EXHIBIT 4.8
SHARED COLLATERAL SECURITY 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 Grantor"
and collectively, the "Subsidiary Grantors") 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 herein).
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 Grantors, 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc. ("BFI") and Chase Bank of Texas, N.A.,
as successor trustee to First City Texas-Houston, NA. (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 Grantors 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 Grantors (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 Grantors 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 AWNA, the
Subsidiary Grantors and the Collateral Trustee.
Accordingly, the Subsidiary Grantors and the Collateral Trustee, on
behalf of itself and each Secured Party (and each of their respective successors
or assigns), hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Terms Used Herein. Unless the context
otherwise requires, all capitalized terms used but not defined herein shall have
the meanings set forth in the Credit Agreement and all references to the Uniform
Commercial Code shall mean the Uniform Commercial Code in effect in the State of
New York as of the date hereof.
SECTION 1.02. Definition of Certain Terms Used Herein. As used herein,
the following terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may become
obligated to any Subsidiary Grantor under, with respect to or on account of an
Account.
"Accounts" shall mean any and all right, title and interest of any
Subsidiary Grantor to payment for goods and services sold or leased, including
any such right evidenced by chattel paper, whether due or to become due, whether
or not it has been earned by performance, and whether now or hereafter acquired
or arising in the future, including accounts receivable from Affiliates of the
Subsidiary Grantors.
"Accounts Receivable" shall mean all Accounts and all right, title and
interest in any returned goods, together with all rights, tides, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether now existing or
owned or hereafter arising or acquired.
"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 Grantors 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" shall mean all (a) Accounts Receivable, (b) Documents, (c)
Equipment, (d) General Intangibles, (e) Inventory, (f) cash and cash accounts,
(g) Investment Property and (h) Proceeds.
"Commodity Account" shall mean an account maintained by a Commodity
Intermediary in which a Commodity Contract is carried out for a Commodity
Customer.
"Commodity Contract" shall mean a commodity futures contract, an option
on a commodity futures contract, a commodity option or any other contract that,
in each case, is (a) traded on or subject to the rules of a board of trade that
has been designated as a contract market for such a contract pursuant to the
federal commodities laws or (b) traded on a foreign commodity board of trade,
exchange or market, and is carried on the books of a Commodity Intermediary for
a Commodity Customer.
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"Commodity Customer" shall mean a person for whom a Commodity
Intermediary carries a Commodity Contract on its books.
"Commodity Intermediary" shall mean (a) a person who is registered as a
futures commission merchant under the federal commodities laws or (b) a person
who in the ordinary course of its business provides clearance or settlement
services for a board of trade that has been designated as a contract market
pursuant to federal commodities laws.
"Copyright License" shall mean any written agreement, now or hereafter
in effect, granting any right to any third party under any Copyright now or
hereafter owned by any Subsidiary Grantor or that such Subsidiary Grantor
otherwise has the right to license, or granting any right to such Subsidiary
Grantor under any Copyright now or hereafter owned by any third party, and all
rights of such Subsidiary Grantor under any such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
acquired by any Subsidiary Grantor: (a) all copyright rights in any work subject
to the copyright laws of the United States or any other country, whether as
author, assignee, transferee or otherwise, and (b) all registrations and
applications for registration of any such copyright in the United States or any
other country, including registrations, recordings, supplemental registrations
and pending applications for registration in the United States Copyright Office,
including those listed on Schedule II.
"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
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 AWNA 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.
"Documents" shall mean all instruments, files, records, ledger sheets
and documents covering or relating to any of the Collateral.
"Entitlement Holder" shall mean a person identified in the records of a
Securities Intermediary as the person having a Security Entitlement against the
Securities Intermediary. If a person acquires a Security Entitlement by virtue
of Section 8-501(b)(2) or (3) of the Uniform Commercial Code, such person is the
Entitlement Holder.
"Equipment" shall mean all equipment, furniture and furnishings, and
all tangible personal property similar to any of the foregoing, including tools,
parts and supplies of every kind and description, and all improvements,
accessions or appurtenances thereto, that are now or hereafter owned by any
Subsidiary Grantor. The term Equipment shall include Fixtures.
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"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).
"Financial Asset" shall mean (a) a Security, (b) an obligation of a
person or a share, participation or other interest in a person or in property or
an enterprise of a person that is, or is of a type, dealt with in or traded on
financial markets, or that is recognized in any area in which it is issued or
dealt in as a medium for investment or (c) any property that is held by a
Securities Intermediary for another person in a Securities Account if the
Securities Intermediary has expressly agreed with the other person that the
property is to be treated as a Financial Asset under Article 8 of the Uniform
Commercial Code. As the context requires, the term Financial Asset shall mean
either the interest itself or the means by which a person's claim to it is
evidenced, including a certificated or uncertificated Security, a certificate
representing a Security or a Security Entitlement.
"Fixtures" shall mean all items of Equipment, whether now owned or
hereafter acquired, of any Subsidiary Grantor that become so related to
particular real estate that an interest in them arises under any real estate law
applicable thereto.
"General Intangibles" shall mean all choses in action and causes of
action and all other assignable intangible personal property of any Subsidiary
Grantor of every kind and nature (other than Accounts Receivable) now owned or
hereafter acquired by any Subsidiary Grantor, including all rights and interests
in partnerships, limited partnerships, limited liability companies and other
unincorporated entities, corporate or other business records, indemnification
claims, contract rights (including rights under leases, whether entered into as
lessor or lessee, Interest Rate Protection Agreements and other agreements),
Intellectual Property, goodwill, registrations, franchises, tax refund claims
and any letter of credit, guarantee, claim, security interest or other security
held by or granted to any Subsidiary Grantor to secure payment by an Account
Debtor of any of the Accounts Receivable.
"Intellectual Property" shall mean all intellectual and similar
property of any Subsidiary Grantor of every kind and nature now owned or
hereafter acquired by any Subsidiary Grantor, including inventions, designs,
Patents, Copyrights, Licenses, Trademarks, trade secrets, confidential or
proprietary technical and business information, know-how, show-how or other data
or information, software and databases and all embodiments or fixations thereof
and related documentation, registrations and franchises, and all additions,
improvements and accessions to, and books and records describing or used in
connection with, any of the foregoing.
"Inventory" shall mean all goods of any Subsidiary Grantor, whether now
owned or hereafter acquired, held for sale or lease, or furnished or to be
furnished by any Subsidiary Grantor under contracts of service, or consumed in
any Subsidiary Grantor's business, including raw materials, intermediates, work
in process, packaging materials, finished goods, semi-finished inventory, scrap
inventory, manufacturing supplies and spare parts, and all such goods that have
been returned to or repossessed by or on behalf of any Subsidiary Grantor.
