EXHIBIT 4.6
SHARED COLLATERAL PLEDGE AGREEMENT dated as
of July 30, 1999 among ALLIED WASTE NORTH
AMERICA, INC., a Delaware corporation
("AWNA"), each Subsidiary of AWNA listed on
Schedule I hereto (each such Subsidiary
individually a "Subsidiary Pledgor" and,
collectively, the "Subsidiary Pledgors") and
THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as collateral trustee
(in such capacity, the "Collateral Trustee")
for the Secured Parties (as defined below).
Reference is made to (a) the Credit Agreement dated as of July 21, 1999
(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 Chase, as
administrative agent and collateral agent for the Lenders (in such capacity, the
"Agent"), (b) the Subsidiary Guarantee Agreement dated as of July 30, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Subsidiary
Guarantee Agreement"), among the Subsidiary Pledgors, certain other Subsidiaries
of Allied Waste and the Agent, (c) the Restated Indenture dated as of September
1, 1991 (as supplemented and amended from time to time, the "BFI Indenture")
between Xxxxxxxx-Xxxxxx Industries, Inc. ("BFI") and 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"), and (d) the Indenture dated as
of December 23, 1998 (as supplemented and amended from time to time, the "AWNA
Indenture") among AWNA, Allied Waste and U.S. Bank Trust National Association,
as trustee (together with any successor in such capacity, the "AWNA Trustee").
The Senior Lenders have agreed to make Senior Loans to AWNA, and the
Issuing Banks have agreed to issue Letters of Credit for the account of AWNA,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Subsidiary Pledgors has agreed to guarantee, among
other things, all the obligations of AWNA to the Senior Lenders under the Credit
Agreement pursuant to the Subsidiary Guarantee Agreement to secure the Credit
Agreement Senior Obligations (as hereinafter defined).
Pursuant to the provisions of the BFI Indenture, BFI may not, and may
not permit any subsidiary of BFI (if such subsidiary constitutes a Restricted
Subsidiary (as defined in the BFI Indenture)), to secure the Credit Agreement
Senior Obligations without providing that the BFI Indenture Debt (as hereinafter
defined) be secured equally and ratably with such obligations.
Pursuant to the provisions of the AWNA Indenture, AWNA may not, and may
not permit any subsidiary of AWNA, including the Subsidiary Pledgors (if such
subsidiary constitutes a Restricted Subsidiary, as defined in the AWNA
Indenture) to secure the BFI Indenture Debt without providing that the AWNA
Indenture Debt (as hereinafter defined) be secured equally and ratably with the
BFI Indenture Debt.
It is a condition precedent to the Senior Lenders' obligations to make
Senior Loans and other extensions of credit under the Credit Agreement that the
Subsidiary Pledgors shall have executed and delivered this Agreement and the
Collateral Trust Agreement dated the date hereof (as amended or otherwise
modified from time to time, the "Collateral Trust Agreement") among the
Subsidiary Pledgors and the Collateral Trustee.
Accordingly, the Subsidiary Pledgors and the Collateral Trustee, on
behalf of itself and each Secured Party (and each of their respective successors
or assigns), hereby agree as follows:
SECTION 1. Defined Terms. Unless the context otherwise requires, all
capitalized terms used but not defined herein shall have the meanings set forth
in the Credit Agreement, and the following terms shall have the following
meanings:
"AWNA Indenture Debt" shall mean the senior notes issued by AWNA prior
to the date hereof under the AWNA Indenture in an aggregate principal amount of
approximately $1,700,000,000.
"AWNA Senior Note Obligations" shall mean the obligations (without
duplication) of AWNA and the Subsidiary Pledgors to pay the principal of,
premium, if any, and interest on, the AWNA Indenture Debt.
"BFI Indenture Debt" shall mean the senior notes issued by BFI prior to
the date hereof under the BFI Indenture in an aggregate principal amount of
approximately $1,450,000,000. The BFI Indenture Debt has been guaranteed by AWNA
and Allied Waste.
"BFI Senior Note Obligations" shall mean the obligations (without
duplication) of BFI and AWNA to pay the principal of, premium, if any, and
interest on, the BFI Indenture Debt.
"Collateral Account" shall have the meaning specified in Section 3.01
of the Collateral Trust Agreement.
"Credit Agreement" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Credit Agreement Senior Obligations" shall mean (a) the due and
punctual payment by AWNA of (i) the principal of and premium, if any, and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Senior Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by AWNA under the Credit
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Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
AWNA to the Senior Lenders 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 Senior Lenders or relating to
the Senior Loans under or pursuant to the Credit Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all the
covenants, agreements, obligations and liabilities of each Loan Party to the
Senior Lenders under or pursuant to this Agreement and the other Loan Documents
and (d) the due and punctual payment and performance of all obligations of any
Loan Party under each Interest Rate Protection Agreement entered into with any
counterparty that was a Senior Lender or an Affiliate of a Senior Lender at the
time such Interest Rate Protection Agreement was entered into.
"Debt Instruments" means (i) the Credit Agreement and the Subsidiary
Guarantee Agreement, (ii) the BFI Indenture, (iii) the AWNA Indenture and (iv)
each Interest Rate Protection Agreement under which a Credit Agreement Senior
Obligation exists.
"Event of Default" shall mean a "Senior Event of Default" under the
Credit Agreement or any "Event of Default" under the AWNA Indenture or the BFI
Indenture (as such term is defined in each such agreement or indenture).
