EXHIBIT 10.12
EXECUTION COPY
SHARED COLLATERAL SECURITY AGREEMENT dated
as of July 30, 1999 and amended and restated as of
April 29, 2003 (as amended, supplemented or otherwise
modified from time to time, this "Agreement"), among
ALLIED WASTE NORTH AMERICA, INC., a Delaware
corporation ("AWNA"), each Subsidiary of AWNA listed
on Schedule I hereto (each such Subsidiary
individually, a "Subsidiary Grantor" and
collectively, the "Subsidiary Grantors") and JPMORGAN
CHASE BANK, a New York banking corporation ("JPMCB"),
as collateral trustee (in such capacity, the
"Collateral Trustee") for the Secured Parties (as
defined herein).
Reference is made to (a) the Credit Agreement dated as of July
21, 1999 and amended and restated as of April 29, 2003 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among AWNA,
Allied Waste Industries, Inc. ("Allied Waste"), the lenders from time to time
party thereto (the "Lenders"), and JPMCB, as administrative agent and collateral
agent for the Lenders (in such capacities, the "Agent"), (b) the Subsidiary
Guarantee Agreement dated as of July 30, 1999 and amended and restated as of
April 29, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Subsidiary Guarantee Agreement"), among the Subsidiary Grantors,
certain other Subsidiaries of Allied Waste and the Agent, (c) the Restated
Indenture dated as of September 1, 1991 (as amended, supplemented or otherwise
modified from time to time, the "BFI Indenture") between ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Industries, Inc. ("BFI") and JPMCB, as successor trustee to First City
Texas-Houston, N.A. (together with any successor, in such capacity, the "BFI
Trustee"), and (d) the Indenture dated as of December 23, 1998 (as supplemented
and amended from time to time, the "AWNA Senior Note Indenture") among AWNA,
Allied Waste and U.S. Bank Trust National Association, as trustee (together with
any successor, in such capacity, the "AWNA Trustee"). Reference is also made to
the Shared Collateral Security Agreement dated as of July 30, 1999 (as amended,
supplemented or otherwise modified from time to time prior to the Restatement
Effective Date, the "Original Shared Collateral Security Agreement") among the
Subsidiaries listed on Schedule I thereto and the Subsidiaries that became
parties thereto as provided in Section 6.15 thereof (collectively, the "Original
Grantors") and the Collateral Trustee, pursuant to which the Original Grantors
agreed to secure the Credit Agreement Senior Obligations (as defined in the
Original Shared Collateral Security Agreement). The Original Grantors and the
Collateral Trustee now wish to amend and restate the Original Shared Collateral
Security Agreement as set forth herein to secure the obligations of the Borrower
under the Credit Agreement. The Original Shared Collateral Security Agreement
shall be amended and restated in its entirety in the form hereof as of the
Restatement Effective Date.
The Lenders have agreed to make 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 Lenders under the Credit Agreement
pursuant to the Subsidiary Guarantee Agreement to secure the Credit Agreement
Obligations (as hereinafter defined).
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Pursuant to the provisions of the BFI Indenture, BFI may not,
and may not permit any subsidiary of BFI (if such subsidiary constitutes a
Restricted Subsidiary (as defined in the BFI Indenture)) to, secure the Credit
Agreement Obligations without providing that the BFI Indenture Debt (as
hereinafter defined) be secured equally and ratably with such obligations.
Pursuant to the provisions of the AWNA Senior Note 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 Senior Note 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 Lenders' obligations to
make 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 as of July 30, 1999 and amended and restated as
of April 29, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Collateral Trust Agreement") among 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 herein but not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement and the Subsidiary Guarantee Agreement, as applicable. All capitalized
terms used in this Agreement and defined in the New York UCC (as defined herein)
and not otherwise defined in this Agreement, the Credit Agreement or the
Subsidiary Guarantee Agreement shall have the meanings specified therein; the
term "instrument" shall have the meaning specified in Article 9 of the New York
UCC. The rules of construction and interpretation specified in Section 1.03 of
the Credit Agreement also apply to this Agreement.
