Exhibit 4.33
DECLARATION OF TRUST
Declaration of Trust, dated as of November 25, 2002 (this
"Declaration of Trust"), among Allied Waste Industries, Inc., as sponsor (the
"Sponsor"), U.S. Bank Trust National Association, as trustee (the "Delaware
Trustee"), U.S. Bank National Association, as trustee (the "Property Trustee"),
and Xxxxxx X. Xxxxxx, as trustee (the "Regular Trustee" and, together with the
Delaware Trustee and the Property Trustee, the "Trustees").
The Sponsor and the Trustees hereby agree as follows:
Section 1. Name of Trust. The Delaware statutory trust created
hereby shall be known as "AWNA Trust" (the "Trust"), in which name the Sponsor
or the Trustees, to the extent provided herein, may conduct the business of the
Trust, make and execute contracts, and xxx and be sued.
Section 2. Creation and Purpose of Trust.
(a) The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of ten dollars ($10.00). The Regular Trustee hereby
acknowledges receipt of such amount from the Sponsor, which amount shall
constitute the initial trust estate. It is the intention of the parties hereto
that the Trust created hereby constitutes a statutory trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. Code Section 3801 et. seq. (the
"Statutory Trust Act"), and that this Declaration of Trust constitutes the
governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Secretary of State
of the State of Delaware in such form as the Trustees may approve in accordance
with the provisions of the Statutory Trust Act.
(b) The Trust is hereby established by the Sponsor and the Trustees
for the purposes of (i) issuing preferred securities representing undivided
beneficial interests in the assets of the Trust ("Preferred Securities") in
exchange for cash and investing the proceeds thereof in debt securities of
Allied Waste North America, Inc. ("AWNA"), a wholly owned subsidiary of the
Sponsor, (ii) issuing and selling common securities representing undivided
beneficial interests in the assets of the Trust ("Common Securities") to AWNA in
exchange for cash and investing the proceeds thereof in debt securities of AWNA
and (iii) engaging in such other activities as are necessary or incidental
thereto.
Section 3. Amended and Restated Declaration of Trust. The Sponsor
and the Trustees will enter into an Amended and Restated Declaration of Trust
(the "Amended and Restated Declaration of Trust"), satisfactory to each such
party, to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred Securities and Common Securities referred to
herein. Prior to the execution and delivery of the Amended and Restated
Declaration of Trust, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees may take all actions
deemed necessary or advisable to affect the transactions contemplated in the
Amended and Restated Declaration of Trust.
Section 4. Registration of Preferred Securities.
The Sponsor, as the sponsor of the Trust, is hereby authorized:
(a) to prepare and file with the Securities and Exchange Commission
(the "Commission") and execute, in each case on behalf of the Trust, (i) a
registration statement on Form S-3 or on such other form or forms as may be
appropriate, including without limitation any registration statement of the type
contemplated by Rule 462(b) of the Securities Act of 1933, as amended (the
"Securities Act") (any such registration statement, whether on Form S-3, another
form or under Rule 462(b) being referred to herein as the "Registration
Statement"), including any pre-effective or post-effective amendments to the
Registration Statement, relating to the registration under the Securities Act of
the Preferred Securities and certain other securities of the Sponsor and (ii) if
the Sponsor shall deem it desirable, a registration statement on Form 8-A (the
"Exchange Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
Securities under Section 12 of the Securities Exchange Act of 1934, as amended;
(b) if the Sponsor shall deem it desirable, to prepare and file with
New York Stock Exchange, Inc. or any other automated quotation system, exchange
or over-the-counter market (each, an "Exchange") and execute on behalf of the
Trust a listing application or applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any Exchange;
(c) to prepare and file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the Sponsor,
on behalf of the Trust, may deem necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable;
(d) to negotiate the terms of and execute on behalf of the Trust an
underwriting or other purchase agreement among the Trust, the Sponsor and any
underwriter(s), dealer(s) or agent(s) relating to the Preferred Securities, as
the Sponsor, on behalf of the Trust, may deem necessary or desirable; and
(e) to execute and deliver on behalf of the Trust letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities.
In the event that any filing referred to in clauses (a) - (c) above
is required by the rules and regulations of the Commission, any Exchange, the
National Association of Securities Dealers, Inc. or state securities or blue sky
laws, to be executed on behalf of the Trust by a Trustee, any natural person (or
entity that has its principal place of business in the State of Delaware)
appointed pursuant to Section 5 hereof, in his or her capacity as trustee of the
Trust, and the Sponsor are hereby authorized to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing. In no event will
any Trustee have any responsibility or liability to the Trust, any beneficial
owner thereof, or any other person, for acts, statements or omissions of the
Sponsor, including, without limitation, such acts, statements or omissions of
the Sponsor in connection with the activities described in this Section 4.
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Section 5. Trustees. The number of Trustees initially shall be three
(3) and thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Sponsor that may
increase or decrease the number of Trustees; provided, however, that the number
of Trustees shall in no event be less than three (3); and provided, further,
that to the extent required by the Statutory Trust Act, one Trustee shall either
be a natural person who is a resident of the State of Delaware or, if not a
natural person, an entity that has its principal place of business in the State
of Delaware and meets other requirements imposed by applicable law. Subject to
the foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty (30) days' prior notice
to the Sponsor.
Section 6. Dissolution of Trust. The Trust may be dissolved and
terminated at the election of the Sponsor.
Section 7. Counterparts. This Declaration of Trust may be executed
in one or more counterparts.
Section 8. Headings. The headings of the various sections herein are
for convenience of reference only and shall not define or limit any of the terms
or provisions hereof.
Section 9. Governing Law. This Declaration of Trust shall be
governed by, and construed in accordance with, the laws of the State of Delaware
(without regard to conflict of laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
ALLIED WASTE INDUSTRIES, INC., as Sponsor
By:_________________________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION, not
in its individual capacity, but solely as
Trustee of the Trust
By:_________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Trustee
of the Trust
By:_________________________________________
Name:
Title:
XXXXXX X. XXXXXX, not in his individual
capacity, but solely as Trustee of the Trust
By:_________________________________________
Name: Xxxxxx X. Xxxxxx
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