"Investment Property" shall mean all Securities (whether certificated
or uncertificated), Security Entitlements, Securities Accounts, Commodity
Contracts and Commodity Accounts of any Subsidiary Grantor, whether now owned or
hereafter acquired by any Subsidiary Grantor.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Subsidiary Grantor is a
party, including those listed on Schedule III (other than those license
agreements in existence on the date hereof and listed on Schedule III and those
license agreements entered into after the date hereof, which by their terms
prohibit assignment or a grant of a security interest by such Subsidiary Grantor
as licensee thereunder).
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"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.
"Patent License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any Subsidiary Grantor or that any
Subsidiary Grantor otherwise has the right to license, is in existence, or
granting to any Subsidiary Grantor any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any third party, is in existence,
and all rights of any Subsidiary Grantor under any such agreement.
"Patents" shall mean all of the following now owned or hereafter
acquired by any Subsidiary Grantor: (a) all letters patent of the United States
or any other country, all registrations and recordings thereof, and all
applications for letters patent of the United States or any other country,
including registrations, recordings and pending applications in the United
States Patent and Trademark Office or any similar offices in any other country,
including those listed on Schedule IV, and (b) all reissues, continuations,
divisions, continuations-in-part, renewals or extensions thereof, and the
inventions disclosed or claimed therein, including the right to make, use and/or
sell the inventions disclosed or claimed therein.
"Perfection Certificate" shall mean a certificate substantially in the
form of Annex 2 hereto, completed and supplemented with the schedules and
attachments contemplated thereby, and duly executed by a Financial Officer and
the chief legal officer of AWNA.
"Proceeds" shall mean any consideration received from the sale,
exchange, license, lease or other disposition of any asset or property that
constitutes Collateral, any value received as a consequence of the possession of
any Collateral and any payment received from any insurer or other person or
entity as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property that constitutes
Collateral, and shall include (a) all cash and negotiable instruments received
by or held on behalf of the Collateral Trustee , (b) any claim of any Subsidiary
Grantor against any third party for (and the right to ▇▇▇ and recover for and
the rights to damages or profits due or accrued rising out of or in connection
with) (i) past, present or future infringement of any Patent now or hereafter
owned by any Subsidiary Grantor, or licensed under a Patent License, (ii) past,
present or future infringement or dilution of any Trademark now or hereafter
owned by any Subsidiary Grantor or licensed under a Trademark License or injury
to the goodwill associated with or symbolized by any Trademark now or hereafter
owned by any Subsidiary Grantor, (iii) past, present or future breach of any
License and (iv) past, present or future infringement of any Copyright now or
hereafter owned by any Subsidiary Grantor or licensed under a Copyright License
and (c) any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
"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
Grantor under any Loan Document in respect of any of the foregoing Persons or
their Related Parties, in their capacities as such, (g) the AWNA Trustee, for
the benefit of the holders from time to time of the AWNA Indenture Debt, (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.
"Securities" shall mean any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an enterprise
of an issuer that (a) are represented by a certificate representing a security
in bearer or registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer, (b) are one of
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a class or series or by its terms is divisible into a class or series of shares,
participations, interests or obligations and (c)(i) are, or are of a type, dealt
with or traded on securities exchanges or securities markets or (ii) are a
medium for investment and by their terms expressly provide that they are a
security governed by Article 8 of the Uniform Commercial Code.
"Securities Account" shall mean an account to which a Financial Asset
is or may be credited in accordance with an agreement under which the person
maintaining the account undertakes to treat the person for whom the account is
maintained as entitled to exercise rights that comprise the Financial Asset.
"Security Entitlements" shall mean the rights and property interests of
an Entitlement Holder with respect to a Financial Asset.
"Security Interest" shall have the meaning assigned to such term in
Section 2.01.
"Securities Intermediary" shall mean (a) a clearing corporation or (b)
a person, including a bank or broker, that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Trademark License" shall mean any written agreement, now or hereafter
in effect, granting to any third party any right to use any Trademark now or
hereafter owned by any Subsidiary Grantor or that any Subsidiary Grantor
otherwise has the right to license, or granting to any Subsidiary Grantor any
right to use any Trademark now or hereafter owned by any third party, and all
rights of any Subsidiary Grantor under any such agreement.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Subsidiary Grantor: (a) all trademarks, service marks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, trade dress, logos, other source or business identifiers,
designs and general intangibles of like nature, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith, including
registrations and registration applications in the United States Patent and
Trademark Office, any State of the United States or any similar offices in any
other country or any political subdivision thereof, and all extensions or
renewals thereof, including those listed on Schedule V, (b) all goodwill
associated therewith or symbolized thereby and (c) all other assets, rights and
interests that uniquely reflect or embody such goodwill.
SECTION 1.03. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, in full of the Obligations, each Subsidiary
Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Trustee, its successors and
assigns, for the ratable benefit of the Secured Parties, 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 Grantor's
right, title and interest in, to and under the Collateral (the "Security
Interest"). Without limiting the foregoing, the Collateral Trustee is hereby
authorized to file one or more financing statements (including fixture filings),
continuation statements, filings with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any similar
office in any other country) or other documents for the purpose of perfecting,
confirming, continuing, enforcing or protecting the Security Interest granted by
each Subsidiary Grantor, without the signature of any Subsidiary Grantor, and
naming any Subsidiary Grantor or the Subsidiary Grantors as debtors and the
Collateral Trustee as secured party.
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SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Trustee or any
other Secured Party to, or in any way alter or modify, any obligation or
liability of any Subsidiary Grantor with respect to or arising out of the
Collateral.
ARTICLE III
Representations and Warranties
The Subsidiary Grantors jointly and severally represent and warrant to
the Collateral Trustee and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Subsidiary Grantor has good and
valid rights in and title to the Collateral with respect to which it has
purported to grant a Security Interest hereunder and has full power and
authority to grant to the Collateral Trustee the Security Interest in such
Collateral pursuant hereto and to execute, deliver and perform its obligations
in accordance with the terms of this Agreement, without the consent or approval
of any other person other than any consent or approval that has been obtained.
Anything in this Agreement to the contrary notwithstanding, this
Agreement shall not constitute an agreement to assign, and the term "Collateral"
shall not include, any interest in Roosevelt Associates General Partnership,
Landfill Power LLC, Kent-Meridian Disposal Company Joint Venture, Foothills
Sanitary Landfill, Inc. and BFGSI Series 1997-A Trust if (i) such assignment,
without the consent of a third party, would constitute a breach or default
under, or cause or permit the acceleration of the obligations under, any
applicable agreement or contract and (ii) AWNA has been unable, after using
commercially reasonable efforts, to obtain such consent within 60 days after the
Effective Date.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete. Fully executed Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations containing a description of the Collateral
have been delivered to the Collateral Trustee for filing in each governmental,
municipal or other office specified in Schedule 6 to the Perfection Certificate,
which are all the filings, recordings and registrations (other than filings
required to be made in the United States Patent and Trademark Office and the
United States Copyright Office in order to perfect the Security Interest in
Collateral consisting of United States Patents, Trademarks and Copyrights) that
are necessary to publish notice of and protect the validity of and to establish
a legal, valid and perfected security interest in favor of the Collateral
Trustee (for the ratable benefit of the Secured Parties) in respect of all
Collateral in which the Security Interest may be perfected by filing, recording
or registration in the United States (or any political subdivision thereof) and
its territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements.
