgors"; the
Borrower, Allied Waste and Subsidiary Pledgors are
referred to collectively herein as the "Pledgors")
and JPMORGAN CHASE BANK, a New York banking
corporation ("JPMCB"), as collateral agent (in such
capacity, the "Collateral Agent") for the Secured
Parties (as defined in the Credit 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 the
Borrower, Allied Waste, the lenders from time to time party thereto (the
"Lenders"), and JPMCB, as administrative agent and collateral agent for the
Lenders, (b) the Parent 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 "Parent Guarantee Agreement"), between Allied
Waste and the Collateral Agent and (c) 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", and together with the Parent Guarantee Agreement, the "Guarantee
Agreements"), among the Subsidiary Pledgors, certain other Subsidiaries and the
Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
C. The Pledgors have entered into the Non-Shared Collateral Pledge
Agreement in order to induce the Lenders to make Loans and the Issuing Banks to
issue Letters of Credit. Pursuant to Section 5.10(b) of the Credit Agreement,
each Specified Subsidiary (other than a subsidiary of BFI) that was not in
existence or not a Specified Subsidiary on the Restatement Effective Date is
required to enter into the Non-Shared Collateral Pledge Agreement as a
Subsidiary Pledgor upon becoming a Specified Subsidiary if such Specified
Subsidiary owns or possesses property of a type that would be considered
Collateral under the Non-Shared Collateral Pledge Agreement. Section 24 of the
Non-Shared Collateral Pledge Agreement provides that such Specified Subsidiaries
shall become Subsidiary Pledgors under the Non-Shared Collateral Pledge
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "New Pledgor") is executing this
Supplement in accordance with the
2
requirements of the Credit Agreement to become a Subsidiary Pledgor under the
Non-Shared Collateral Pledge Agreement in order to induce the Lenders to make
additional Loans and the Issuing Banks to issue additional Letters of Credit and
as consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 24 of the Non-Shared Collateral
Pledge Agreement, the New Pledgor by its signature below becomes a Pledgor under
the Non-Shared Collateral Pledge Agreement with the same force and effect as if
originally named therein as a Pledgor and the New Pledgor hereby agrees (a) to
all the terms and provisions of the Non-Shared Collateral Pledge Agreement
applicable to it as a Pledgor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Pledgor thereunder are true
and correct in all material respects on and as of the date hereof. In
furtherance of the foregoing, the New Pledgor, as security for the payment and
performance in full of the Obligations (as defined in the Non-Shared Collateral
Pledge Agreement), does hereby create and grant to the Collateral Agent, 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 Pledgor's right,
title and interest in and to the Collateral (as defined in the Non-Shared
Collateral Pledge Agreement) of the New Pledgor. Each reference to "Subsidiary
Pledgor" or "Pledgor" in the Non-Shared Collateral Pledge Agreement shall be
deemed, if applicable, to include the New Pledgor. The Non-Shared Collateral
Pledge Agreement is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent 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 Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Pledgor and the Collateral Agent.
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 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 Non-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.
3
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 Non-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 notices hereunder to the New Pledgor shall be given to it in
care of the Borrower.
SECTION 9. The New Pledgor agrees to reimburse or cause to be
reimbursed the Collateral Agent 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 Agent.
4
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Non-Shared Collateral Pledge Agreement as of the
day and year first above written.
[Name of New Pledgor],
by
_____________________________
Name:
Title:
Address:
JPMORGAN CHASE BANK, as Collateral
Agent,
by
_____________________________
Name:
Title:
Schedule I to
Supplement No. 1
To the Non-Shared Collateral Pledge Agreement
Pledged Securities of the New Pledgor
CAPITAL STOCK
Number and
Class of
Number of Registered -------- Percentage of
Issuer Certificate Owner Shares Shares
------ ----------- ----- ------ ------
OTHER EQUITY INTERESTS
Number and
Class of
Number of Registered -------- Percentage of
Issuer Certificate Owner Interests Interests
------ ----------- ----- --------- --------
DEBT OBLIGATIONS
Principal
Issuer Amount Date Maturity Date
------ ------ ---- -------------