"Obligations" shall mean, without duplication, (i) the Credit Agreement
Senior Obligations, (ii) the AWNA Senior Note Obligations and (iii) the BFI
Senior Note Obligations; provided, however, that the "Obligations" shall not in
any event include any obligations in respect of debt securities issued under the
AWNA Indenture or the BFI Indenture after the date hereof.
"Requisite Secured Parties" means, at any time, the Secured Party or
Secured Parties holding at least 51% in aggregate amount of the Obligations then
outstanding; provided that any balance in a Secured Party's Collateral Account
shall be deducted from the amount of Obligations held by such Secured Party for
purposes of determining the outstanding Obligations under this definition.
"Secured Parties" shall mean (a) the Senior Lenders, (b) the Agent, (c)
the Collateral Trustee, (d) the Issuing Banks, (e) each counterparty to an
Interest Rate Protection Agreement entered into with a Loan Party if such
counterparty was a Senior Lender or an Affiliate of a Senior Lender at the time
the Interest Rate Protection Agreement was entered into, (f) the beneficiaries
(other than the Tranche D Lenders and their Related Parties in their capacities
as such) of each indemnification obligation undertaken by AWNA or any Subsidiary
Pledgor under any Loan Document, (g) the AWNA Trustee, for the benefit of the
holders from time to time of the AWNA Indenture Debt, (h) the BFI Trustee, for
the benefit of the holders from time to time of the BFI Indenture Debt and (i)
the successors and assigns of each of the foregoing.
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"Trustee" means the AWNA Trustee or the BFI Trustee.
SECTION 2. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Subsidiary Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates, pledges, sets over
and delivers unto the Collateral Trustee, its successors and assigns, and hereby
grants to the Collateral Trustee, its successors and assigns, for the ratable
benefit of the Secured Parties, a security interest in all of such Subsidiary
Pledgor's right, title and interest in, to and under (a) the shares of capital
stock owned by it and listed on Schedule II hereto and any shares of capital
stock of any Subsidiary or any other person obtained in the future by such
Subsidiary Pledgor and required by the Credit Agreement to be pledged hereunder
and the certificates representing all such shares (the "Pledged Stock");
provided that Pledged Stock shall not include (i) more than 65% of the issued
and outstanding shares of stock of any Foreign Subsidiary or (ii) to the extent
that applicable law requires that a Subsidiary of such Subsidiary Pledgor issue
directors' qualifying shares, such qualifying shares; (b)(i) the debt securities
listed opposite such name of such Subsidiary Pledgor on Schedule II hereto, (ii)
any debt securities in the future issued to or held by such Subsidiary Pledgor
and required by the Credit Agreement to be pledged hereunder and (iii) the
promissory notes and any other instruments evidencing such debt securities (the
"Pledged Debt Securities"); (c) all other property that may be delivered to and
held by the Collateral Trustee pursuant to the terms hereof; (d) subject to
Section 6, all payments of principal or interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed, in respect of, in exchange for or upon the conversion of the
securities referred to in clauses (a) and (b) above; (e) subject to Section 6,
all rights and privileges of the Subsidiary Pledgor with respect to the
securities and other property referred to in clauses (a), (b), (c) and (d)
above; and (f) all proceeds of any of the foregoing (the items referred to in
clauses (a) through (f) above being collectively referred to as the
"Collateral"). Upon delivery to the Collateral Trustee, (a) any stock
certificates, notes or other securities now or hereafter included in the
Collateral (the "Pledged Securities") shall be accompanied by stock powers duly
executed in blank or other instruments of transfer satisfactory to the
Collateral Trustee and by such other instruments and documents as the Collateral
Trustee may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Subsidiary Pledgor and such other instruments or
documents as the Collateral Trustee may reasonably request. Each delivery of
Pledged Securities shall be accompanied by a schedule describing the securities
theretofore and then being pledged hereunder, which schedule shall be attached
hereto as Schedule II and made a part hereof. 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 Trustee, its successors and assigns, for the ratable benefit
of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
SECTION 3. Delivery of the Collateral. (a) Each Subsidiary Pledgor
agrees promptly to deliver or cause to be delivered to the Collateral Trustee
any and all Pledged Securities, and any and all certificates or other
instruments or documents representing the Collateral.
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(b) Each Subsidiary Pledgor will cause any Indebtedness for borrowed
money owed to such Subsidiary Pledgor by any person to be evidenced by a duly
executed promissory note that is pledged and delivered to the Collateral Trustee
pursuant to the terms thereof.
