EXHIBIT 4.4
Supplemental Indenture No. 1 in Respect of Subsidiary Guarantees
SUPPLEMENTAL INDENTURE NO. 1, dated as of October 16, 2002 (this
"SUPPLEMENTAL INDENTURE"), among IESI Corporation, a Delaware corporation
(together with its successors and assigns, the "COMPANY"), the newly-acquired
subsidiaries of the Company set forth on the signature page hereto (the "NEW
SUBSIDIARY GUARANTORS"), the existing Subsidiary Guarantors (as defined therein)
under the Indenture referred to below (the "EXISTING SUBSIDIARY GUARANTORS") and
The Bank of New York, as Trustee (the "TRUSTEE") under the Indenture referred to
below.
W I T N E S S E T H:
WHEREAS, the Company, the Existing Subsidiary Guarantors and the Trustee
have heretofore become parties to an Indenture, dated as of June 12, 2002 (as
amended, supplemented, waived or otherwise modified, the "INDENTURE"), providing
for the issuance of 10 1/4% Senior Subordinated Notes due 2012 of the Company
(the "NOTES");
WHEREAS, SECTION 413 of the Indenture provides that the Company is
required to or may cause the New Subsidiary Guarantors to execute and deliver to
the Trustee a supplemental indenture pursuant to which the New Subsidiary
Guarantors shall guarantee the Notes pursuant to Subsidiary Guarantees (as
defined in the Indenture) on the terms and conditions set forth herein and in
ARTICLE 13 of the Indenture;
WHEREAS, each New Subsidiary Guarantor desires to enter into this
Supplemental Indenture for good and valuable consideration, including
substantial economic benefit in that the financial performance and condition of
such New Subsidiary Guarantor is dependent on the financial performance and
condition of the Company and on such New Subsidiary Guarantor's access to
working capital through the Company's access to revolving credit borrowings
under the Credit Agreement (as defined in the Indenture); and
WHEREAS, pursuant to SECTION 901 of the Indenture, the parties hereto are
authorized to execute and deliver this Supplemental Indenture to amend the
Indenture, without the consent of any Holder (as defined in the Indenture);
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantors, the Company, the Existing Subsidiary Guarantors and the
Trustee mutually covenant and agree for the benefit of the Holders as follows:
1. DEFINED TERMS. As used in this Supplemental Indenture, terms defined in
the Indenture or in the preamble or recital hereto are used herein as therein
defined. The words "herein," "hereof" and "hereby" and other words of similar
import used in this Supplemental Indenture refer to this Supplemental Indenture
as a whole and not to any particular section hereof.
2. AGREEMENT TO SUBSIDIARY GUARANTEE. Each New Subsidiary Guarantor hereby
agrees, jointly and severally with all other New Subsidiary Guarantors and all
Existing Subsidiary Guarantors, fully and unconditionally, to guarantee the
Guaranteed Obligations (as
defined in the Indenture) under the Indenture and the Notes on the terms and
subject to the conditions set forth in ARTICLE 13 of the Indenture and to be
bound by (and shall be entitled to the benefits of) all other applicable
provisions of the Indenture as a Subsidiary Guarantor. The Subsidiary Guarantee
of each New Subsidiary Guarantor is subject to the subordination provisions of
the Indenture.
3. TERMINATION, RELEASE AND DISCHARGE. Each New Subsidiary Guarantor's
Subsidiary Guarantee shall terminate and be of no further force or effect, and
each New Subsidiary Guarantor shall be released and discharged from all
obligations in respect of its Subsidiary Guarantee, as and when provided in
Section 1303 of the Indenture.
4. PARTIES. Nothing in this Supplemental Indenture is intended or shall be
construed to give any Person (as defined in the Indenture), other than the
Holders and the Trustee, any legal or equitable right, remedy or claim under or
in respect of each New Subsidiary Guarantor's Subsidiary Guarantee or any
provision contained herein or in Article 13 of the Indenture.
5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO CONFLICTS OF LAWS PROVISIONS THEREOF TO THE EXTENT THAT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE
TRUSTEE, THE COMPANY, EACH NEW SUBSIDIARY GUARANTOR, EACH EXISTING SUBSIDIARY
GUARANTOR, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF
THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES
FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL
INDENTURE OR THE NOTES.
EACH OF THE COMPANY, EACH NEW SUBSIDIARY GUARANTOR, EACH EXISTING
SUBSIDIARY GUARANTOR, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
6. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby. The Trustee makes no
representation or warranty as to the validity or sufficiency of this
Supplemental Indenture.
7. COUNTERPARTS. The parties hereto may sign one or more copies of
this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement.
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8. HEADINGS. The section headings herein are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
IESI CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer, Treasurer
and Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/Xxxxx Xxxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Assistant Treasurer
EXISTING SUBSIDIARY GUARANTORS:
IESI AR ORPORATION
IESI AR LANDFILL CORPORATION
IESI LA CORPORATION
IESI LA LANDFILL CORPORATION
IESI MO CORPORATION
IESI NJ CORPORATION
IESI NJ RECYCLING CORPORATION
IESI NY CORPORATION
IESI OK CORPORATION
IESI PA BETHLEHEM LANDFILL CORPORATION
IESI PA BLUE RIDGE LANDFILL CORPORATION
IESI PA CORPORATION
IESI TX CORPORATION
IESI TX GP CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer and
Treasurer
IESI DE CORPORATION
IESI DE LP CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx Xxxxxx
Title: Vice President
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IESI TX LANDFILL LP
By: IESI TX GP Corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer and
Treasurer
NEW SUBSIDIARY GUARANTORS:
TOTAL WASTE SYSTEMS, INC.
TWS, INC.
TWS OF SOUTHWESTERN OKLAHOMA, INC.
XXXXX'X TRASH SERVICES, INC.
GRAND LAKE SANITATION, INC.
TWS OF CADDO COUNTY, INC.
CENTER POINT DISPOSAL, INC.
AMD INC.
ENVIROCLEAN SYSTEMS, INC.
BEST DISPOSAL SERVICE, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer, Treasurer
and Assistant Secretary
CENTRAL LOUISIANA WASTE, LLC
By: IESI LA Landfill Corporation, its
managing member
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer, Treasurer
and Assistant Secretary
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