(b) Each Subsidiary Grantor represents and warrants that fully executed
security agreements in the form hereof and containing a description of all
Collateral, if any, consisting of Intellectual Property with respect to United
States Patents and United States registered Trademarks (and Trademarks for which
United States registration applications are pending) and United States
registered Copyrights have been delivered to the Collateral Trustee for
recording by the United States Patent and Trademark Office and the United States
Copyright Office pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C.
ss. 205 and the regulations thereunder, as applicable, and otherwise as may be
required pursuant to the laws of any other necessary jurisdiction, to protect
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the validity of and to establish a legal, valid and perfected security interest
in favor of the Collateral Trustee (for the ratable benefit of the Secured
Parties) in respect of all Collateral, if any, consisting of Patents, Trademarks
and Copyrights in which a security interest may be perfected by filing,
recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, or in any other necessary
jurisdiction, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary (other than such
actions as are necessary to perfect the Security Interest with respect to any
Collateral consisting of Patents, Trademarks and Copyrights (or registration or
application for registration thereof) acquired or developed after the date
hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
any political subdivision thereof) and its territories and possessions pursuant
to the Uniform Commercial Code or other applicable law in such jurisdictions and
(c) a security interest that shall be perfected in all Collateral, if any, in
which a security interest may be perfected upon the receipt and recording of
this Agreement with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable. The Security Interest is and shall be
prior to any other Lien on any of the Collateral, other than Liens expressly
permitted to be prior to the Security Interest pursuant to Section 6.02A of the
Credit Agreement.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Subsidiary Grantors free and clear of any Lien, except for Liens expressly
permitted pursuant to Section 6.02A of the Credit Agreement. No Subsidiary
Grantor has filed or consented to the filing of (a) any financing statement or
analogous document under the Uniform Commercial Code or any other applicable
laws covering any Collateral, (b) any assignment in which any Subsidiary Grantor
assigns any Collateral or any security agreement or similar instrument covering
any Collateral with the United States Patent and Trademark Office or the United
States Copyright Office or (c) any assignment in which any Subsidiary Grantor
assigns any Collateral or any security agreement or similar instrument covering
any Collateral with any foreign governmental, municipal or other office, which
financing statement or analogous document, assignment, security agreement or
similar instrument is still in effect, except, in each case, for Liens expressly
permitted pursuant to Section 6.02A of the Credit Agreement.
ARTICLE IV
Covenants
SECTION 4.01. Change of Name; Location of Collateral; Records; Place
of Business. (a) Each Subsidiary Grantor agrees promptly to notify the
Collateral Trustee in writing, or to ensure that such notice is given in the
first report thereafter pursuant to Section 5.15A of the Credit Agreement, of
any change (i) in its corporate name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in the
location of its chief executive office, its principal place of business, any
office in which it maintains books or records relating to Collateral owned by it
or any office or facility at which Collateral owned by it is located (including
the establishment of any such new office or facility), (iii) in its identity or
corporate structure or (iv) in its Federal Taxpayer Identification Number. Each
Subsidiary Grantor agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral
Trustee to continue at all times following such change to have a valid, legal
and perfected first priority security interest in all the Collateral. Each
Subsidiary Grantor agrees promptly to notify the Collateral Trustee if any
material portion of the Collateral owned or held by such Subsidiary Grantor is
damaged or destroyed.
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(b) Each Subsidiary Grantor agrees to maintain, at its own cost and
expense, such complete and accurate records with respect to the Collateral owned
by it as is consistent with its current practices and in accordance with such
prudent and standard practices used in industries that are the same as or
similar to those in which such Subsidiary Grantor is engaged, but in any event
to include complete accounting records indicating all payments and proceeds
received with respect to any part of the Collateral, and, at such time or times
as the Collateral Trustee may reasonably request, promptly to prepare and
deliver to the Collateral Trustee a duly certified schedule or schedules in form
and detail satisfactory to the Collateral Trustee showing the identity, amount
and location of any and all Collateral.
SECTION 4.02. Periodic Certification. Each year, at the time of
delivery of annual financial statements with respect to the preceding fiscal
year pursuant to clause (a) of Section 5.04A of the Credit Agreement, AWNA shall
deliver to the Collateral Trustee a certificate executed by a Financial Officer
of Allied Waste and AWNA setting forth the information required pursuant to
Sections 1, 2, 8, 9, 10 and 11 of the Perfection Certificate or confirming that
there has been no change in such information since the date of such certificate
or the date of the most recent certificate delivered pursuant to this Section
4.02. Each certificate delivered pursuant to this Section 4.02 shall identify in
the format of Schedule II, III, IV or V, as applicable, all Intellectual
Property of any Subsidiary Grantor in existence on the date thereof and not then
listed on such Schedules or previously so identified to the Collateral Trustee.
SECTION 4.03. Protection of Security. Each Subsidiary Grantor shall, at
its own cost and expense, take any and all actions necessary to defend title to
the Collateral against all persons and to defend the Security Interest of the
Collateral Trustee in the Collateral and the priority thereof against any Lien
not expressly permitted pursuant to Section 6.02A of the Credit Agreement.
SECTION 4.04. Further Assurances. Each Subsidiary Grantor agrees, at
its own expense, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and documents and take all such actions as the
Collateral Trustee may from time to time request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies created
hereby, including the payment of any fees and taxes required in connection with
the execution and delivery of this Agreement, the granting of the Security
Interest and the filing of any financing statements (including fixture filings)
or other documents in connection herewith or therewith. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any promissory note or other instrument, such note or instrument shall be
immediately pledged and delivered to the Collateral Trustee, duly endorsed in a
manner satisfactory to the Collateral Trustee.
Without limiting the generality of the foregoing, each Subsidiary
Grantor hereby authorizes the Collateral Trustee, with prompt notice thereof to
the Subsidiary Grantors, to supplement this Agreement by supplementing Schedule
II, III, IV or V hereto or adding additional schedules hereto to specifically
identify any asset or item that may constitute Copyrights, Licenses, Patents or
Trademarks; provided, however, that any Subsidiary Grantor shall have the right,
exercisable within 10 days after it has been notified by the Collateral Trustee
of the specific identification of such Collateral, to advise the Collateral
Trustee in writing of any inaccuracy of the representations and warranties made
by such Subsidiary Grantor hereunder with respect to such Collateral. Each
Subsidiary Grantor agrees that it will use its best efforts to take such action
as shall be necessary in order that all representations and warranties hereunder
shall be true and correct with respect to such Collateral within 30 days after
the date it has been notified by the Collateral Trustee of the specific
identification of such Collateral.
