Exhibit 4.6
UNITED WASTE SYSTEMS, INC.
AND
USA WASTE SERVICES, INC.
TO
BANKERS TRUST COMPANY
as Trustee
____________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 26, 1997
____________________
Supplementing and Amending Indenture Dated as of June 5, 1996
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of August 26, 1997 (the
"Supplemental Indenture"), is by and among United Waste Systems, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called "United" or the "Company"), having its principal executive office
at Four Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, XXX Waste Services,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (herein called "USA Waste"), having its principal executive office at
First City Tower, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, and
Bankers Trust Company, a New York banking association, as Trustee (herein called
the "Trustee").
RECITALS OF UNITED AND USA WASTE
United has executed and delivered to the Trustee its Indenture, dated as of
June 5, 1996 (herein called the "Indenture"), to provide for the issuance of
$150,000,000 aggregate principal amount of its 4-1/2% Convertible Subordinated
Notes Due June 1, 2001 (the "Securities").
Pursuant to the Indenture, United has issued Securities in an original
principal amount of $150,000,000, all of which are currently outstanding. No
other securities have been issued pursuant to the Indenture.
Effective as of August 26, 1997 (the "Merger Date"), Riviera Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of USA Waste,
was merged with and into United pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "Merger"), as a result of which
United became a wholly-owned subsidiary of USA Waste.
Each share of common stock of United which was issued and outstanding
immediately prior to the Merger was, by virtue of the Merger and without any
action on the part of the holder thereof, converted into 1.075 shares of the
common stock, par value $0.01 per share, of USA Waste (the "USA Waste Shares").
In connection with the Merger, United and USA Waste, pursuant to
appropriate resolutions of their respective Boards of Directors, have duly
determined to make, execute and deliver to the Trustee this Supplemental
Indenture in order to reflect the results of the Merger as required by the
Indenture.
Pursuant to Section 12.11 of the Indenture, United, as the survivor in the
Merger, is required to execute and deliver to the Trustee an indenture
supplemental to the Indenture in connection with the Merger.
The Indenture provides that, without the consent of any Holders, United and
the Trustee may enter into a supplemental indenture to make provision with
respect to the conversion rights of Holders pursuant to the requirements of
Article Twelve of the Indenture, and United has determined that this
Supplemental Indenture may therefore be entered into without the consent of any
Holder in accordance with Section 8.1(5) of the Indenture.
United and USA Waste have duly authorized the execution and delivery of
this Supplemental Indenture and all things necessary have been done to make this
Supplemental Indenture a valid agreement of United and USA Waste, in accordance
with its terms.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually agreed, for the
equal and proportionate benefit of the respective Holders from time to time of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 101. Indenture Terms.
Capitalized terms used but not defined in this Supplemental Indenture have
the respective meanings assigned to them in the Indenture.
ARTICLE TWO
CONCERNING THE SECURITIES
SECTION 201. Conversion Privilege.
The Holder of each Security Outstanding on the date hereof shall have the
right from and after the date hereof, during the period such Security shall be
convertible as specified in Section 12.1 of the Indenture, to convert such
Security only into the number of USA Waste Shares, and cash in lieu of
fractional USA Waste Shares, receivable upon the effectiveness of the Merger by
a holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to the Merger, subject to
adjustment as provided in Section 202 below.
SECTION 202. Conversion Price.
The price at which USA Waste Shares shall be delivered upon conversion of
Securities (herein called the "Conversion Price") shall be the price specified
in Section 12.1 of the Indenture, as adjusted in accordance with Article Twelve
of the Indenture prior to the Merger. For events subsequent to the effective
date of this Supplemental Indenture, the Conversion Price shall be adjusted in a
manner as nearly equivalent as may be practical to the adjustments provided for
in Article Twelve of the Indenture.
ARTICLE THREE
CONCERNING THE TRUSTEE
SECTION 301. Terms and Conditions.
The Trustee accepts this Supplemental Indenture and agrees to perform the
duties of the Trustee upon the terms and conditions herein and in the Indenture
set forth.
SECTION 302. No Responsibility.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of (i) the validity or sufficiency of this Supplemental Indenture, the
authorization or permissibility of this Supplemental Indenture pursuant to the
terms of the Indenture or the due execution thereof by United or USA Waste or
(ii) the recitals herein contained, all such recitals being made by United and
USA Waste. The Trustee shall not be responsible in any manner to determine the
correctness of provisions contained in this Supplemental Indenture relating
either to the kind or amount of securities receivable by Holders of Securities
upon the conversion of their Securities after the Merger or to any adjustment
provided herein.
ARTICLE FOUR
EFFECT OF EXECUTION AND DELIVERY HEREOF
From and after the execution and delivery of this Supplemental Indenture,
(i) the Indenture shall be deemed to be amended and modified as provided herein,
(ii) this Supplemental Indenture shall form a part of the Indenture,
(iii) except as modified and amended by this Supplemental Indenture, the
Indenture shall continue in full force and effect, (iv) the Securities shall
continue to be governed by the Indenture, as modified and amended by this
Supplemental Indenture, and (v) every Holder of Securities heretofore and
hereafter authenticated and delivered under the Indenture shall be bound by this
Supplemental Indenture.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 501. Headings Descriptive.
The headings of the several Articles and Sections of this Supplemental
Indenture are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Supplemental Indenture.
SECTION 502. Rights and Obligations of the Trustee.
All of the provisions of the Indenture with respect to the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of this Supplemental Indenture as fully and with the same effect as if
set forth herein in full.
SECTION 503. Successors and Assigns.
This Supplemental Indenture shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the parties
hereto and the Holders of any Securities then Outstanding.
SECTION 504. Counterparts.
This Supplemental Indenture may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
SECTION 505. Governing Law.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
[The next page is the signature page]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UNITED WASTE SYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and Chief
Executive Officer
Attest:
By: /s/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
USA WASTE SERVICES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, General Counsel and
Secretary
Attest:
By: /s/ XXXX X. XxXXXXXX
----------------------------
Name: Xxxx X. XxXxxxxx
Title: Executive Vice President
and Chief Financial Officer
BANKERS TRUST COMPANY
By: /s/ XXXXX XXXXXXX
------------------------------
Name: Xxxxx Xxxxxxx
Title: Associate Vice President
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
On the 26th day of August, 1997, before me personally came Xxxxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Chairman of the Board and Chief Executive Officer of United Waste Systems, Inc.,
one of the corporations described in and which executed the foregoing
instrument; 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.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxx
(SEAL)
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
On the 26th day of August, 1997, before me personally came Xxxxxxx X.
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Vice President, General Counsel and Secretary of USA Waste Services, Inc.,
one of the corporations described in and which executed the foregoing
instrument; 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.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxx
(SEAL)
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On the 26th day of August, 1997, before me personally came Xxxxx Xxxxxxx,
to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President of Bankers Trust Company, one of the corporations
described in and which executed the foregoing instrument; 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.
By: /s/ XXXXXXXX XXXXXX
-----------------------------------
Xxxxxxxx Xxxxxx
(SEAL)