SECTION 1.02. Definition of Certain Terms Used Herein. As used
herein, the following terms shall have the following meanings:
"Accounts Receivable" shall mean all Accounts and all right,
title and interest in any returned goods, together with all rights, titles,
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.
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"Agent" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"AWNA Indenture Debt" shall mean the senior notes issued by
AWNA prior to July 30, 1999 under the AWNA Senior Note Indenture and the 2001
Senior Notes.
"AWNA Senior Note Obligations" 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 July 30, 1999 under the BFI Indenture. 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 have the meaning assigned to such term in
Section 2.01 of this Agreement.
"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 hereto.
"Credit Agreement 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 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
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bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of AWNA to the 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 Lenders or relating to the Loans under or pursuant to the Credit Agreement
and the other Loan Documents, (c) the due and punctual payment and performance
of all the covenants, agreements, obligations and liabilities of each Loan Party
to the Lenders under or pursuant to this Agreement and the other Loan Documents
and (d) unless otherwise agreed upon in writing by the applicable party thereto,
all obligations, monetary or otherwise, of any Loan Party under each Hedging
Agreement entered into with any counterparty that was (i) a Lender or an
Affiliate of a Lender at the time such Hedging Agreement was entered into or
(ii) a lender or an Affiliate of a lender under the Original Credit Agreement at
the time such Hedging Agreement was entered into; provided, however, that the
obligations under this clause (d)(ii) shall include only those obligations under
any Hedging Agreement that was in effect prior to the Restatement Effective
Date, and only in the form as in effect on the Restatement Effective Date, and
shall not include any obligations under such Hedging Agreement to the extent
such Hedging Agreement is extended, amended or renewed on or after the
Restatement Effective Date.
"Event of Default" shall mean an "Event of Default" under the
Credit Agreement, the AWNA Senior Note Indenture, the BFI Indenture or any 2001
Indenture (as such term is defined in each such agreement or indenture).
"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.
"License" shall mean any Patent License, Trademark License,
Copyright License or other license or sublicense agreement to which any
Subsidiary Grantor is a party, including those listed on Schedule III hereto
(except for those that prohibit assignment or a grant of a security interest by
such Subsidiary Grantor as licensee thereunder).
"New York UCC" shall mean the Uniform Commercial Code as from
time to time in effect in the State of New York.
"Obligations" shall mean, without duplication, (i) the Credit
Agreement 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 Senior Note Indenture or the BFI Indenture after July 30, 1999 except for
the 2001 Senior Notes issued pursuant to the 2001 Indentures.
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"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 the equivalent
thereof in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office or the equivalent
thereof in 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.
"Proceeds" shall mean all "Proceeds" as defined in Section
9-102 of the New York UCC, and shall include, without limitation, (a) all cash
and negotiable instruments received by or held on behalf of the Collateral Agent
in respect of, or in connection with, the disposition of any Collateral, (b) any
claim of any Grantor against any third party for (and the right to ▇▇▇ and
recover for and the rights to damages or profits due or accrued arising out of
or in connection with) (i) past, present or future infringement of any Patent
now or hereafter owned by any Grantor, or licensed under a Patent License, (ii)
past, present or future infringement or dilution of any Trademark now or
hereafter owned by any 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 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 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 Lenders (including the
Tranche A Lenders), (b) the Agent, (c) the Collateral Trustee, (d) the Issuing
Banks, (e) each counterparty to a Hedging Agreement entered into with a Loan
Party if such counterparty was (i) a Lender or an Affiliate of a Lender at the
time such Hedging Agreement was entered into or (ii) a lender or an Affiliate of
a lender under the Original Credit Agreement but not a Lender under the Credit
Agreement; provided that any counterparty described in this clause (e)(ii) shall
(A) be a Secured Party to the extent, and only to the extent, that such Hedging
Agreement was entered into prior to, and in effect on, the Restatement Effective
Date, and (B) remain a Secured Party only until such Hedging Agreement expires,
is extended, amended or renewed or is otherwise terminated, (f) the
beneficiaries of each indemnification obligation undertaken by AWNA or any
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 (other than the 2001 Senior
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Notes), (h) the BFI Trustee, for the benefit of the holders from time to time of
the BFI Indenture Debt, (i) the 2001 Indenture Trustee, for the benefit of the
holders from time to time of the 2001 Senior Notes and (j) the successors and
permitted assigns of each of the foregoing.