SECTION 4.05. Inspection and Verification. The Collateral Trustee and
such persons as the Collateral Trustee may reasonably designate shall have the
right, at the Subsidiary Grantors' own cost and expense, to inspect the
Collateral, all records related thereto (and to make extracts and copies from
such records) and the premises upon which any of the Collateral is located, to
discuss the Subsidiary Grantors' affairs with the officers of the Subsidiary
Grantors and their independent accountants and to verify under reasonable
procedures, in accordance with Section 5.07A of the Credit Agreement, the
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validity, amount, quality, quantity, value, condition and status of, or any
other matter relating to, the Collateral, including, in the case of Accounts or
Collateral in the possession of any third person, by contacting Account Debtors
or the third person possessing such Collateral for the purpose of making such a
verification; provided, that so long as no Default has occurred and is
continuing, such inspections and discussions shall be at reasonable times and
with reasonable notice and shall occur no more than three times per year. The
Collateral Trustee shall have the absolute right to share any information it
gains from such inspection or verification with any Secured Party (it being
understood that any such information shall be deemed to be "Information" subject
to the provisions of Section 9.12 of the Credit Agreement).
SECTION 4.06. Taxes; Encumbrances. At its option, the Collateral
Trustee or any Secured Party may discharge past due taxes, assessments, charges,
fees, Liens, security interests or other encumbrances at any time levied or
placed on the Collateral and not permitted pursuant to Section 6.02A of the
Credit Agreement, and may pay for the maintenance and preservation of the
Collateral to the extent any Subsidiary Grantor fails to do so as required by
the Credit Agreement or this Agreement, and each Subsidiary Grantor jointly and
severally agrees to reimburse the Collateral Trustee or such Secured Party on
demand for any payment made or any expense incurred by the Collateral Trustee or
such Secured Party pursuant to the foregoing authorization; provided, however,
that nothing in this Section 4.06 shall be interpreted as excusing any
Subsidiary Grantor from the performance of, or imposing any obligation on the
Collateral Trustee or any Secured Party to cure or perform, any covenants or
other promises of any Subsidiary Grantor with respect to taxes, assessments,
charges, fees, liens, security interests or other encumbrances and maintenance
as set forth herein or in the other Loan Documents.
SECTION 4.07. Assignment of Security Interest. If at any time any
Subsidiary Grantor shall take a security interest in any property of an Account
Debtor or any other person to secure payment and performance of an Account, such
Subsidiary Grantor shall promptly assign such security interest to the
Collateral Trustee. Such assignment need not be filed of public record unless
necessary to continue the perfected status of the security interest against
creditors of and transferees from the Account Debtor or other person granting
the security interest.
SECTION 4.08. Continuing Obligations of the Subsidiary Grantors. Each
Subsidiary Grantor shall remain liable to observe and perform all the conditions
and obligations to be observed and performed by it under each contract,
agreement or instrument relating to the Collateral, all in accordance with the
terms and conditions thereof, and each Subsidiary Grantor jointly and severally
agrees to indemnify and hold harmless the Collateral Trustee and the Secured
Parties from and against any and all liability for such performance.
SECTION 4.09. Use and Disposition of Collateral. None of the Subsidiary
Grantors shall make or permit to be made an assignment, pledge or hypothecation
of the Collateral or shall grant any other Lien in respect of the Collateral,
except as expressly permitted by Section 6.02A of the Credit Agreement. None of
the Subsidiary Grantors shall make or permit to be made any transfer of the
Collateral and each Subsidiary Grantor shall remain at all times in possession
of the Collateral owned by it, except that (a) Inventory may be sold in the
ordinary course of business and (b) unless and until the Collateral Trustee or
the Agent shall notify the Subsidiary Grantors that an Event of Default shall
have occurred and be continuing and that during the continuance thereof the
Subsidiary Grantors shall not sell, convey, lease, assign, transfer or otherwise
dispose of any Collateral (which notice may be given by telephone if promptly
confirmed in writing), the Subsidiary Grantors may use and dispose of the
Collateral in any lawful manner not inconsistent with the provisions of this
Agreement, the Credit Agreement or any other Loan Document. Without limiting the
generality of the foregoing, each Subsidiary Grantor agrees that it shall not
permit any Inventory to be in the possession or control of any warehouseman,
bailee, agent or processor at any time unless such warehouseman, bailee, agent
or processor shall have been notified of the Security Interest and shall have
agreed in writing to hold the Inventory subject to the Security Interest and the
instructions of the Collateral Trustee and to waive and release any Lien held by
it with respect to such Inventory, whether arising by operation of law or
otherwise.
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SECTION 4.10. Limitation on Modification of Accounts. None of the
Subsidiary Grantors will, without the Collateral Trustee's prior written
consent, grant any extension of the time of payment of any of the Accounts
Receivable, compromise, compound or settle the same for less than the full
amount thereof, release, wholly or partly, any person liable for the payment
thereof or allow any credit or discount whatsoever thereon, other than
extensions, credits, discounts, compromises or settlements granted or made in
the ordinary course of business and consistent with its current practices and in
accordance with such prudent and standard practices used in industries that are
the same as or similar to those in which such Subsidiary Grantor is engaged.
SECTION 4.11. Insurance. The Subsidiary Grantors, at their own expense,
shall maintain or cause to be maintained insurance covering physical loss or
damage to the Inventory and Equipment in accordance with Section 5.02A of the
Credit Agreement. Each Subsidiary Grantor irrevocably makes, constitutes and
appoints the Collateral Trustee (and all officers, employees or agents
designated by the Collateral Trustee) as such Subsidiary Grantor's true and
lawful agent (and attorney-in-fact) for the purpose, during the continuance of
an Event of Default, of making, settling and adjusting claims in respect of
Collateral under policies of insurance, endorsing the name of such Subsidiary
Grantor on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and
decisions with respect thereto. In the event that any Subsidiary Grantor at any
time or times shall fail to obtain or maintain any of the policies of insurance
required hereby or to pay any premium in whole or part relating thereto (or
shall fail to be self-insured as permitted by the Credit Agreement), the
Collateral Trustee or any Secured Party may, without waiving or releasing any
obligation or liability of the Subsidiary Grantors hereunder or any Event of
Default, in its sole discretion, obtain and maintain such policies of insurance
and pay such premium and take any other actions with respect thereto as the
Collateral Trustee or such Secured Party deems advisable. All sums disbursed by
the Collateral Trustee or such Secured Party in connection with this Section
4.11, including reasonable attorneys' fees, court costs, expenses and other
charges relating thereto, shall be payable, upon demand, by the Subsidiary
Grantors to the Collateral Trustee or such Secured Party and shall be additional
Obligations secured hereby.
