SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE, dated as of February 5, 2007 (this “Second Supplemental
Indenture”), among Covanta ARC LLC, formerly known as American Ref-Fuel Company LLC, a Delaware
limited liability company (the “Company”), U.S. Bank National Association, as successor trustee
under the Indenture referred to below (the “Trustee”) and U.S. Bank National Association as
successor securities intermediary under the Indenture referred to below (the “Securities
Intermediary”).
W I T N E S S E T H:
WHEREAS, the Company has duly issued its 6.26% Senior Notes due 2016 (the “Notes”) pursuant to
an Indenture, dated as of May 1, 2003 (the “Initial Indenture”), among the Company, the Trustee and
the Securities Intermediary, as supplemented by the First Supplemental Indenture thereto, dated as
May 1, 2003 (the “First Supplemental Indenture” and, together with the Initial Indenture, the
“Indenture”); and
WHEREAS, the Company desires to enter into this Second Supplemental Indenture to eliminate
from the Indenture substantially all of the covenants and certain events of default contained
therein and make certain other changes therein; and
WHEREAS, pursuant to Section 11.2 of the Indenture, the Company has obtained the consent of
the Holders of at least a majority in aggregate principal amount of the Notes, the only outstanding
securities issued under the Indenture; and
WHEREAS, an Officers’ Certificate and an Opinion of Counsel have been delivered to the Trustee
in accordance with Sections 1.3, 11.2 and 11.3 of the Indenture; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid agreement of
the Company, in accordance with its terms, have been done; and
WHEREAS, on the execution of this Second Supplemental Indenture by the parties hereto, the
provisions hereof will become effective but not operative until the time specified in Section 12
herein.
NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Trustee and the Securities Intermediary, agree as follows:
1. Deletion of Sections in the Initial Indenture Related to Covenants. The provisions
of each of the following sections and subsections of the Initial Indenture, including any related
cross-references, events of default provisions, defined terms and other references thereto made
irrelevant as a result of their deletion, are hereby deleted in their entirety and replaced with
the phrase “Intentionally Omitted”:
Section 4.2
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
Section 4.8
Section 4.10
Section 4.11
Section 4.13
Section 4.14
Section 4.15
Section 4.16
Section 4.17
Section 7.14.
Section 4.3
Section 4.4
Section 4.5
Section 4.6
Section 4.7
Section 4.8
Section 4.10
Section 4.11
Section 4.13
Section 4.14
Section 4.15
Section 4.16
Section 4.17
Section 7.14.
2. Deletion of Sections in the Initial Indenture Related to Events of Default. The
provisions of each of the following subsections of Section 7.1 of the Initial Indenture, including
any related cross-references, defined terms and other references thereto made irrelevant as a
result of their deletion, are hereby deleted in their entirety and replaced with the phrase
“Intentionally Omitted”:
Subsection 7.1(3)
Subsection 7.1(4)
Subsection 7.1(5)
Subsection 7.1(6)
Subsection 7.1(7)
Subsection 7.1(8)
Subsection 7.1(11)
Subsection 7.1(12).
Subsection 7.1(4)
Subsection 7.1(5)
Subsection 7.1(6)
Subsection 7.1(7)
Subsection 7.1(8)
Subsection 7.1(11)
Subsection 7.1(12).
3. Deletion of Sections in the Initial Indenture Related to Defeasance. The provisions
of each of the following subsections of Section 13.2 of the Initial Indenture, including any
related cross-references, defined terms and other references thereto made irrelevant as a result of
their deletion, are hereby deleted in their entirety and replaced with the phrase “Intentionally
Omitted”:
Subsection 13.2(e)
Subsection 13.2(f)
Subsection 13.2(g)
Subsection 13.2(h).
Subsection 13.2(f)
Subsection 13.2(g)
Subsection 13.2(h).
4. Amendment of Minimum Denomination of the Notes in the First Supplemental Indenture. Section 2.2 of the First Supplemental Indenture is hereby amended and restated
in its entirety and replaced with the following section:
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SECTION 2.2. Denominations. Each Note created hereby shall be issued in
fully registered form without coupons in minimum denominations of $1,000 and
integral multiples thereof.
5. Definitions. Capitalized terms used but not defined in this Second
Supplemental Indenture shall have the meanings ascribed thereto in the Indenture.
6. Confirmation of the Indenture. The Indenture, as modified, supplemented and
superseded by this Second Supplemental Indenture, is in all respects ratified and confirmed, and
the Indenture and this Second Supplemental Indenture shall be read, taken and construed as one and
the same instrument. (Reference herein to the Indenture shall be deemed to be to the Indenture, as
modified, supplemented and superseded by this Second Supplemental Indenture).
7. Governing Law. NEW YORK LAW TO GOVERN. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THEREOF TO THE EXTENT THE APPLICATION OF SUCH PRINCIPLES WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
8. Separability. In case any provision in this Second Supplemental Indenture shall for
any reason be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9. Counterparts. The parties may sign any number of copies of this Second Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
10. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.
11. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Second Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by the Company.
12. Effectiveness and Operativeness. The provisions of this Second Supplemental
Indenture will become effective upon execution and delivery hereof and will become operative on the
first date that the Company (a) accepts for payment a majority in aggregate principal amount of the
outstanding Notes pursuant to the Offer to Purchase and Consent Solicitation Statement dated
January 23, 2007, as supplemented by the Supplement thereto dated January 31, 2007 and (b) provides
notice of such acceptance to the Trustee.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, all as of the date first above written.
| COVANTA ARC LLC |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Vice President and Chief Financial Officer |
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| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: | /s/ Xxxx X’Xxxxx | |||
| Name: | Xxxx X’Xxxxx | |||
| Title: | Vice President | |||
| U.S. BANK NATIONAL ASSOCIATION, as Securities Intermediary |
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| By: | /s/ Xxxx X’Xxxxx | |||
| Name: | Xxxx X’Xxxxx | |||
| Title: | Vice President | |||