"Security Interest" shall have the meaning assigned to such
term in Section 2.01 of this Agreement.
"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.
"Trustee" means the AWNA Trustee, the 2001 Indenture Trustee
or the BFI Trustee, as applicable.
"2001 Indenture Trustee" means the trustee under any 2001
Indenture.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. (a) As security for the
payment or performance, as the case may be, in full of the Obligations, each
Subsidiary Grantor hereby assigns and pledges 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 (the "Security
Interest") in, all right, title and interest in or to any and all of the
following assets and properties now owned or at any time hereafter acquired by
such Subsidiary Grantor or in which such Subsidiary Grantor now has or at any
time in the future may acquire any right, title or interest (collectively, the
"Collateral"):
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(i) all Accounts Receivable;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Intellectual Property;
(x) all Investment Property;
(xi) all Letter-of-credit rights;
(xii) commercial tort claims, if any;
(xiii) all books and records pertaining to the Collateral;
and
(xiv) to the extent not otherwise included above, all Proceeds
and products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing; provided,
however, that notwithstanding anything herein to the contrary, in no event shall
the security interest granted hereunder attach to, and Collateral shall not
include (a) any lease, license, contract, property rights or agreement to which
the Grantor is a party or any its rights or interests thereunder if the grant of
such security interest shall constitute or result in (i) the abandonment,
invalidation or unenforceability of any right, title or interest of the Grantor
therein or (ii) in a breach or termination, pursuant to the terms of, or a
default under, any such lease, license, contract, property rights or agreement
except, in each case, to the extent that the UCC invalidates such provisions, or
(b) any motor vehicles evidenced by a certificate of title. Without limiting the
generality of the foregoing, the security interest granted hereunder shall not
attach to, and Collateral shall not include any interest in (a) Roosevelt
Associates General Partnership, Kent-Meridian Disposal Company Joint Venture,
Foothills Sanitary Landfill, Inc. and BFGSI Series 1997-A Trust (or any assets
or property of any of them) or (b) Congress Development Co., Ecosort, L.L.C.,
▇▇▇▇▇▇ Resources Recovery Facility, LLC and Evergreen National Indemnity Company
if (i) such grant of a security interest, 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 to which any such
Person is a party and (ii) AWNA has been unable, after using commercially
reasonable efforts, to obtain such consent within 60 days after the Restatement
Effective Date.
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(b) Each Subsidiary Grantor hereby irrevocably authorizes the
Collateral Trustee at any time and from time to time to file in any relevant
jurisdiction any initial financing statements (including fixture filings) and
amendments thereto with respect to the Collateral that contain the information
required by Article 9 of the Uniform Commercial Code of each applicable
jurisdiction for the filing of any financing statement or amendment, including
whether such Subsidiary Grantor is an organization, the type of organization and
any organizational identification number issued to such Subsidiary Grantor. Each
Subsidiary Grantor agrees to provide such information to the Collateral Trustee
promptly upon request.
Each Subsidiary Grantor also ratifies its authorization for
the Collateral Trustee to file in any relevant jurisdiction any initial
financing statements or amendments thereto with respect to the Collateral that
were filed prior to the Restatement Effective Date.
The Collateral Trustee is further authorized to file 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) such other
documents as may be necessary or advisable 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.
(c) 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
Each Subsidiary Grantor represents and warrants to the
Collateral Trustee and the Secured Parties that:
SECTION 3.01. Title and Authority. Such 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.
SECTION 3.02. Filings. (a) The Perfection Certificate has been
duly prepared, completed and executed and the information set forth therein,
including the exact legal name of such Subsidiary Grantor, is correct and
complete. Fully authorized Uniform Commercial Code financing statements
(including fixture filings, as applicable)
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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 D
to the Perfection Certificate (or specified by notice from AWNA to the Agent in
the case of filings, recordings, or registrations required by Section 5.10 of
the Credit Agreement) 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 (other than motor vehicles) 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) Such 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. Section 261, 15 U.S.C. Section 1060 or 17
U.S.C. Section 205 and the regulations thereunder, as applicable, and otherwise
as may be required pursuant to the laws of any other necessary jurisdiction, to
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, 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 (other than motor vehicles) 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
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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 6.02 of the Credit
Agreement.