SECTION 4.12. Legend. Each Subsidiary Grantor shall legend, in form and
manner satisfactory to the Collateral Trustee, its Accounts Receivable and its
books, records and documents evidencing or pertaining thereto with an
appropriate reference to the fact that such Accounts Receivable have been
assigned to the Collateral Trustee for the benefit of the Secured Parties and
that the Collateral Trustee has a security interest therein.
SECTION 4.13. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Subsidiary Grantor agrees that it will not, nor will it
permit any of its licensees to, do any act, or omit to do any act, whereby any
Patent that is material to the conduct of such Subsidiary Grantor's business may
become invalidated or dedicated to the public, and agrees that it shall continue
to ▇▇▇▇ any products covered by a Patent with the relevant patent number as
necessary and sufficient to establish and preserve its maximum rights under
applicable patent laws.
(b) Each Subsidiary Grantor (either itself or through its licensees or
its sublicensees) will, for each Trademark material to the conduct of such
Subsidiary Grantor's business, (i) maintain such Trademark in full force free
from any claim of abandonment or invalidity for non-use, (ii) maintain the
quality of products and services offered under such Trademark, (iii) display
such Trademark with notice of Federal or foreign registration to the extent
necessary and sufficient to establish and preserve its maximum rights under
applicable law and (iv) not knowingly use or knowingly permit the use of such
Trademark in violation of any third party rights.
(c) Each Subsidiary Grantor (either itself or through licensees) will,
for each work covered by a material Copyright, continue to publish, reproduce,
display, adopt and distribute the work with appropriate copyright notice as
necessary and sufficient to establish and preserve its maximum rights under
applicable copyright laws.
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(d) Each Subsidiary Grantor shall notify the Collateral Trustee
immediately if it knows or has reason to know that any Patent, Trademark or
Copyright material to the conduct of its business may become abandoned, lost or
dedicated to the public, or of any adverse determination or development
(including the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, United States
Copyright Office or any court or similar office of any country) regarding such
Subsidiary Grantor's ownership of any Patent, Trademark or Copyright, its right
to register the same, or to keep and maintain the same.
(e) In no event shall any Subsidiary Grantor, either itself or through
any agent, employee, licensee or designee, file an application for any Patent,
Trademark or Copyright (or for the registration of any Trademark or Copyright)
with the United States Patent and Trademark Office, United States Copyright
Office or any office or agency in any political subdivision of the United States
or in any other country or any political subdivision thereof, unless it promptly
informs the Collateral Trustee, and, upon request of the Collateral Trustee,
executes and delivers any and all agreements, instruments, documents and papers
as the Collateral Trustee may request to evidence the Collateral Trustee's
security interest in such Patent, Trademark or Copyright, and each Subsidiary
Grantor hereby appoints the Collateral Trustee as its attorney-in-fact to
execute and file such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power, being coupled with an
interest, is irrevocable.
(f) Each Subsidiary Grantor will take all necessary steps that are
consistent with the practice in any proceeding before the United States Patent
and Trademark Office, United States Copyright Office or any office or agency in
any political subdivision of the United States or in any other country or any
political subdivision thereof, to maintain and pursue each material application
relating to the Patents, Trademarks and/or Copyrights (and to obtain the
relevant grant or registration) and to maintain each issued Patent and each
registration of the Trademarks and Copyrights that is material to the conduct of
any Subsidiary Grantor's business, including timely filings of applications for
renewal, affidavits of use, affidavits of incontestability and payment of
maintenance fees, and, if consistent with good business judgment, to initiate
opposition, interference and cancellation proceedings against third parties.
(g) In the event that any Subsidiary Grantor has reason to believe that
any Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Subsidiary Grantor's business has been or is about to be
infringed, misappropriated or diluted by a third party, such Subsidiary Grantor
promptly shall notify the Collateral Trustee and shall, if consistent with good
business judgment, promptly ▇▇▇ for infringement, misappropriation or dilution
and to recover any and all damages for such infringement, misappropriation or
dilution, and take such other actions as are appropriate under the circumstances
to protect such Collateral.
(h) Upon and during the continuance of an Event of Default, each
Subsidiary Grantor shall use its best efforts to obtain all requisite consents
or approvals by the licensor of each Copyright License, Patent License or
Trademark License to effect the assignment of all of such Subsidiary Grantor's
right, title and interest thereunder to the Collateral Trustee or its designee.
ARTICLE V
Remedies
SECTION 5.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each Subsidiary Grantor agrees to deliver
each item of Collateral to the Collateral Trustee on demand, and it is agreed
that the Collateral Trustee shall have the right to take any of or all the
following actions at the same or different times: (a) with respect to any
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all such
Collateral by the applicable Subsidiary Grantors to the Collateral Trustee, or
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to license or sublicense, whether general, special or otherwise, and whether on
an exclusive or non-exclusive basis, any such Collateral throughout the world on
such terms and conditions and in such manner as the Collateral Trustee shall
determine (other than in violation of any then-existing licensing arrangements
to the extent that waivers cannot be obtained), and (b) with or without legal
process and with or without prior notice or demand for performance, to take
possession of the Collateral and without liability for trespass to enter any
premises where the Collateral may be located for the purpose of taking
possession of or removing the Collateral and, generally, to exercise any and all
rights afforded to a secured party under the Uniform Commercial Code or other
applicable law. Without limiting the generality of the foregoing, each
Subsidiary Grantor agrees that the Collateral Trustee shall have the right,
subject to the mandatory requirements of applicable law, to sell or otherwise
dispose of all or any part of the Collateral, 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
Grantor, and each Subsidiary Grantor hereby waives (to the extent permitted by
law) all rights of redemption, stay and appraisal that such Subsidiary Grantor
now has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted.
The Collateral Trustee shall give the Subsidiary Grantors 10 days'
written notice (which each Subsidiary Grantor 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 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 (if any) of such sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety
or in separate parcels, as the Collateral Trustee may (in its sole and absolute
discretion) determine. The Collateral Trustee shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The
Collateral Trustee may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Trustee until
the sale price is paid by the purchaser or purchasers thereof, but the
Collateral Trustee shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public (or, to the extent permitted by law, private) sale made pursuant to this
Section, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on
the part of any Subsidiary Grantor (all said rights being also hereby waived and
released to the extent permitted by law), 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 such Secured Party from any Subsidiary Grantor as a credit
against the purchase price, and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to any Subsidiary Grantor therefor. For purposes hereof, a
written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Trustee shall be free to carry out
such sale pursuant to such agreement and no Subsidiary Grantor shall 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
13
herein conferred upon it, the Collateral Trustee may proceed by a suit or suits
at law or in equity to foreclose this Agreement 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.