SECTION 4. Representations. Warranties and Covenants. Each Subsidiary
Pledgor hereby represents, warrants and covenants, as to itself and the
Collateral pledged by it hereunder, to and with the Collateral Trustee that:
(a) the Pledged Stock represents that percentage as set forth
on Schedule II of the issued and outstanding shares of each class of
the capital stock of the issuer with respect thereto;
(b) except for the security interest granted hereunder, such
Subsidiary Pledgor (i) is and will at all times continue to be the
direct owner, beneficially and of record, of the Pledged Securities
indicated on Schedule II, (ii) holds the same free and clear of all
Liens other than Permitted Encumbrances, (iii) 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 hereto or Permitted Encumbrances, and (iv) subject
to Section 6, will cause any and all Collateral, whether for value
paid by the Subsidiary Pledgor or otherwise, to be forthwith deposited
with the Collateral Trustee and pledged or assigned hereunder;
(c) the Subsidiary Pledgor (i) has the power and authority to
pledge the Collateral 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;
(d) no consent of any other person (including stockholders or
creditors of any Subsidiary Pledgor) and no consent or approval of any
Governmental Authority or any securities exchange was or is necessary
to the validity of the pledge effected hereby, except such consents or
approvals as have been obtained;
(e) by virtue of the execution and delivery by the Subsidiary
Pledgors of this Agreement, when the Pledged Securities, certificates
or other documents representing or evidencing the Collateral are
delivered to the Collateral Trustee in accordance with this Agreement,
the Collateral Trustee will obtain a valid and perfected first lien
upon and security interest in such Pledged Securities as security for
the payment and performance of the Obligations;
(f) the pledge effected hereby is effective to vest in the
Collateral Trustee, on behalf of the Secured Parties, the rights of
the Collateral Trustee in the Collateral as set forth herein;
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(g) all of the Pledged Stock which is capital stock of BFI or
any subsidiary thereof has been duly authorized and validly issued and
is fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged
Stock is accurate and complete in all material respects as of the date
hereof; and
(i) the pledge of the Pledged Stock pursuant to this Agreement
does not violate Regulation T, U or X of the Federal Reserve Board or
any successor thereto as of the date hereof.
SECTION 5. Registration in Nominee Name; Denominations. The Collateral
Trustee, on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
Subsidiary Pledgors, endorsed or assigned in blank or in favor of the Collateral
Trustee. Each Subsidiary Pledgor will promptly give to the Collateral Trustee
copies of any notices or other communications received by it with respect to
Pledged Securities registered in the name of such Subsidiary Pledgor. The
Collateral Trustee shall at all times have the right to exchange the
certificates representing Pledged Securities for certificates of smaller or
larger denominations for any purpose consistent with this Agreement.
SECTION 6. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Subsidiary Pledgor shall be entitled to exercise any
and all voting and/or other consensual rights and powers inuring to an
owner of Pledged Securities or any part thereof for any purpose
consistent with the terms of this Agreement, the Credit Agreement and
the other Loan Documents.
(ii) The Collateral Trustee shall execute and deliver to each
Subsidiary Pledgor, or cause to be executed and delivered to each
Subsidiary Pledgor, all such proxies, powers of attorney and other
instruments as such Subsidiary Pledgor may reasonably request for the
purpose of enabling such Subsidiary Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise
pursuant to subparagraph (i) above and to receive the cash dividends
it is entitled to receive pursuant to subparagraph (iii) below.
(iii) Each Subsidiary Pledgor shall be entitled to receive and
retain any and all cash dividends, interest 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, the BFI Indenture, the AWNA Indenture and
applicable laws. All noncash 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
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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 capital stock of the issuer of any Pledged Securities or
received in exchange for Pledged Securities or any part thereof, or in
redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a
party or otherwise, shall be and become part of the Collateral, and,
if received by any Subsidiary Pledgor, shall not be commingled by such
Subsidiary Pledgor with any of its other funds or property but shall
be held separate and apart therefrom, shall be held in trust for the
benefit of the Collateral Trustee and shall be forthwith delivered to
the Collateral Trustee in the same form as so received (with any
necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Subsidiary Pledgor to dividends, interest or
principal that such Subsidiary Pledgor is authorized to receive pursuant to
paragraph (a)(iii) above shall cease, and all such rights shall thereupon become
vested in the Collateral Trustee, which shall have the sole and exclusive right
and authority to receive and retain such dividends, interest or principal. All
dividends, interest or principal received by the Subsidiary Pledgor contrary to
the provisions of this Section 6 shall be held in trust for the benefit of the
Collateral Trustee, shall be segregated from other property or funds of such
Subsidiary Pledgor and shall be forthwith delivered to the Collateral Trustee
upon demand in the same form as so received (with any necessary endorsement).
Any and all money and other property paid over to or received by the Collateral
Trustee pursuant to the provisions of this paragraph (b) shall be retained by
the Collateral Trustee in an account to be established by the Collateral Trustee
upon receipt of such money or other property and shall be applied in accordance
with the provisions of Section 8. After all Events of Default have been cured or
waived, the Collateral Trustee shall, within five Business Days after all such
Events of Default have been cured or waived, repay to each Subsidiary Pledgor
all cash dividends, interest or principal (without interest), that such
Subsidiary Pledgor would otherwise be permitted to retain pursuant to the terms
of paragraph (a)(iii) above and which remain in such account.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Subsidiary Pledgor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to paragraph
(a)(i) of this Section 6, and the obligations of the Collateral Trustee under
paragraph (a)(ii) of this Section 6, shall cease, and all such rights shall
thereupon become vested in the Collateral Trustee, which shall have the sole and
exclusive right and authority to exercise such voting and consensual rights and
powers, provided that, the Collateral Trustee shall, at its sole discretion (or
with the consent of the Requisite Secured Parties, if the Collateral Trustee so
elects), have the right from time to time following and during the continuance
of an Event of Default to permit the Subsidiary Pledgors to exercise such
rights. After all Events of Default have been cured or waived, such Subsidiary
Pledgor will have the right to exercise the voting and consensual rights and
powers that it would otherwise be entitled to exercise pursuant to the terms of
paragraph (a)(i) above.
