1
Exhibit 4.23
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (this "First
Supplemental Indenture") among ALLIED WASTE NORTH AMERICA, INC., a Delaware
corporation ("AWNA"), having its principal place of business at 00000 Xxxxx
Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and ALLIED WASTE
INDUSTRIES, INC., a Delaware corporation ("ALLIED WASTE"), having its principal
place of business at 00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000 (collectively, the "Guarantors"), XXXXXXXX-XXXXXX INDUSTRIES,
INC., a Delaware corporation (the "Company"), having its principal office at 000
X. Xxxxxxxx, Xxxxxxx, Xxxxx 00000, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(the "Trustee"), having its principal corporate trust office at 000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, as successor in interest to FIRST CITY,
TEXAS-HOUSTON, NATIONAL ASSOCIATION.
WITNESSETH:
WHEREAS, the Company and the Trustee executed and delivered a Restated
Indenture dated as of September 1, 1991 (the "Indenture"), to provide for the
issuance by the Company from time to time of debt securities evidencing its
unsecured debentures, notes or other evidence of indebtedness (the
"Securities");
WHEREAS, pursuant to that certain Amended and Restated Agreement and
Plan of Merger dated as of May 21, 1999 (the "Merger Agreement"), among the
Company, Allied Waste and AWIN I Acquisition Corporation, a Delaware corporation
and a wholly-owned subsidiary of Allied Waste, the Company has agreed to merge
with Allied Waste (the "Merger");
WHEREAS, the Board of Directors of the Company and the Shareholders of
the Company have approved the Merger;
WHEREAS, upon consummation of the Merger, the Company will become a
wholly-owned subsidiary of AWNA, a wholly-owned subsidiary of Allied Waste;
WHEREAS, pursuant to the resolutions adopted by the Boards of Directors
of AWNA and Allied Waste, AWNA and Allied Waste have duly authorized the
guarantee of the Company's obligations with respect to the Securities, as
provided herein (the "Guarantee"); and
WHEREAS, pursuant to the resolutions adopted by the Board of Directors
of the Company, the Company has duly authorized the execution and delivery of
this First Supplemental Indenture to provide for the Guarantee.
2
NOW THEREFORE, for and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of Series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
All capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 102. Provisions of General Application.
All rules of construction and other provisions of general application
set forth in Article One of the Indenture are hereby incorporated herein by
reference.
SECTION 103. Effectiveness.
This First Supplemental Indenture shall become effective upon the
effectiveness of the Merger without any further action by the parties hereto.
ARTICLE TWO
GUARANTEE
SECTION 201. Guarantee.
Each Guarantor joint and severally guarantees, as a primary obligor and
not merely as a surety, the due and punctual payment of (a) 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
Securities, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise and (b) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Company to the Holders of Securities under
the Indenture (all the monetary and other obligations referred to in the
preceding clauses (a) and (b) being collectively called the "Obligations").
Except as expressly provided in the Indenture or any Supplemental Indenture to
which the Guarantors are parties or any Security, each Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in part, without
- 2 -
3
notice to or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any Obligation.
SECTION 202. Obligations Not Waived.
To the fullest extent permitted by applicable law, each Guarantor
waives presentment to, demand of payment from, and protest to the Company of,
any of the Obligations, and also waives notice of acceptance of its guarantee
and notice of protest for nonpayment. To the fullest extent permitted by
applicable law, the obligations of each Guarantor hereunder shall not be
affected by (a) the failure of the Trustee or any Holder of a Security to assert
any claim or demand or to enforce or exercise any right or remedy against the
Company or any other guarantor of the Obligations under the provisions of the
Indenture, any Supplemental Indenture or any Security or otherwise or (b) any
rescission, waiver, amendment or modification of, or any release from any of the
terms or provisions of this First Supplemental Indenture, the Indenture, any
other Supplemental Indenture, any Security or any other agreement, including
with respect to any other guarantor of the Obligations.
SECTION 203. Guarantee of Payment.
Each Guarantor further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by the Trustee or any Holder of a Security to any
of the security held for payment of the Obligations or to any balance of any
deposit account or credit on the books of the Trustee or any Holder of a
Security in favor of the Company or any other person.
SECTION 204. No Discharge or Diminishment of Guarantee.
The obligations of the Guarantors hereunder shall not be subject to any
reduction, limitation, impairment of termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of the Obligations,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Trustee or any Holder of a Security to assert any claim or demand or to enforce
any remedy under the Indenture, any Supplemental Indenture or any Security or
any other agreement, by any waiver or modification of any provision of any
thereof, by any default, failure or delay, willful or otherwise in the
performance of the Obligations, or any other act or omission that may or might
in any manner or to any extent vary the risk of such Guarantor or that would
otherwise operate as a discharge of such Guarantor as a matter of law or equity
(other than the indefeasible payment in full in cash of all the Obligations).
