Supplemental Indenture No. 3 in Respect of Subsidiary Guarantees
SUPPLEMENTAL INDENTURE NO. 3, dated as of October 23, 2003 (this
"Supplemental Indenture"), among IESI Corporation, a Delaware corporation
(together with its successors and assigns, the "Company"), Seneca Xxxxxxx, Inc.
(the "New Subsidiary Guarantor"), the existing Subsidiary Guarantors 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 (as amended,
supplemented, waived or otherwise modified, the "Indenture"), dated as of June
12, 2002, as supplemented, 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 Guarantor to execute and deliver to
the Trustee a supplemental indenture pursuant to which the New Subsidiary
Guarantor shall guarantee the Notes pursuant to a Subsidiary Guarantee (as
defined in the Indenture) on the terms and conditions set forth herein and in
Article 13 of the Indenture;
WHEREAS, the 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 Guarantor, 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 recitals 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. The New Subsidiary Guarantor
hereby agrees, jointly and severally with 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 the New
Subsidiary Guarantor is subject to the subordination provisions of the
Indenture.
3. Termination, Release and Discharge. The New Subsidiary Guarantor's
Subsidiary Guarantee shall terminate and be of no further force or effect, and
the 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 the 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, THE 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, THE NEW SUBSIDIARY GUARANTOR, THE EXISTING
SUBSIDIARY GUARANTORS, 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.
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.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 3 to be duly executed as of the date first above written.
IESI CORPORATION
By:
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President, Chief
Financial Officer, Treasurer and
Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------------
Name:
Title:
EXISTING SUBSIDIARY GUARANTORS:
IESI AR CORPORATION
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
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.
WACO LAND HOLDING, INC.
ENVIROCLEAN SYSTEMS, INC.
BEST DISPOSAL SERVICE, INC.
By:
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer, Treasurer and
Assistant Secretary
IESI DE CORPORATION
IESI DE LP CORPORATION
By:
------------------------------------------
Name:
Title:
IESI TX LANDFILL LP
By: IESI TX GP Corporation,
its General Partner
By:
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer and Treasurer
CENTRAL LOUISIANA WASTE, LLC
By: IESI LA Landfill Corporation, its managing
member
By:
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief
Financial Officer, Treasurer and
Assistant Secretary
NEW SUBSIDIARY GUARANTOR:
SENECA XXXXXXX, INC.
By:
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial
Officer and Treasurer