SECTION 5.02. Application of Proceeds. 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 Grantor 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 Grantors, 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
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 5.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Trustee to exercise rights and remedies under
this Article at such time as the Collateral Trustee shall be lawfully entitled
to exercise such rights and remedies, each Subsidiary Grantor hereby grants to
the Collateral Trustee an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to the Subsidiary Grantors) to
use, license or sub-license any of the Collateral consisting of Intellectual
Property now owned or hereafter acquired by such Subsidiary Grantor, and
wherever the same may be located, and including in such license reasonable
access to all media in which any of the licensed items may be recorded or stored
and to all computer software and programs used for the compilation or printout
thereof. The use of such license by the Collateral Trustee shall be exercised,
at the option of the Collateral Trustee, upon the occurrence and during the
continuation of an Event of Default; provided that any license, sub-license or
other transaction entered into by the Collateral Trustee in accordance herewith
shall be binding upon the Subsidiary Grantors notwithstanding any subsequent
cure of an Event of Default.
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ARTICLE VI
Miscellaneous
SECTION 6.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 8.03 of the Collateral Trust Agreement. All communications
and notices hereunder to any Subsidiary Grantor shall be given to it at its
address or telecopy number set forth on Schedule I, with a copy to 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.
SECTION 6.02. Security Interest Absolute. All rights of the Collateral
Trustee hereunder, the Security Interest and all obligations of the Subsidiary
Grantors 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, the AWNA Indenture, the BFI
Indenture or any other agreement or instrument, (c) any exchange, release or
non-perfection of any Lien on other collateral, or any release or amendment or
waiver of or consent under or departure from any guarantee, securing or
guaranteeing 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 Grantor in respect of the Obligations or this Agreement.
SECTION 6.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Subsidiary Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the making by the Senior Lenders of the Senior
Loans, and the execution and delivery to the Senior Lenders of any notes
evidencing such Senior Loans, regardless of any investigation made by the Senior
Lenders or on their behalf, and shall continue in full force and effect until
this Agreement shall terminate.
SECTION 6.04. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Subsidiary Grantor when a counterpart hereof executed
on behalf of such Subsidiary Grantor 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 Grantor
and the Collateral Trustee and their respective successors and assigns, and
shall inure to the benefit of such Subsidiary Grantor, the Collateral Trustee
and the other Secured Parties and their respective successors and assigns,
except that no Subsidiary Grantor shall have the right to assign or transfer its
rights or obligations hereunder or any interest herein or in the Collateral (and
any such assignment or transfer shall be void) except as expressly contemplated
by this Agreement or the Credit Agreement. This Agreement shall be construed as
a separate agreement with respect to each Subsidiary Grantor and may be amended,
modified, supplemented, waived or released with respect to any Subsidiary
Grantor without the approval of any other Subsidiary Grantor and without
affecting the obligations of any other Subsidiary Grantor hereunder.
SECTION 6.05. Successors and Assigns; Collateral Trustee in its
Individual Capacity. (a) 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 Grantor or the Collateral Trustee that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) The Collateral Trustee may resign and a successor Collateral
15
Trustee may be appointed in the manner provided in the Collateral Trust
Agreement. Upon the acceptance of any appointment as a collateral trustee by a
successor collateral trustee, that successor collateral trustee shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring collateral trustee, as secured party under this Agreement, and
the retiring collateral trustee shall thereupon be discharged from its duties
and obligations under this Agreement. After any retiring collateral trustee's
resignation, the provisions of this Agreement shall inure to its benefit as to
any actions taken or omitted to be taken by it under this Agreement while it was
Collateral Trustee.
(c) The Collateral Trustee and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with Allied
Waste 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.
SECTION 6.06. Collateral Trustee's Fees and Expenses; Indemnification.
(a) Each Subsidiary Grantor jointly and severally agrees to pay upon demand to
the Collateral Trustee the amount of any and all reasonable expenses, including
the reasonable fees, disbursements and other charges of its counsel and of any
experts or agents, which the Collateral Trustee may incur in connection with (i)
the administration of this Agreement (including the customary fees and charges
of the Collateral Trustee for any audits conducted by it or on its behalf with
respect to the Accounts Receivable or Inventory), (ii) the custody or
preservation of, or the sale of, collection from or other realization upon any
of the Collateral, (iii) the exercise, enforcement or protection of any of the
rights of the Collateral Trustee hereunder or (iv) the failure of any Subsidiary
Grantor to perform or observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents or the Collateral Trust Agreement, each Subsidiary Grantor
jointly and severally agrees to indemnify the BFI Indenture Trustee, the AWNA
Indenture Trustee, the Collateral Trustee and the other Indemnitees under the
Credit Agreement that are Senior Lenders or Related Parties thereof against, and
hold each of them harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable fees, disbursements and
other charges of counsel, incurred by or asserted against any of them arising
out of, in any way connected with, or as a result of, the execution, delivery or
performance of this Agreement or any claim, litigation, investigation or
proceeding relating hereto or to the Collateral, 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 willful misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby. The provisions of this Section 6.06 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, the repayment of any of the Senior Loans, 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,
the Agent or any Lender. All amounts due under this Section 6.06 shall be
payable on written demand therefor.
SECTION 6.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.08. 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
16
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, of the Agent, the Issuing Banks, and the Senior Lenders under the
other Loan Documents, of the BFI Indenture Trustee under the BFI Indenture, and
of the AWNA Indenture Trustee under 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 the Collateral Trust Agreement or
consent to any departure by any Subsidiary Grantor 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 to or demand on any Subsidiary Grantor in
any case shall entitle such Subsidiary Grantor or any other Subsidiary Grantor
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 an agreement or agreements in writing
entered into by the Collateral Trustee and the Subsidiary Grantor or Subsidiary
Grantors 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 6.09. 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 AND
THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.09.
SECTION 6.10. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 6.11 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 but one contract (subject to Section 6.04),
and shall become effective as provided in Section 6.04. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 6.12. Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 6.13. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Grantor 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 the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
17
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, the Agent, the Issuing Banks, any Senior Lender, the BFI
Trustee or the AWNA Trustee 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 Grantor or its properties in the courts of
any jurisdiction.
(b) Each Subsidiary Grantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which 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 6.01. Nothing in this
Agreement will affected the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 6.14. Termination. This Agreement and the Security Interest
(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) 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
Grantors, at the Subsidiary Grantors' expense, all Uniform Commercial Code
termination statements and similar documents which the Subsidiary Grantors shall
reasonably request to evidence such termination. Any execution and delivery of
termination statements or documents pursuant to this Section 6.14 shall be
without recourse to or warranty by the Collateral Trustee. A Subsidiary Grantor
shall automatically be released from its obligations hereunder and the Security
Interest in the Collateral of such Subsidiary Grantor shall be automatically
released in the event that all the capital stock of such Subsidiary Grantor
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 Grantor or any Collateral
after the occurrence and during the continuance of a Triggering Event (as
defined in the Collateral Trust Agreement) shall be subject to the prior
approval of the Collateral Trustee. The Security Interest shall automatically
terminate with respect to Collateral sold, transferred or disposed of in
accordance with this Agreement and the Credit Agreement, and the Collateral
Trustee shall execute and deliver to the Subsidiary Grantors, at the Subsidiary
Grantors' expense, all Uniform Commercial Code partial termination statements
and similar documents which the Subsidiary Grantors shall reasonably request to
evidence such termination. Such termination statements shall, upon the
reasonable prior request of the Subsidiary Grantors, be delivered prior to, and
held in escrow pending, such sale, transfer or disposition.