SECTION 7. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default of which the Collateral Trustee shall have
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received written notice from the Agent or the Trustee under the applicable Debt
Instrument, subject to applicable regulatory and legal requirements, the
Collateral Trustee may sell the Collateral, or any part thereof, at public or
private sale or at any broker's board or on any securities exchange, for cash,
upon credit or for future delivery as the Collateral Trustee shall deem
appropriate. The Collateral Trustee shall be authorized at any such sale (if it
deems it advisable to do so) to restrict the prospective bidders or purchasers
to persons who will represent and agree that they are purchasing the Collateral
for their own account for investment and not with a view to the distribution or
sale thereof, and upon consummation of any such sale the Collateral Trustee
shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Collateral so sold. Each such purchaser at any such sale
shall hold the property sold absolutely free from any claim or right on the part
of any Subsidiary Pledgor, and, to the extent permitted by applicable law, the
Subsidiary Pledgors hereby waive all rights of redemption, stay, valuation and
appraisal any Subsidiary Pledgor now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted.
The Collateral Trustee shall give a Subsidiary Pledgor 10 days' prior
written notice (which each Subsidiary Pledgor agrees is reasonable notice within
the meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in
the State of New York or its equivalent in other jurisdictions) of the
Collateral Trustee's intention to make any sale of such Subsidiary Pledgor's
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Trustee may fix and state in the notice of such sale. At any
such sale, the Collateral, or portion thereof, to be sold may be sold in one lot
as an entirety or in separate parcels, as the Collateral Trustee may (in its
sole and absolute discretion) determine. The Collateral Trustee shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Trustee may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so adjoumed.
In case any sale of all or any part of the Collateral is made on credit or for
future delivery, the Collateral so sold may be retained by the Collateral
Trustee until the sale price is paid in full by the purchaser or purchasers
thereof, but the Collateral Trustee shall not incur any liability in case any
such purchaser or purchasers shall fall to take up and pay for the Collateral so
sold and, in case of any such failure, such Collateral may be sold again upon
like notice. At any public (or, to the extent permitted by applicable law,
private) sale made pursuant to this Section 7, any Secured Party may bid for or
purchase, free from any right of redemption, stay or appraisal on the part of
any Subsidiary Pledgor (all said rights being also hereby waived and released),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any claim then due and payable to it from such
Subsidiary Pledgor as a credit against the purchase price, and it may, upon
compliance with the terms of sale, hold, retain and dispose of such property
without further accountability to such Subsidiary Pledgor therefor. For purposes
hereof, (a) a written agreement to purchase the Collateral or any portion
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thereof shall be treated as a sale thereof, (b) the Collateral Trustee shall be
free to carry out such sale pursuant to such agreement and (c) such Subsidiary
Pledgor shall not be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Trustee shall have entered into such an agreement all Events of Default shall
have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Trustee
may proceed by a suit or suits at law or in equity to foreclosure upon the
Collateral and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 7 shall be deemed to conform to the commercially
reasonable standards as provide in Section 9-504(3) of the Uniform Commercial
Code as in effect in the State of New York or its equivalent in other
jurisdictions.
SECTION 8. Application of Proceeds of Sale. The Collateral Trustee
shall apply the proceeds of any collection or sale of the Collateral, as well as
any Collateral consisting of cash, in the manner set forth in the Collateral
Trust Agreement; provided, however, that if the Collateral Trust Agreement shall
not be in effect, such proceeds and cash shall be applied as follows:
FIRST, to the payment of all costs and expenses incurred by
the Agent or the Collateral Trustee (in its capacity as such hereunder
or under any other Loan Document) in connection with such collection
or sale or otherwise in connection with this Agreement or any of the
Obligations, including all court costs and the fees and expenses of
its agents and legal counsel, the repayment of all advances made by
the Collateral Trustee or any Secured Party hereunder or under any
other Loan Document on behalf of any Subsidiary Pledgor and any other
costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Credit Agreement Senior
Obligations (the amounts so applied to be distributed among the
holders of the Credit Agreement Senior Obligations pro rata in
accordance with the amounts of the Credit Agreement Senior Obligations
owed to them on the date of any such distribution); and
THIRD, to the Subsidiary Pledgors, their successors or
assigns, or as a court of competent jurisdiction may otherwise direct.
The Collateral Trustee shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Trustee (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Trustee or of the officer making the sale shall be
a sufficient discharge to the purchaser or purchasers of the Collateral so sold
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and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral
Trustee or such officer or be answerable in any way for the misapplication
thereof.
SECTION 9. Reimbursement of Collateral Trustee. (a) Each Subsidiary
Pledgor agrees to pay upon demand to the Collateral Trustee the amount of any
and all reasonable expenses, including the reasonable fees, other charges and
disbursements of its counsel and of any experts or agents, that the Collateral
Trustee may incur in connection with (i) the administration of this Agreement,
(ii) the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Collateral Trustee hereunder or (iv) the failure by
such Subsidiary Pledgor to perform or observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Subsidiary Pledgor agrees to indemnify the Collateral
Trustee, the Indemnitees (as defined in Section 9.03(b) of the Credit
Agreement), the BFI Trustee and the AWNA Trustee (collectively, the "Shared
Collateral Indemnitees") against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, other charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement, the AWNA Indenture
and the BFI Indenture or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated 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 final and 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 9 shall remain operative and in full force and effect regardless
of the termination of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document or any investigation made by or on behalf of the Collateral Trustee or
any other Secured Party. All amounts due under this Section 9 shall be payable
on written demand therefor and shall bear interest at the rate specified in
Section 2.06 of the Credit Agreement.