- 3 -
4
SECTION 205. Defenses of Borrower Waived.
To the fullest extent permitted by applicable law, each Guarantor
waives any defense based on or arising out of any defense of the Company or the
unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Company, other than the final
and indefeasible payment in full in cash of the Obligations. The Trustee and the
Holders of Securities may, at their election, foreclose on any security held by
one or more of them by one or more judicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with the Company or any other
guarantor or exercise any other right or remedy available to them against the
Company or any other guarantor, without affecting or impairing in any way the
liability of the Guarantor hereunder except to the extent the Obligations have
been fully, finally and indefeasibly paid in cash. To the fullest extent
permitted by applicable law, the Guarantor waives any defense arising out of any
such election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of the Guarantor against the Company or any other guarantor, as the
case may be, or any security.
SECTION 206. Agreement to Pay; Subrogation.
In furtherance of the foregoing and not in limitation of any other
right that the Trustee or any Holder of a Security has at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Company to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid to the Trustee or such
other Holders of Securities as designated thereby in cash the amount of such
unpaid Obligations. Upon payment by the Guarantor of any sums to the Trustee or
any Holder of a Security as provided above, all rights of the Guarantor against
the Company arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash, of all the Obligations. In addition, any indebtedness of the
Company now or hereafter held by each Guarantor is hereby subordinated in right
of payment to the prior payment in full in cash of the Obligations. If any
amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any
such indebtedness of the Company, such amount shall be held in trust for the
benefit of the Holders of Securities and shall forthwith be paid to the Trustee
to be credited against the payment of the Obligations, whether matured or
unmatured, in accordance with the terms of the Indenture, any Supplemental
Indenture and the Securities.
- 4 -
5
SECTION 207. Information.
Each Guarantor assumes all responsibility for being and keeping itself
informed of the Company's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks that the Guarantor assumes and incurs
hereunder, and agrees that none of the Trustee or the Holders of Securities will
have any duty to advise the Guarantors of information known to it or any of them
regarding such circumstances or risks.
SECTION 208. Termination.
The Guarantee made hereunder (a) shall terminate when all the
Obligations have been indefeasibly paid in full in cash and (b) shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any Holder of a Security or any Guarantor upon the bankruptcy or
reorganization of the Company, any Guarantor or otherwise.
ARTICLE THREE
PARTICULAR REPRESENTATIONS AND COVENANTS
OF THE COMPANY AND THE GUARANTORS
SECTION 301. Authority of the Company.
The Company represents and warrants that it is duly authorized under
the laws of the State of Delaware and all other applicable laws to execute,
deliver and perform this First Supplemental Indenture, and all corporate action
on its part required for the execution, delivery and performance of this First
Supplemental Indenture by the Company has been duly and effectively taken.
SECTION 302. Authority of the Guarantors.
Each Guarantor represents and warrants that it is duly authorized under
the laws of the State of Delaware and all other applicable laws to execute,
deliver and perform this First Supplemental Indenture, and all corporate action
on its part required for the execution, delivery and performance of this First
Supplemental Indenture by such Guarantor has been duly and effectively taken.
SECTION 303. Truth of Recitals and Statements of the Company.
The Company represents and warrants that the recitals of fact and
statements contained in this First Supplemental Indenture with respect to it are
true and correct in all material respects, and that the recitals of fact and
statements contained in all certificates
- 5 -
6
and other documents furnished by the Company in connection herewith will be true
and correct in all material respects.
SECTION 304. Truth of Recitals and Statements of the Guarantors.
Each Guarantor represents and warrants that the recitals of fact and
statements contained in this First Supplemental Indenture with respect to it are
true and correct in all material respects, and that the recitals of fact and
statements contained in all certificates and other documents furnished by such
Guarantor in connection herewith will be true and correct in all material
respects.
ARTICLE FOUR
CONCERNING THE TRUSTEE
SECTION 401. Acceptance of Trusts.
The Trustee accepts the trusts hereunder and agrees to perform the
same, but only upon the terms and conditions set forth in the Indenture and in
this First Supplemental Indenture, to all of which the Company agrees and the
Holders of Securities at any time outstanding by their acceptance thereof agree.
SECTION 402. No Responsibility of the Trustee for Recitals, etc.
The recitals and statements contained in this First Supplemental
Indenture shall be taken as the recitals and statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this First
Supplemental Indenture.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 501. Binding Agreement; Assignments.
Whenever in this First Supplemental Indenture 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 each Guarantor that are contained in this First Supplemental Indenture
shall bind and inure to the benefit of each party hereto and their respective
successors and assigns.
SECTION 502. Relation to Indenture.