SECTION 6.15. Additional Subsidiary Grantors. Upon execution and
delivery by the Collateral Agent and a Subsidiary of AWNA of an instrument in
the form of Annex 3 hereto, such Subsidiary shall become a Subsidiary Grantor
hereunder with the same force and effect as if originally named as a Subsidiary
Grantor herein. The execution and delivery of any such instrument shall not
require the consent of any Subsidiary Grantor hereunder. The rights and
18
obligations of each Subsidiary Grantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Subsidiary Grantor as a party to
this Agreement.
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:
EACH OF THE SUBSIDIARY GRANTORS
LISTED ON SCHEDULE I HERETO,
by
--------------------------------
Name:
Title: Authorized Officer
THE CHASE MANHATTAN BANK, as
Collateral Trustee
by
--------------------------------
Name:
Title: Authorized Officer
19
SCHEDULE I
SUBSIDIARY GRANTORS
SCHEDULE II
COPYRIGHTS
None.
SCHEDULE III
LICENSES
None.
SCHEDULE IV
PATENTS
None.
SCHEDULE V
TRADEMARKS
None.
SCHEDULE I
to Supplement No. __ to the
Collateral Security Agreement
LOCATION OF COLLATERAL
----------------------
Description Location
----------- --------
Annex 1 to the
Shared Collateral Security Agreement
[Form Of]
PERFECTION CERTIFICATE
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 Allied Waste Industries, Inc. ("Allied Waste"),
Allied Waste North America, Inc. ("AWNA"), the lenders from time to time party
thereto (the "Lenders"), and The Chase Manhattan Bank, as administrative agent
and collateral agent for the Lenders, (b) the Parent Guarantee Agreement dated
as of July 30, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Parent Guarantee Agreement"), between Allied Waste and the Collateral
Agent, (c) 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 Guarantors, certain other
Subsidiaries of Allied Waste and the Collateral Agent and (d) the Shared
Collateral Security Agreement dated as of July 30, 1999 (the "Shared Collateral
Security Agreement"), among AWNA, the Subsidiaries of AWNA listed on Schedule I
thereto ("Subsidiary Grantors") and the Collateral Trustee. Capitalized terms
used but not defined herein have the meanings assigned thereto in the Shared
Collateral Security Agreement or the Credit Agreement, as applicable.
The undersigned, a Financial Officer and a Legal Officer,
respectively, of AWNA, hereby certify to the Collateral Trustee and each other
Secured Party as follows:
1. Names. (a) The exact corporate name of each Subsidiary Grantor,
as such name appears in its respective certificate of incorporation, is as
follows:
(b) Set forth below is each other corporate name each Subsidiary
Grantor has had in the past five years, together with the date of the relevant
change:
(c) Except as set forth in Schedule 1 hereto, no Subsidiary Grantor
has changed its identity or corporate structure in any way within the past five
years. Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization. If any such change has occurred, include
in Schedule 1 the information required by Sections 1 and 2 of this certificate
as to each acquiree or constituent party to a merger or consolidation.
(d) The following is a list of all other names (including trade names
or similar appellations) used by each Subsidiary Grantor or any of its divisions
or other business units in connection with the conduct of its business or the
ownership of its properties at any time during the past five years:
(e) Set forth below is the Federal Taxpayer Identification Number of
each Subsidiary Grantor:
2. Current Locations. (a) The chief executive office of each Subsidiary
Grantor is located at the address set forth opposite its name below:
Subsidiary Grantor Mailing Address County State
(b) Set forth below opposite the name of each Subsidiary Grantor are all
locations where such Subsidiary Grantor maintains any books or records relating
to any Accounts Receivable (with each location at which chattel paper, if any,
is kept being indicated by an "*"):
Subsidiary Grantor Mailing Address County State
------------------ --------------- ------ -----
(c) Set forth below opposite the name of each Subsidiary Grantor are all
the locations where such Subsidiary Grantor maintains any Collateral not
identified above:
Subsidiary Grantor Mailing Address County State
------------------ --------------- ------ -----
(d) Set forth below opposite the name of each Subsidiary Grantor are
all the places of business of such Subsidiary Grantor not identified in
paragraphs (a), (b) and (c) above:
Subsidiary Grantor Mailing Address County State
------------------ --------------- ------ -----
(e) Set forth below opposite the name of each Subsidiary Grantor are
the names and addresses of all Persons other than such Subsidiary Grantor that
have possession of any of the Collateral of such Subsidiary Grantor:
Subsidiary Grantor Mailing Address County State
------------------ --------------- ------ -----
3. Unusual Transactions. All Accounts Receivable have been originated by
the Subsidiary Grantors and all Inventory has been acquired by the Subsidiary
Grantors in the ordinary course of business.
4. File Search Reports. Attached hereto as Schedule 4(A) are true copies
of file search reports from the Uniform Commercial Code filing offices where
filings described in Section 3.23 of the Credit Agreement are to be made.
Attached hereto as Schedule 4(B) is a true copy of each financing statement or
other filing identified in such file search reports.
5. UCC Filings. Duly signed financing statements on Form UCC-1 in
substantially the form of Schedule 5 hereto have been prepared for filing in the
Uniform Commercial Code filing office in each jurisdiction where a Subsidiary
Grantor has Collateral as identified in Section 2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule
setting forth, with respect to the filings described in Section 5 above, each
filing and the filing office in which such filing is to be made.
7. Filing Fees. All filing fees and taxes payable in connection with
the filings described in Section 5 above have been paid.
8. Stock Ownership. Attached hereto as Schedule 8 is a true and
correct list of all the duly authorized, issued and outstanding stock,
partnership interests, limited liability company interests or other equity
2
interests of BFI and each Subsidiary of BFI and the record and beneficial owners
of such equity interests. Also set forth on Schedule 8 is each equity Investment
of BFI and each Subsidiary of BFI that represents 50% or less of the equity of
the entity in which such investment was made.
9. Debt Instruments. Attached hereto as Schedule 9 is a true and
correct list of all promissory notes and other evidences of indebtedness held by
each Subsidiary Grantor that are required to be pledged under the Shared
Collateral Pledge Agreement, including all intercompany notes between Subsidiary
Grantors.