SECTION 3.04. Absence of Other Liens. The Collateral of such
Subsidiary Grantor is owned by such Subsidiary Grantor free and clear of any
Lien, except for Liens expressly permitted pursuant to Section 6.02 of the
Credit Agreement. Such Subsidiary Grantor has not 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 such 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 such 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 6.02 of the Credit Agreement. Such Subsidiary Grantor does not hold any
commercial tort claim except as indicated on the Perfection Certificate.
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 5.13(a) 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 its
identity, type of organization, corporate structure or jurisdiction of
incorporation or organization or (iii) in its Federal Taxpayer Identification
Number or other identification number given by its jurisdiction of incorporation
or organization. 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 (subject to Liens permitted by Section 6.02 of the Credit Agreement).
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.
(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,
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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 Section 5.04(a) 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, 11 and 12 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, any Patent, any License, any
registrations or applications for registration of any Copyright, or any
registrations or applications for registration of any Trademark 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 6.02 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. Each
Subsidiary Grantor further agrees that it will not take any action or permit any
action to be taken that would cause any membership interest in a limited
liability company or partnership interest pledged hereunder to become a
"security" as defined in Article 8 of the Uniform Commercial Code of any State
or the District of Columbia, unless such membership interest or partnership
interest has been certificated and pledged to the Collateral Trustee pursuant to
the Shared Collateral Pledge Agreement.
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
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hereto or adding additional schedules hereto to specifically identify any asset
or item that may constitute any Patent, any License, any registrations or
applications for registration of any Copyright, or any registrations or
applications for registration of any Trademark; 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 5.07 of the Credit Agreement,
the 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 6.02 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.
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SECTION 4.07. 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 4.08. 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 6.02 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, (b) Equipment may be in the temporary
possession of third parties in connection with the use of such Equipment in the
ordinary course of business and (c) unless and until the Collateral Trustee or
the Agent shall notify (which notice may be given by telephone if promptly
confirmed in writing) the Subsidiary Grantors that an Event of Default shall
have occurred and be continuing, and during the continuance thereof, 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.
SECTION 4.09. 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 4.10. 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 5.02 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
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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 in
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 4.10, 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 4.11. 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 its
licensees or its sublicensees) 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.
(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 its right to keep and maintain the same.
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(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 its 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
such 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 cancelation 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 such 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 the occurrence 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.
SECTION 4.12. Other Actions. In order to further insure the
attachment, perfection and priority of, and the ability of the Collateral
Trustee to enforce, the Collateral Trustee's security interest in the
Collateral, each Subsidiary Grantor agrees, in each case at such Subsidiary
Grantor's own expense, to take the following actions with respect to the
following Collateral:
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(a) Instruments. If any Subsidiary Grantor shall at any time
hold or acquire any instruments (other than checks issued by or to such
Grantor in the ordinary course of business and any other instruments
issued by or to such Grantor in an individual amount not in excess of
$50,000), such Subsidiary Grantor shall forthwith deliver the same to
the Collateral Trustee, accompanied by such instruments of transfer or
assignment duly executed in blank as the Collateral Trustee reasonably
may from time to time specify.