SECTION 10. Collateral Trustee Appointed Attorney-in-Fact. Each
Subsidiary Pledgor hereby appoints the Collateral Trustee the attorney-in-fact
of such Subsidiary Pledgor for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument that the
Collateral Trustee may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, the Collateral Trustee shall have the
right, upon the occurrence and during the continuance of an Event of Default of
10
which the Collateral Trustee shall have received written notice from the Agent
or a Trustee under the applicable Debt Instrument, with full power of
substitution either in the Collateral Trustee's name or in the name of such
Subsidiary Pledgor, to ask for, demand, xxx for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue of
any Collateral, to endorse checks, drafts, orders and other instruments for the
payment of money payable to such Subsidiary Pledgor representing any interest or
dividend or other distribution payable in respect of the Collateral or any part
thereof or on account thereof and to give full discharge for the same, to
settle, compromise, prosecute or defend any action, claim or proceeding with
respect thereto, and to sell, assign, endorse, pledge, transfer and to make any
agreement respecting, or otherwise deal with, the same; provided, however, that
nothing herein contained shall be construed as requiring or obligating the
Collateral Trustee to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by the Collateral Trustee, or to
present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Trustee and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Subsidiary Pledgor for any act or failure to act hereunder, except for their own
gross negligence or wilful misconduct.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Collateral Trustee in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Trustee
hereunder and of the other Secured Parties under the other Loan Documents, the
BFI Indenture and the AWNA Indenture 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 consent to any departure by any Subsidiary Pledgor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on any Subsidiary Pledgor in any case shall entitle such Subsidiary Pledgor to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Collateral Trustee and the Subsidiary Pledgor or Subsidiary Pledgors with
respect to which such waiver, amendment or modification is to apply, subject to
any consent required in accordance with Section 9.02 of the Credit Agreement.
SECTION 12. Securities Act, etc. In view of the position of the
Subsidiary Pledgors in relation to the Pledged Securities, or because of other
current or future circumstances, a question may arise under the Securities Act
of 1933, as now or hereafter in effect, or any similar statute hereafter enacted
analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being called the "Federal Securities Laws") with respect
to any disposition of the Pledged Securities permitted hereunder. Each
11
Subsidiary Pledgor understands that compliance with the Federal Securities Laws
might very strictly limit the course of conduct of the Collateral Trustee if the
Collateral Trustee were to attempt to dispose of all or any part of the Pledged
Securities, and might also limit the extent to which or the manner in which any
subsequent transferee of any Pledged Securities could dispose of the same.
Similarly, there may be other legal restrictions or limitations affecting the
Collateral Trustee in any attempt to dispose of all or part of the Pledged
Securities under applicable Blue Sky or other state securities laws or similar
laws analogous in purpose or effect. Each Subsidiary Pledgor recognizes that in
light of such restrictions and limitations the Collateral Trustee may, with
respect to any sale of the Pledged Securities, limit the purchasers to those who
will agree, among other things, to acquire such Pledged Securities for their own
account, for investment, and not with a view to the distribution or resale
thereof. Each Subsidiary Pledgor acknowledges and agrees that in light of such
restrictions and limitations, the Collateral Trustee, in its sole and absolute
discretion, (a) may proceed to make such a sale whether or not a registration
statement for the purpose of registering such Pledged Securities or part thereof
shall have been filed under the Federal Securities Laws and (b) may approach and
negotiate with a single potential purchaser to effect such sale. Each Subsidiary
Pledgor acknowledges and agrees that any such sale might result in prices and
other terms less favorable to the seller than if such sale were a public sale
without such restrictions. In the event of any such sale, the Collateral Trustee
shall incur no responsibility or liability for selling all or any part of the
Pledged Securities at a price that the Collateral Trustee, in its sole and
absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
12 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Trustee sells.
SECTION 13. Registration, etc. Each Subsidiary Pledgor agrees that,
upon the occurrence and during the continuance of an Event of Default of which
the Collateral Trustee shall have received written notice from the Agent or a
Trustee under the applicable Debt Instrument, if for any reason the Collateral
Trustee desires to sell any of the Pledged Securities at a public sale, it will,
at any time and from time to time, upon the written request of the Collateral
Trustee, use its best efforts to take or to cause the issuer of such Pledged
Securities to take such action and prepare, distribute and/or file such
documents, as are required or advisable in the reasonable opinion of counsel for
the Collateral Trustee to permit the public sale of such Pledged Securities.
Each Subsidiary Pledgor further agrees to indemnify, defend and hold harmless
the Collateral Trustee, each other Secured Party, any underwriter and their
respective officers, directors, affiliates and controlling persons from and
against all loss, liability, expenses, costs of counsel (including, without
limitation, reasonable fees and expenses to the Collateral Trustee of legal
counsel), 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
12
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to such Subsidiary Pledgor or the issuer of such Pledged Securities by the
Collateral Trustee or any other Secured Party expressly for use therein. Each
Subsidiary Pledgor further agrees, upon such written request referred to above,
to use its best efforts to qualify, file or register, or cause the issuer of
such Pledged Securities to qualify, file or register, any of the Pledged
Securities under the Blue Sky or other securities laws of such states as may be
requested by the Collateral Trustee and keep effective, or cause to be kept
effective, all such qualifications, filings or registrations. Each Subsidiary
Pledgor will bear all costs and expenses of carrying out its obligations under
this Section 13. Each Subsidiary Pledgor acknowledges that there is no adequate
remedy at law for failure by it to comply with the provisions of this Section 13
and that such failure would not be adequately compensable in damages, and
therefore agrees that its agreements contained in this Section 13 may be
specifically enforced.