10. Advances. Attached hereto as Schedule 10 is (a) a true and correct
list of all advances made by any Subsidiary Grantor to any other Subsidiary
Grantor (other than those identified in Schedule 8), which advances will be on
and after the date hereof evidenced by one or more intercompany notes pledged to
the Collateral Trustee under the Shared Collateral Pledge Agreement, and (b) a
true and correct list of all unpaid intercompany transfers of goods sold and
delivered by or to any Subsidiary Grantors.
11. Intellectual Property. (a) Attached hereto in proper form for
filing with the United States Patent and Trademark Office is a schedule setting
forth all of each Subsidiary Grantor's Patents, Patent Licenses, Trademarks and
Trademark Licenses, including the name of the registered owner, the registration
number and the expiration date of each such Patent, Patent License, Trademark
and Trademark License.
(b) Attached hereto in proper form for filing with the United States
Copyright Office is a schedule setting forth all of each Subsidiary Grantor's
Copyrights and Copyright Licenses, including the name of the registered owner,
the registration number and the expiration date of each Copyright or Copyright
License owned by any Subsidiary Grantor.
IN WITNESS WHEREOF, the undersigned have duly executed this
certificate on this [ ] day of July, 1999.
ALLIED WASTE NORTH AMERICA, INC.,
by
------------------------------
Name:
Title: [Financial Officer]
by
------------------------------
Name:
Title: [Legal Officer]
3
Annex 2 to the
Shared Collateral Security Agreement
SUPPLEMENT NO. ___ dated as of , to the
Shared Collateral Security Agreement dated as of July
30, 1999 (the "Shared Collateral Security
Agreement"), among Allied Waste North America, Inc.,
a Delaware corporation ("AWNA"), each Subsidiary of
AWNA listed on Schedule I thereto (each such
Subsidiary individually a "Subsidiary Grantor" and
collectively, the "Subsidiary Grantors") and The
Chase Manhattan Bank, a New York banking corporation,
as collateral trustee (in such capacity, the
"Collateral Trustee") for the Secured Parties (as
defined herein).
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 Allied Waste North America, Inc., Allied Waste
Industries, Inc., the lenders from time to time party thereto (the "Lenders"),
and The Chase Manhattan Bank, 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 Security
Agreement and the Credit Agreement.
C. The Subsidiary Grantors have entered into the Shared Collateral
Security Agreement in order to induce the Senior Lenders to make Senior Loans
and other extensions of credit under the Credit Agreement. Section 6.15 of the
Shared Collateral Security Agreement provides that additional Subsidiaries of
AWNA may become Subsidiary Grantors under the Shared Collateral Security
Agreement by execution and delivery of an instrument in the form of this
Supplement The undersigned Subsidiary (the "New Subsidiary Grantor") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Subsidiary Grantor under the Shared Collateral Security
Agreement in order to induce the Senior Lenders to make additional Senior Loans
other extensions of credit and as consideration for other extensions of credit
under the Credit Agreement.
Accordingly, the Collateral Trustee and the New Subsidiary Grantor
agree as follows:
SECTION 1. In accordance with Section 6.15 of the Shared Collateral
Security Agreement, the New Subsidiary Grantor by its signature below becomes a
Subsidiary Grantor under the Shared Collateral Security Agreement with the same
force and effect as if originally named therein as a Subsidiary Grantor and the
New Subsidiary Grantor hereby (a) agrees to all the terms and provisions of the
Shared Collateral Security Agreement applicable to it as a Subsidiary Grantor
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Subsidiary Grantor thereunder are true and correct on
and as of the date hereof. In furtherance of the foregoing, the New Subsidiary
Grantor, as security for the payment and performance in full of the Obligations
(as defined in the Shared Collateral Security 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 Grantor's right, title and interest in and to
the Collateral (as defined in the Shared Collateral Security Agreement) of the
New Subsidiary Grantor. Each reference to a "Subsidiary Grantor" in the Shared
Collateral Security Agreement shall be deemed to include the New Subsidiary
Grantor. The Shared Collateral Security Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Subsidiary Grantor 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 (and by
different parties hereto on different 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 Grantor 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 Grantor hereby represents and warrants
that (a) set forth on Schedule I attached hereto is a true and correct schedule
of the location of any and all Collateral of the New Subsidiary Grantor and (b)
set forth under its signature hereto, is the true and correct location of the
chief executive office of the New Subsidiary Grantor.
SECTION 5. Except as expressly supplemented hereby, the Shared
Collateral Security 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, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Shared Collateral Security Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 6.01 of the Shared Collateral Security
Agreement. All communications and notices hereunder to the New Subsidiary
Grantor shall be given to it in care of AWNA as set forth in the Shared
Collateral Security Agreement.
SECTION 9. The New Subsidiary Grantor 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.
2
IN WITNESS WHEREOF, the New Subsidiary Grantor and the Collateral
Trustee have duly executed this Supplement to the Shared Collateral Security
Agreement as of the day and year first above written.
[Name Of New Subsidiary Grantor],
by
----------------------------
Name:
Title:
Address:
THE CHASE MANHATTAN BANK, as Collateral
Trustee,
by
------------------------------
Name:
Title:
Address:
3
SCHEDULE I: SHARED COLLATERAL SECURITY AGREEMENT
-------------------------------------------------
BFI GRANTORS
Attwoods 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 North America, Inc.
BFI Waste Systems of New Jersey, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Financial Services, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Gas Services, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Chemical Services, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc. (DE)
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc. (MA)
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of California, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Connecticut, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Florida, Inc.
1
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Hawaii, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of New York, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Ohio, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Tennessee, Inc.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Services, Inc.
CECOS International, Inc.
International Disposal Corp. of California
Lake ▇▇▇▇▇▇ Landfill, Inc.
Maui Disposal Co., Inc.
New ▇▇▇▇▇▇ Landfill Company, Inc.
Newco Waste Systems of New Jersey, Inc.
Risk Services, Inc.
VHG, Inc.
▇▇▇▇▇▇ ▇▇▇▇ Development Company
Woodlake Sanitary Service, Inc
2
SCHEDULE II: SHARED COLLATERAL SECURITY AGREEMENT
-------------------------------------------------
COPYRIGHTS
------------
NONE.
SCHEDULE III: SHARED COLLATERAL SECURITY AGREEMENT
--------------------------------------------------
LICENSES
--------
NONE.
SCHEDULE IV: SHARED COLLATERAL SECURITY AGREEMENT
-------------------------------------------------
PATENTS
-------
NONE.
SCHEDULE V: SHARED COLLATERAL SECURITY AGREEMENT
------------------------------------------------
TRADEMARKS
------------
NONE.
SCHEDULE II
COPYRIGHTS
None.
SCHEDULE III
LICENSES
None.
SCHEDULE IV
PATENTS
None.
SCHEDULE V
TRADEMARKS
None.