(b) Investment Property. Except to the extent otherwise
provided under the Shared Collateral Pledge Agreement, if any
Subsidiary Grantor shall at any time hold or acquire any Certificated
Securities, such Subsidiary Grantor shall forthwith endorse, assign and
deliver the same to the Collateral Trustee, accompanied by such
instruments of transfer or assignment duly executed in blank as the
Collateral Trustee may from time to time specify. If any Securities now
or hereafter acquired by any Subsidiary Grantor are uncertificated and
are issued to such Subsidiary Grantor or its nominee directed by the
issuer thereof, such Subsidiary Grantor shall immediately notify the
Collateral Trustee thereof and, at the Collateral Trustee's request and
option, pursuant to an agreement in form and substance satisfactory to
the Collateral Trustee, either (a) cause the issuer to agree to comply
with instructions from the Collateral Trustee as to such Securities,
without further consent of any Subsidiary Grantor or such nominee, or
(b) arrange for the Collateral Trustee to become the registered owner
of the Securities. If any Securities, whether certificated or
uncertificated, or other Investment Property now or hereafter acquired
by any Subsidiary Grantor are held by such Subsidiary Grantor or its
nominee through a Securities Intermediary or Commodity Intermediary,
such Subsidiary Grantor shall immediately notify the Collateral Trustee
thereof and, at the Collateral Trustee's request and option, pursuant
to an agreement in form and substance satisfactory to the Collateral
Trustee, either (i) cause such Securities Intermediary or (as the case
may be) Commodity Intermediary to agree to comply with entitlement
orders or other instructions from the Collateral Trustee to such
Securities Intermediary as to such Securities or other Investment
Property, or (as the case may be) to apply any value distributed on
account of any Commodity Contract as directed by the Collateral Trustee
to such Commodity Intermediary, in each case without further consent of
any Subsidiary Grantor or such nominee, or (ii) in the case of
Financial Assets or other Investment Property held through a Securities
Intermediary, arrange for the Collateral Trustee to become the
entitlement holder with respect to such Investment Property, with the
Subsidiary Grantor being permitted, only with the consent of the
Collateral Trustee to exercise rights to withdraw or otherwise deal
with such Investment Property. The provisions of this paragraph shall
not apply to any Financial Assets credited to a Securities Account for
which the Collateral Trustee is the Securities Intermediary.
(c) Electronic Chattel Paper and Transferable Records. If any
Subsidiary Grantor at any time holds or acquires an interest in any
electronic chattel paper or any "transferable record," as that term is
defined in Section 201 of the Federal Electronic Signatures in Global
and National Commerce Act, or in Section 16 of
17
the Uniform Electronic Transactions Act as in effect in any relevant
jurisdiction, in each case in excess of $100,000, such Subsidiary
Grantor shall promptly notify the Collateral Trustee thereof and, at
the request of the Collateral Trustee, shall take such action as the
Collateral Trustee may reasonably request to vest in the Collateral
Trustee control under New York UCC Section 9-105 of such electronic
chattel paper or control under Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or, as the case may be,
Section 16 of the Uniform Electronic Transactions Act, as so in effect
in such jurisdiction, of such transferable record.
(d) Letter-of-credit Rights. If any Subsidiary Grantor is at
any time a beneficiary under a letter of credit in excess of $100,000
now or hereafter issued in favor of such Subsidiary Grantor, such
Subsidiary Grantor shall promptly notify the Collateral Trustee thereof
and, at the request and option of the Collateral Trustee, such
Subsidiary Grantor shall use its commercially reasonable efforts to,
pursuant to an agreement in form and substance satisfactory to the
Collateral Trustee, either (i) arrange for the issuer of such letter of
credit to consent to an assignment to the Collateral Trustee of the
proceeds of any drawing under the letter of credit or (ii) arrange for
the Collateral Trustee to become the transferee beneficiary of the
letter of credit, with the Collateral Trustee agreeing, in each case,
that the Proceeds of any drawing under the letter of credit are to be
paid to the applicable pledgor unless an Event of Default has occurred
and is continuing.
(e) Commercial Tort Claims. If any Subsidiary Grantor shall at
any time hold or acquire a commercial tort claim in excess of $100,000,
such Subsidiary Grantor shall promptly notify the Collateral Trustee
thereof in a writing signed by such Subsidiary Grantor including a
summary description of such claim and grant to the Collateral Trustee
in such writing a security interest therein and in the proceeds
thereof, all upon the terms of this Agreement, with such writing to be
in form and substance reasonably satisfactory to the Collateral
Trustee.