SECTION 14. Security Interest Absolute. All rights of the Collateral
Trustee hereunder, the grant of a security interest in the Collateral and all
obligations of each Subsidiary Pledgor hereunder, shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document, any agreement with respect to any of
the Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, the BFI Indenture,
the AWNA Indenture, any other Loan Document or any other agreement or instrument
relating to any of the foregoing, (c) any exchange, release or nonperfection of
any other collateral, or any release or amendment or waiver of or consent to or
departure from any guaranty, for all or any of the Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Subsidiary Pledgor in respect of the Obligations or in respect
of this Agreement (other than the indefeasible payment in full of all the
Obligations).
SECTION 15. Termination or Release. This Agreement and the pledge
hereunder (i) shall cease to be effective with respect to the BFI Senior Note
Obligations and the AWNA Senior Note Obligations on the earlier of the date (a)
on which all the AWNA Indenture Debt and the BFI Indenture Debt shall have been
paid to the holders thereof and (b) that is ten days after the provisions of the
AWNA Indenture and the BFI Indenture that require equal and ratable security
shall be held by a court of competent jurisdiction to be invalid, void or
unenforceable and (ii) shall terminate when all the Credit Agreement Senior
Obligations have been indefeasibly paid in full, the Senior Lenders have no
further commitment to lend, the LC Exposure has been reduced to zero, the
Issuing Banks have no further commitment to issue Letters of Credit under the
Credit Agreement and the Agent has given written notification thereof to the
Collateral Trustee, at which time the Collateral Trustee shall execute and
deliver to the Subsidiary Pledgors, at the Subsidiary Pledgors' expense, all
documents which the Subsidiary Pledgors shall reasonably request to evidence
such termination. Any execution and delivery of such documents pursuant to this
Section 15 shall be without recourse to or warranty by the Collateral Trustee
and shall, upon the reasonable prior request of the Subsidiary Pledgors, be made
13
prior to such termination for holding in escrow pending such termination. A
Subsidiary Pledgor shall automatically be released from its obligations
hereunder and the pledge of the Collateral of such Subsidiary Pledgor hereunder
shall be automatically released in the event that all the capital stock of such
Subsidiary Pledgor shall be sold, transferred or otherwise disposed of to a
person that is not an Affiliate of AWNA in accordance with the terms of the
Credit Agreement and the other Loan Documents; provided that, if required by the
terms of the Credit Agreement, the Required Senior Lenders, all the Senior
Lenders or all the Lenders, as the case may be, shall have consented to such
sale, transfer or other disposition and the terms of such consent did not
provide otherwise; and, provided, further, that any release of a Subsidiary
Pledgor or any Collateral after the occurrence and during the continuance of a
Triggering Event (as defined in the Collateral Trust Agreement) shall be subject
to the prior approval of the Collateral Trustee.
SECTION 16. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Subsidiary Pledgor shall be given to
it in care of AWNA. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt. Notices to the AWNA Indenture Trustee
and the BFI Indenture Trustee shall be given as provided in the AWNA Indenture
and the BFI Indenture, respectively.
SECTION 17. Further Assurances. Each Subsidiary Pledgor agrees to do
such further acts and things, and to execute and deliver such additional
conveyances, assignments, agreements and instruments, as the Collateral Trustee
may at any time reasonably request in connection with the administration and
enforcement of this Agreement or with respect to the Collateral or any part
thereof or in order better to assure and confirm unto the Collateral Trustee its
rights and remedies hereunder.
SECTION 18. Binding Effect; Several Agreement; Assignments; Successor
Collateral Trustee. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements by or on
behalf of any Subsidiary Pledgor that are contained in this Agreement shall bind
and inure to the benefit of its successors and assigns. This Agreement shall
become effective as to any Subsidiary Pledgor when a counterpart hereof executed
on behalf of such Subsidiary Pledgor shall have been delivered to the Collateral
Trustee and a counterpart hereof shall have been executed on behalf of the
Collateral Trustee, and thereafter shall be binding upon such Subsidiary Pledgor
and the Collateral Trustee and their respective successors and assigns, and
shall inure to the benefit of such Subsidiary Pledgor, the Collateral Trustee
and the other Secured Parties, and their respective successors and assigns,
except that no Subsidiary Pledgor shall have the right to assign its rights
hereunder or any interest herein or in the Collateral (and any such attempted
assignment shall be void), except as expressly contemplated by this Agreement or
the other Loan Documents. This Agreement shall be construed as a separate
agreement with respect to each Subsidiary Pledgor and may be amended, modified,
supplemented, waived or released with respect to any Subsidiary Pledgor without
the approval of any other Subsidiary Pledgor and without affecting the
obligations of any other Subsidiary Pledgor hereunder. The Collateral Trustee
may resign and a successor Collateral Trustee may be appointed in the manner
14
provided in the Collateral Trust Agreement. Upon the acceptance of any
appointment as a collateral trustee by a successor collateral trustee, that
successor collateral trustee shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring collateral
trustee, as secured party under this Agreement, and the retiring collateral
trustee shall thereupon be discharged from its duties and obligations under this
Agreement. After any retiring collateral trustee's resignation, the provisions
of this Agreement shall inure to its benefit as to any actions taken or omitted
to be taken by it under this Agreement while it was Collateral Trustee.