The provisions of this First Supplemental Indenture shall become
effective immediately upon the execution and delivery hereof. This First
Supplemental Indenture and all the terms and provisions herein contained shall
form a part of the Indenture as fully and with the same effect as if all such
terms and provisions had been set forth in the
- 6 -
7
Indenture and each and every term and condition contained in the Indenture shall
apply to this First Supplemental Indenture with the same force and effect as if
the same were in this First Supplemental Indenture set forth in full, with such
omissions, variations and modifications thereof as may be appropriate to make
each such term and condition conform to this First Supplemental Indenture. The
Indenture is hereby ratified and confirmed and shall remain and continue in full
force and effect in accordance with the terms and provisions thereof, as
supplemented and amended by this First Supplemental Indenture and the Indenture
and this First Supplemental Indenture shall be read, taken and construed
together as one instrument.
SECTION 503. Counterparts.
This First Supplemental Indenture may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, EACH OF XXXXXXXX-XXXXXX INDUSTRIES, INC., ALLIED
WASTE INDUSTRIES, INC. AND ALLIED WASTE NORTH AMERICA, INC. has caused this
First Supplemental Indenture to be executed in its corporate name by its
President or one of its Vice Presidents or its Treasurer and its corporate seal
to be affixed hereunto, and the same to be attested, by its Secretary or an
Assistant Secretary, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, has caused
this First Supplemental Indenture to be executed in its corporate name by one of
its Vice Presidents or Assistant Vice Presidents and its corporate seal to be
affixed hereunto, and the same to be attested by one of its Vice Presidents or
Assistant Vice Presidents, all as of the date and year first written above.
- 7 -
8
XXXXXXXX-XXXXXX INDUSTRIES, INC.
(CORPORATE SEAL)
Attest: By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
ALLIED WASTE INDUSTRIES, INC.
(CORPORATE SEAL)
Attest: By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
ALLIED WASTE NORTH AMERICA, INC.
(CORPORATE SEAL)
Attest: By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as Trustee
(CORPORATE SEAL)
Attest: By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President and
Trust Officer
- 8 -
0
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
BEFORE ME, the undersigned authority, on this day personally appeared,
G. Xxxxxx Xxxxxxxx, Xx., the Treasurer of XXXXXXXX-XXXXXX INDUSTRIES, INC.,
known to me to be the person whose name is subscribed to the above and foregoing
instrument of writing, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated,
and as the act and deed of said corporation; and, being by me duly sworn, did
depose and say that he is G. Xxxxxx Xxxxxxxx, Xx., and Treasurer of said
corporation, that he knows the seal of said corporation, that the seal affixed
to said instrument is such corporate seal, that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 30th day of July, 1999.
/s/ Xxxx Xxxxxxxxx
--------------------------------
My commission expires:
March 9, 2000
--------------------------------
00
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
BEFORE ME, the undersigned authority, on this day personally appeared,
G. Xxxxxx Xxxxxxxx, Xx., the Treasurer of ALLIED WASTE INDUSTRIES, INC., known
to me to be the person whose name is subscribed to the above and foregoing
instrument of writing, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated,
and as the act and deed of said corporation; and, being by me duly sworn, did
depose and say that he is G. Xxxxxx Xxxxxxxx, Xx., and Treasurer of said
corporation, that he knows the seal of said corporation, that the seal affixed
to said instrument is such corporate seal, that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 30th day of July, 1999.
/s/ Xxxx Xxxxxxxxx
--------------------------------
My commission expires:
March 9, 2000
-------------
00
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
BEFORE ME, the undersigned authority, on this day personally appeared,
G. Xxxxxx Xxxxxxxx, Xx., the Treasurer of ALLIED WASTE NORTH AMERICA, INC.,
known to me to be the person whose name is subscribed to the above and foregoing
instrument of writing, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated,
and as the act and deed of said corporation; and, being by me duly sworn, did
depose and say that he is G. Xxxxxx Xxxxxxxx, Xx. and Treasurer of said
corporation, that he knows the seal of said corporation, that the seal affixed
to said instrument is such corporate seal, that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 30th day of July, 1999.
Xxxx Xxxxxxxxx
--------------------------------
My commission expires:
March 9, 2000
--------------------------------
00
XXXXX XX XXXXX
XXXXXX XX XXXXXX
XXXXXX XX, the undersigned authority, on this day personally appeared,
Xxxxx X. Xxxxxx, the Assistant Vice President and Trust Officer of CHASE BANK OF
TEXAS, known to me to be the person whose name is subscribed to the above and
foregoing instrument of writing, and acknowledged to me that he executed the
same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said corporation; and, being by me
duly sworn, did depose and say that he is Xxxxxxx X. Xxxxxx and Vice President
and Trust Officer of said corporation, that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal,
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 30th day of July, 1999.
Xxxxxxxx X. Xxxx
---------------------
My commission expires:
10/23/2001
---------------------