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
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
18
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. With respect to any Collateral constituting Investment Property,
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 any Collateral
constituting securities 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 Borrower and each
applicable Subsidiary Grantor 10 days' written notice (which each Subsidiary
Grantor agrees is reasonable notice within the meaning of Section 9-612 of the
New York UCC 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)
19
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 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. To the extent permitted by applicable law, any sale
pursuant to the provisions of this Section 5.01 shall be deemed to conform to
the commercially reasonable standards as provided in Section 9-610(b) of the New
York UCC or its equivalent in other jurisdictions.
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, any other Loan
Document 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
Obligations (the amounts so applied to be distributed among the holders
of the Credit Agreement Obligations pro rata in accordance with the
amounts of the Credit Agreement 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.
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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 any such proceeds, moneys or balances by 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
with an unaffiliated third party in accordance herewith shall be binding upon
the Subsidiary Grantors notwithstanding any subsequent cure of such Event of
Default.
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 9.01 of the Credit 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 hereto, 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
21
AWNA Senior Note Indenture, the BFI Indenture, any 2001 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 in respect of this Agreement (other than the indefeasible
payment in full of all the monetary Obligations).
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 or any other Loan Document shall be
considered to have been relied upon by the Secured Parties and shall survive the
execution and delivery of the Loan Documents and the making by the Lenders of
any Loans, and the execution and delivery to the Lenders of any notes evidencing
such Loans, regardless of any investigation made by the Lenders or on their
behalf, and shall continue in full force until this Agreement shall terminate.
SECTION 6.04. Binding Effect; Several Agreement. This
Agreement shall become effective as to any Subsidiary Grantor on the Restatement
Effective Date, and thereafter shall be binding upon such Subsidiary Grantor and
the Collateral Trustee and their successors and assigns, and shall inure to the
benefit of such Subsidiary Grantor, the Collateral Trustee and the other Secured
Parties and their 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 successors and
assigns.
(b) The Collateral Trustee may resign and a successor
Collateral 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
22
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 "Lender" and "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 a
single counsel in New York and such other local and special counsel as may be
reasonably necessary in connection therewith and of any experts or agents, 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 2001 Indenture Trustee, the Collateral
Trustee and the other Indemnitees (as defined in Section 9.03 of the Credit
Agreement) that are 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 of a single counsel in New York and such
other local and special counsel as may be reasonably necessary in connection
therewith, other charges and disbursements, incurred by or asserted against any
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 Loans, the invalidity or
unenforceability of any term or provision
23
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. Collateral Trustee Appointed Attorney-in-Fact.
Each Subsidiary Grantor hereby appoints the Collateral Trustee the
attorney-in-fact of such Subsidiary Grantor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument
that the Collateral Trustee may deem necessary or advisable to accomplish the
purposes hereof, which appointment is irrevocable and coupled with an interest;
provided that the Collateral Trustee shall have such right, only upon the
occurrence and during the continuance of an Event of Default, which right shall
include the full power of substitution either in the Collateral Trustee's name
or in the name of such Grantor upon the occurrence and during the continuance of
an Event of Default of which the Collateral Trustee shall have received written
notice from the Agent or a Trustee under the applicable Debt Instrument (as
defined in the Shared Collateral Pledge Agreement), with full power of
substitution either in the Collateral Trustee's name or in the name of such
Subsidiary Grantor, to ask for, demand, ▇▇▇ for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue of
any Collateral, to endorse checks, drafts, orders and other instruments for the
payment of money payable to such Subsidiary Grantor representing any interest or
dividend or other distribution payable in respect of the Collateral or any part
thereof or on account thereof and to give full discharge for the same, to
settle, compromise, prosecute or defend any action, claim or proceeding with
respect thereto, and to sell, assign, endorse, pledge, transfer and to make any
agreement respecting, or otherwise deal with, the same; provided, that nothing
herein contained shall be construed as requiring or obligating the Collateral
Trustee to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Collateral Trustee, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Collateral Trustee and the other Secured Parties
shall be accountable only for amounts actually received as a result of the
exercise of the powers granted to them herein, and neither they nor their
officers, directors, employees or agents shall be responsible to any Subsidiary
Grantor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
SECTION 6.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.09. Waivers; Amendment. (a) No failure or delay of
the Collateral Trustee, the Agent, any Issuing Bank or any Lender in exercising
any power or right hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Trustee
hereunder, of the Agent, the Issuing Banks, and the Lenders under the other Loan
Documents, of the BFI Indenture Trustee under the BFI Indenture, of the
24
AWNA Indenture Trustee under the AWNA Senior Note Indenture and of the 2001
Indenture Trustee under any ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provision 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. Without limiting the generality of the foregoing, the making of
a Loan or issuance of a Letter of Credit under the Credit Agreement shall not be
construed as a waiver of any Default under the Credit Agreement. No notice 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 6.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 6.10.