SECTION 19. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Subsidiary Pledgor
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Collateral Trustee and the other
Secured Parties and shall survive the making by the Senior Lenders of the Senior
Loans and the issuance of the Letters of Credit by the Issuing Banks, regardless
of any investigation made by the Secured Parties or on their behalf, and shall
continue in full force and effect until this Agreement has been terminated in
accordance with Section 15.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 20. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract (subject to Section 18), and
shall become effective as provided in Section 18. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 22. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.
SECTION 23. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Pledgor hereby irrevocably and unconditionally submits, for itself
15
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 the other Loan Documents, 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, the BFI Indenture, the AWNA Indenture or the other
Loan Documents against any Subsidiary Pledgor or its properties in the courts of
any jurisdiction.
(b) Each Subsidiary Pledgor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 16. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 24. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY 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 25. Additional Subsidiary Pledgors. Pursuant to Section 5.l0A
of the Credit Agreement, each Specified Subsidiary that is a subsidiary of BFI
that was not in existence or not such a Specified Subsidiary on the date of the
Credit Agreement is required to enter in this Agreement as a Subsidiary Pledgor
upon becoming such a Specified Subsidiary if such Subsidiary owns or possesses
property of a type that would be considered Collateral hereunder. Upon execution
and delivery by the Collateral Trustee and a Subsidiary of an instrument in the
form of Annex 1, such Subsidiary shall become a Subsidiary Pledgor hereunder
16
with the same force and effect as if originally named as a Subsidiary Pledgor
herein. The execution and delivery of such instrument shall not require the
consent of any Subsidiary Pledgor hereunder. The rights and obligations of each
Subsidiary Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Pledgor as a party to this
Agreement.
SECTION 26. Execution of Financing Statements. Pursuant to Section
9-402 of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions, each Subsidiary Pledgor authorizes the
Collateral Trustee to file financing statements with respect to the Collateral
owned by it without the signature of such Subsidiary Pledgor in such form and in
such filing offices as the Collateral Trustee reasonably determines appropriate
to perfect the security interests of the Collateral Trustee under this
Agreement. A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
SECTION 27. Collateral Trustee in its Individual Capacity. The
Collateral Trustee and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with Allied Waste and its
Subsidiaries as though the Collateral Trustee were not collateral trustee
hereunder. With respect to the Loans made by it and all Obligations owing to it,
the Collateral Trustee shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not the
collateral trustee, and the terms "Senior Lender" and "Senior Lenders" shall
include the Collateral Trustee in its individual capacity.
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:
THE SUBSIDIARY PLEDGORS LISTED ON
SCHEDULE I HERETO,
by
----------------------------------
Name:
Title: Authorized Officer
THE CHASE MANHATTAN BANK, as
Collateral Trustee,
by
---------------------------------
Name:
Title:
18
Schedule I to the
Shared Collateral Pledge Agreement
SUBSIDIARY PLEDGORS
Name [Address]
---- -------
Schedule II to the
Shared Collateral Pledge Agreement
Schedule II to the
Shared Collateral Pledge Agreement
CAPITAL STOCK
Number of Registered Number and Percentage
Issuer Certificate Owner Class of Shares of Shares
------ ----------- ----- --------------- ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------- ------------- ------------- ---------------
Annex 1 to the
Shared Collateral Pledge Agreement
SUPPLEMENT NO. __ dated as of , to the
SHARED COLLATERAL PLEDGE AGREEMENT dated as of July
30, 1999 (the "Shared Collateral Pledge Agreement")
among Allied Waste North America, Inc., a Delaware
corporation ("AWNA") and each Subsidiary of AWNA
listed on Schedule I thereto (each such Subsidiary
individually a "Subsidiary Pledgor" and collectively,
the "Subsidiary Pledgors") and The Chase Manhattan
Bank, a New York banking corporation ("Chase"), as
collateral trustee (in such capacity, the "Collateral
Trustee") for the Secured Parties (as defined in the
Shared Collateral Pledge Agreement referred to
below).
A. Reference is made to (a) the Credit Agreement dated as of July 21,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among AWNA, Allied Waste Industries, Inc., the lenders from
time to time party thereto (the "Lenders"), and Chase, as administrative agent
and collateral agent for the Lenders.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Shared Collateral Pledge
Agreement and the Credit Agreement.
C. The Subsidiary Plcdgors have entered into the Shared Collateral
Pledge Agreement in order to induce the Senior Lenders to make Senior Loans and
other extensions of credit under the Credit Agreement. Section 5.10A of the
Shared Collateral Pledge Agreement provides that additional Subsidiaries of AWNA
may become Subsidiary Pledgors under the Shared Collateral Pledge Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Subsidiary Pledgor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Subsidiary Pledgor under the Shared Collateral Pledge Agreement in order to
induce the Senior Lenders to make additional Senior Loans and other extensions
of credit under the Credit Agreement.
