EXHIBIT 4.2
-------------------------------------------------------------------------------
ATC GROUP SERVICES INC.
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
-------------------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 5, 1998
to
INDENTURE
Dated as of January 23, 1998
by and between
ACQUISITION CORP., as Issuer
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
---------------------------
$150,000,000
12% Senior Subordinated Notes Due 2008
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
ASSUMPTION OF OBLIGATIONS OF ACQUISITION CORP.
Section 1.01. Assumption..............................................2
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. Terms Defined...........................................2
Section 2.02. Indenture...............................................2
Section 2.03. Governing Law...........................................3
Section 2.04. Successors..............................................3
Section 2.05. Multiple Counterparts...................................3
Section 2.06. Effectiveness...........................................3
Section 2.07. Trustee Disclaimer......................................3
SIGNATURES.............................................................4
-i-
FIRST SUPPLEMENTAL INDENTURE dated as of February 5, 1998, by
and among ATC GROUP SERVICES INC., a Delaware corporation ("ATC"), the
guarantors set forth on the signature pages hereto (the "Guarantors") and STATE
STREET BANK AND TRUST COMPANY as trustee under the hereafter defined Indenture
(the "Trustee").
WHEREAS, ACQUISITION CORP., a Delaware corporation (the
"Company"), heretofore executed and delivered to the Trustee an Indenture dated
as of January 23, 1998 (the "Indenture"), providing for the issuance of up to
$150,000,000 aggregate principal amount of the Company's 12% Senior Subordinated
Notes Due 2008 (the "Notes"); and
WHEREAS, there have been issued and are now outstanding under
the Indenture, Notes in the aggregate principal amount of $100,000,000; and
WHEREAS, in connection with the merger of the Company with and
into ATC pursuant to an Agreement and Plan of Merger dated as of November 26,
1997, the Company has been merged with and into ATC and in connection therewith,
ATC has assumed, by operation of law, all of the Company's debts, liabilities,
duties and obligations, including the Company's obligations in respect of the
Notes and under the Indenture; and
WHEREAS, ATC desires by this First Supplemental Indenture, to
expressly assume the covenants, agreements and undertakings of the Company in
the Indenture, under the Notes and in the Registration Rights Agreement; and
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by a resolution of the Board of Directors of ATC;
and
WHEREAS, the Guarantors desire, by this First Supplemental
Indenture, to expressly assume, jointly and severally, the obligations of
Guarantors under the Indenture and under Guarantees attached to the Notes; and
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by a resolution of the Board of Directors of each
of the several Guarantors; and
WHEREAS, all conditions and requirements necessary to make
this First Supplemental Indenture a valid, binding and legal instrument in
accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and de-
-2-
livery thereof have been in all respects duly authorized by the parties hereto.
NOW, THEREFORE, in consideration of the above premises, each
party agrees, for the benefit of the others and for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE I
ASSUMPTION OF OBLIGATIONS OF ACQUISITION CORP.
Section 1.01. Assumption. ATC hereby expressly and
unconditionally assumes each and every covenant, agreement and undertaking of
the Company in the Indenture and the Registration Rights Agreement as if ATC had
been the original issuer of the Notes, and also hereby expressly and
unconditionally assumes each and every covenant, agreement and undertaking in
each Note outstanding on the date of this First Supplemental Indenture and any
Notes delivered hereafter. Any Notes delivered after the date of this First
Supplemental Indenture, including Notes delivered in substitution or exchange
for any outstanding Notes, as provided in the Indenture, may be executed and
delivered by ATC in its own name, with such notations, legends or endorsements
required by law, stock exchange rules or usage, and each such Note shall
constitute the obligation of ATC.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. Terms Defined. For all purposes of this First
Supplemental Indenture, except as otherwise defined or unless the context
otherwise requires, terms used in capitalized form in this First Supplemental
Indenture and defined in the Indenture have the meanings specified in the
Indenture.
Section 2.02. Indenture. Except as amended hereby, the
Indenture and the Notes are in all respects ratified and confirmed and all the
terms shall remain in full force and effect.
Section 2.03. Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY AND CONSTRUED IN
-3-
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this First Supplemental Indenture, provided that
such jurisdiction shall be non-exclusive.
Section 2.04. Successors. All agreements of ATC in this First
Supplemental Indenture and the Notes shall bind its successors. All agreements
of each of the Guarantors in this First Supplemental Indenture, the Notes and
the Guarantees shall jointly and severally bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section 2.05. Multiple Counterparts. The parties may sign
multiple counterparts of this First Supplemental Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
same agreement.
Section 2.06. Effectiveness. The provisions of this First
Supplemental Indenture will take effect immediately upon its execution and
delivery by the Trustee in accordance with the provisions of Section 8.06 of the
Indenture.
Section 2.07. Trustee Disclaimer. The Trustee accepts the
amendment of the Indenture effected by his First Supplemental Indenture and
agrees to execute the trust created by the Indenture and agrees to execute the
trust created by the Indenture as hereby amended, but only upon the terms and
conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect to
any of the recitals or statements contained herein, all of which recitals or
statements are made solely by ATC, or for or with respect to (i) the validity or
sufficiency of this First Supplemental Indenture or any of the terms or
provisions hereof, (ii) the proper authorization hereof by ATC and each
Guarantor by corporate action or otherwise, (iii) the due execution hereof by
ATC and each Guarantor, (iv) the consequences (direct or indirect and whether
deliberate or inadvertent) of any amendment herein provided for, and the Trustee
makes no representation with respect to any such matters.
-4-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
ATC GROUP SERVICES INC.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Chief Executive Officer
THE GUARANTORS:
ATC XXXXXXXX INC., a South
Dakota corporation, as
Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
ATC CONSTRUCTION SERVICES INC.,
a Massachusetts corporation,
as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
-5-
ATC ENVIRONMENTAL INC., a
Delaware corporation, as Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
ATC INSYS TECHNOLOGY INC., a
Delaware corporation, as
Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Chief Executive Officer
ATC MANAGEMENT INC., a South
Dakota corporation, as
Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
ATC NEW ENGLAND CORP., a
Delaware corporation, as
Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
-6-
BING YEN & ASSOCIATES, INC., a
California corporation, as
Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Chief Executive Officer
ENVIRONMENTAL WARRANTY, INC., a
Connecticut corporation, as
Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
HYGEIA LABORATORIES INC., a
Delaware corporation, as
Guarantor
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
THE TRUSTEE:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