SECTION 6.11. 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 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 6.12. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when
25
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 6.13. 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 6.14. 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 any other Loan Document, 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 proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Collateral Trustee, the Agent, any
Issuing Bank, any 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 Senior Note Indenture, any 2001 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
any other Loan Document in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
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 or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 6.15. 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 BFI Indenture Debt shall have been paid to the holders thereof
and (b) that is ten days after the provisions of 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 monetary
Credit Agreement Obligations have been indefeasibly paid in full,
26
the Commitments have expired or been terminated, the LC Exposure has been
reduced to zero, the Issuing Banks have no further commitment to issue Letters
of Credit under the Credit Agreement 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 6.15 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 of the Equity Interests 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 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 6.16. Additional Subsidiary Grantors. Upon execution
and delivery by the Collateral Trustee and a Subsidiary of AWNA of an instrument
in the form of Annex 1 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
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.
27
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:
JPMORGAN CHASE BANK, as Collateral
Trustee,
By ___________________________
Name:
Title: Authorized Officer
SCHEDULE I
SUBSIDIARY GRANTORS
SCHEDULE II
COPYRIGHTS
SCHEDULE III
LICENSES
SCHEDULE IV
PATENTS
SCHEDULE V
TRADEMARKS
Annex 1 to the
Shared Collateral Security Agreement
SUPPLEMENT NO. __ dated as of (this
"Supplement"), to the Shared Collateral Security
Agreement dated as of July 30, 1999 and amended and
restated as of April 29, 2003 (as amended,
supplemented or otherwise modified from time to time,
the "Shared Collateral Security Agreement"), among
Allied Waste North America, Inc., a Delaware
corporation ("AWNA"), each Subsidiary of AWNA listed
on Schedule I thereto or becoming a party thereto
pursuant to Section 6.16 thereof (each such
Subsidiary individually, a "Subsidiary Grantor" and
collectively, the "Subsidiary Grantors") and JPMorgan
Chase Bank, a New York banking corporation ("JPMCB"),
as collateral trustee (in such capacity, the
"Collateral Trustee") for the Secured Parties (as
defined herein).
A. Reference is made to (a) the Credit Agreement dated as of
July 21, 1999 and amended and restated as of April 29, 2003 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among AWNA, Allied Waste Industries, Inc. ("Allied Waste"), the lenders from
time to time party thereto (the "Lenders"), and JPMCB, as administrative agent
and collateral agent for the Lenders (in such capacities, the "Agent").
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the 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 Lenders to make Loans and
other extensions of credit under the Credit Agreement. Section 6.16 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 Lenders to make additional Loans and 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 6.16 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
2
thereunder are true and correct in all material respects 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 "Subsidiary Grantor" in the Shared Collateral
Security Agreement shall be deemed, if applicable, 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 legal name
of the New Subsidiary Grantor, its jurisdiction of formation and, if such New
Subsidiary Grantor is not a "registered organization" under the New York UCC,
the location of its chief executive office.
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
3
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to the New 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 (or
cause to be reimbursed) the Collateral Trustee for its reasonable out-of-pocket
expenses in connection with this Supplement, including the reasonable fees,
other charges and disbursements of counsel for the Collateral Trustee.
4
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:
JPMORGAN CHASE BANK, as Collateral
Trustee,
By _____________________________
Name:
Title:
SCHEDULE I
To Supplement No. ___ to the
Collateral Security Agreement
COLLATERAL
Description