Accordingly, the Collateral Trustee and the New Subsidiary Pledgor
agree as follows:
SECTION 1. In accordance with Section 25 of the Shared Collateral
Pledge Agreement, the New Subsidiary Pledgor by its signature below becomes a
Subsidiary Pledgor under the Shared Collateral Pledge Agreement with the same
force and effect as if originally named therein as a Subsidiary Pledgor and the
New Subsidiary Pledgor hereby agrees (a) to all the terms and provisions of the
Shared Collateral Pledge Agreement applicable to it as a Subsidiary Pledgor
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Subsidiary Pledgor thereunder are true and correct on
and as of the date hereof. In furtherance of the foregoing, the New Subsidiary
Pledgor, as security for the payment and performance in full of the Obligations
(as defined in the Shared Collateral Pledge Agreement), does hereby create and
grant to the Collateral Trustee, its successors and assigns, for the benefit of
the Secured Parties, their successors and assigns, a security interest in and
lien on all of the New Subsidiary Pledgor's right, title and interest in and to
the Collateral (as defined in the Shared Collateral Pledge Agreement) of the New
Subsidiary Pledgor. Each reference to a "Subsidiary Pledgor" in the Shared
Collateral Pledge Agreement shall be deemed to include the New Subsidiary
Pledgor. The Shared Collateral Pledge Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Subsidiary Pledgor represents and warrants to the
Collateral Trustee and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Trustee shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Pledgor and the
Collateral Trustee. Delivery of an executed signature page to this Supplement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. The New Subsidiary Pledgor hereby represents and warrants
that set forth on Schedule I attached hereto is a true and correct schedule of
all its Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Shared
Collateral Pledge Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Shared Collateral Pledge Agreement shall not in any way be
affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 15 of the Shared Collateral Pledge Agreement.
All communications and notices hereunder to the New Subsidiary Pledgor shall be
given to it in care of AWNA as set forth in the Shared Collateral Pledge
Agreement.
SECTION 9. The New Subsidiary Pledgor agrees to reimburse 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.
IN WITNESS WHEREOF, the New Subsidiary Pledgor and the Collateral
Trustee have duly executed this Supplement to the Shared Collateral Pledge
Agreement as of the day and year first above written.
[Name of New Subsidiary Pledgor],
by
----------------------------------
Name:
Title:
Address:
THE CHASE MANHATTAN BANK, as
Collateral Trustee,
By
----------------------------------
Name:
Title:
Schedule I to
Supplement No.
to the Shared Collateral Pledge Agreement
Pledged Securities of the New Subsidiary Pledgor
-------------------------------------------------
CAPITAL STOCK
Number of Registered Number and Class of Percentage of
Issuer Certificate Owner Shares Shares
------- ----------- ---------- ------------------- ------------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
-------- ----------- ------------ -------------
Schedule I to
Subsidiary Pledgors Pursuant to
the Shared Collateral Pledge Agreement
SCHEDULE I: SUBSIDIARY PLEDGORS PURSUANT TO
THE SHARED COLLATERAL PLEDGE AGREEMENT
BFI PLEDGORS
Attwoods of North America, Inc.
BFI Waste Systems of North America, Inc.
BFI Energy Systems of Albany, Inc.
BFI Energy Systems of Delaware County, Inc.
BFI Energy Systems of Essex County, Inc.
BFI Energy Systems of Hempstead, Inc.
BFI Energy Systems of Niagara, Inc.
BFI Energy Systems of SEMASS, Inc.
BFI Energy Systems of Southeastern Connecticut, Inc.
BFI International, Inc.
BFI Medical Waste Systems of Washington, Inc.
BFI Trans River (GP), Inc.
BFI Transfer Systems of New Jersey, Inc.
BFI Waste Systems of New Jersey, Inc.
Xxxxxxxx-Xxxxxx Financial Services, Inc.
Xxxxxxxx-Xxxxxx Gas Services, Inc.
Xxxxxxxx-Xxxxxx, Inc.
Xxxxxxxx-Xxxxxx Industries, Inc. (DE)
Xxxxxxxx-Xxxxxx Industries, Inc. (MA)
Xxxxxxxx-Xxxxxx Industries Chemical Services, Inc.
Xxxxxxxx-Xxxxxx Industries of California, Inc.
Xxxxxxxx-Xxxxxx Industries of Connecticut, Inc.
Xxxxxxxx-Xxxxxx Industries of Florida, Inc.
Xxxxxxxx-Xxxxxx Industries of Hawaii, Inc.
Xxxxxxxx-Xxxxxx Industries of New York, Inc.
Xxxxxxxx-Xxxxxx Industries of Ohio, Inc.
Xxxxxxxx-Xxxxxx Industries of Tennessee, Inc.
Xxxxxxxx-Xxxxxx Services, Inc.
CECOS, International, Inc.
International Disposal Corp. of California
Lake Xxxxxx Landfill, Inc.
Maui Disposal Co., Inc.
New Xxxxxx Landfill Company, Inc.
Newco Waste Systems of New Jersey, Inc.
Risk Services, Inc.
VHG, Inc.
Xxxxxx Xxxx Development Company
Woodlake Sanitary Service, Inc.
Schedule II:
Shared Collateral Pledge Agreement
SCHEDULE II: SHARED COLLATERAL PLEDGE AGREEMENT
PART B: DEBT SECURITIES
None.
