FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (the "Fourth
Supplemental Indenture") among ALLIED WASTE NORTH AMERICA, INC., a Delaware
corporation (the "Company"), having its principal place of business at 15880
North Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260, and each of
the guarantors signatory hereto (the "Guarantors") and U.S. Bank Trust National
Association, as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company, Allied Waste Industries, Inc., the sole
stockholder of the Company ("Allied"), and the subsidiary guarantors party
thereto and the Trustee executed and delivered an Indenture, dated as of
December 23, 1998 (the "Indenture"), to provide for the issuance by the Company
from time to time of debt securities evidencing its unsecured indebtedness (the
"Securities");
WHEREAS, pursuant to resolutions adopted by the Board of Directors of
the Company, the Company issued (i) $300,000,000 aggregate principal amount of
its 73/8% Senior Notes due 2004 (the "Five-Year Notes") pursuant to a First
Supplemental Indenture, dated as of December 23, 1998, (ii) $600,000,000
aggregate principal amount of its 75/8% Senior Notes due 2006 (the "Seven-Year
Notes") pursuant to a Second Supplemental Indenture, dated as of December 23,
1998, and (iii) $875,000,000 aggregate principal amount of its 77/8% Senior
Notes due 2009 (the "Ten-Year Notes" and, together with the Five-Year Notes and
the Seven-Year Notes, the "Notes") pursuant to a Third Supplemental Indenture,
dated as of December 23, 1998 (the Indenture, as supplemented by the related
Supplemental Indenture for the applicable series of Notes, the "Indenture
Series");
WHEREAS, pursuant to that certain Amended and Restated Agreement and
Plan of Merger, dated as of May 21, 1999 (the "Merger Agreement"), among the
Browning-Ferris Industries, Inc. ("BFI"), Allied and AWIN I Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary of Allied, BFI
has agreed to merge with Allied (the "Merger");
WHEREAS, the Board of Directors of Allied, the Board of Directors of
BFI and the shareholders of BFI have approved the Merger;
WHEREAS, upon consummation of the Merger, BFI will become a wholly
owned subsidiary of the Company, a wholly owned subsidiary of Allied;
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WHEREAS, upon consummation of the Merger, BFI and each of its
subsidiaries identified on Schedule B hereto will become "Restricted
Subsidiaries" as defined in the Indenture Series and are required to guarantee
the Company's obligations under the Securities and the Indenture Series in
accordance with the terms of the Securities and the Indenture Series;
WHEREAS, subsequent to the issuance of the Securities, the Company has
acquired certain other Restricted Subsidiaries identified on Schedule A hereto,
which are required to guarantee the Company's obligations under the Securities
and the Indenture Series in accordance with the terms of the Securities and the
Indenture Series;
WHEREAS, each of the Restricted Subsidiaries identified on Schedules A
and B hereto (the "Subsidiary Guarantors") has duly authorized the execution and
delivery of this Fourth Supplemental Indenture to provide for the Guarantees (as
defined in the Indenture Series);
WHEREAS, pursuant to resolutions adopted by the Board of Directors of
each of the Subsidiary Guarantors, each of the Subsidiary Guarantors has duly
authorized the guarantee of the Company's obligations under the Securities and
the Indenture Series;
NOW THEREFORE, for and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
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All capitalized terms used herein without definition shall have the
meanings specified in the Indenture.
SECTION 102. Provisions of General Application.
---------------------------------
All rules of construction and other provisions of general application
set forth in Article One of the Indenture are hereby incorporated herein by
reference.
SECTION 103. Effectiveness.
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This Fourth Supplemental Indenture shall become effective upon the
effectiveness of the Merger without any further action by the parties hereto.
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ARTICLE TWO
GUARANTEE
SECTION 201. Senior Guarantee.
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Each of Allied and the Subsidiary Guarantors hereby jointly and
severally unconditionally guarantees on a senior basis for the benefit of each
Holder of a Security that has been authenticated and delivered by the Trustee,
and for the benefit of the Trustee on behalf of such Holder, the due and
punctual payment of the principal of, premium, if any, and interest on such
Security when and as the same shall become due and payable, whether at its
Stated Maturity or following acceleration, call for redemption, purchase or
otherwise, in each case in accordance with the terms and conditions of such
Security, this Fourth Supplemental Indenture and the Indenture Series. Each of
the Subsidiary Guarantors shall be from the effective date of this Fourth
Supplemental Indenture a "Subsidiary Guarantor" within the meaning and for all
purposes of the Indenture. In addition, Allied hereby guarantees to the extent
set forth in the Senior Guarantee endorsed upon each Security for the benefit of
the Holder thereof, the obligations of each Subsidiary Guarantor thereunder.
ARTICLE THREE
PARTICULAR REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE COMPANY AND THE GUARANTORS
SECTION 301. Authority of the Company.
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The Company represents and warrants that it is duly authorized under
the laws of the State of Delaware and all other applicable laws to execute,
deliver and perform this Fourth Supplemental Indenture, and all corporate action
on its part required for the execution, delivery and performance of this Fourth
Supplemental Indenture by the Company has been duly and effectively taken.
SECTION 302. Authority of the Guarantors.
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Each Guarantor represents and warrants that it is duly authorized under
the laws of the jurisdiction of its incorporation/organization and all other
applicable laws to execute, deliver and perform this Fourth Supplemental
Indenture, and all corporate or other action on its part required for the
execution, delivery and performance of this Fourth Supplemental Indenture by
such Guarantor has been duly and effectively taken.
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SECTION 303. Truth of Recitals and Statements of the Company.
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The Company represents and warrants that the recitals of fact and
statements contained in this Fourth Supplemental Indenture with respect to it
are true and correct in all material respects, and that the recitals of fact and
statements contained in all certificates and other documents furnished by the
Company in connection herewith will be true and correct in all material
respects.
SECTION 304. Truth of Recitals and Statements of the Guarantors.
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Each Guarantor represents and warrants that the recitals of fact and
statements contained in this Fourth Supplemental Indenture with respect to it
are true and correct in all material respects, and that the recitals of fact and
statements contained in all certificates and other documents furnished by such
Guarantor in connection herewith will be true and correct in all material
respects.
ARTICLE FOUR
CONCERNING THE TRUSTEE
SECTION 401. Acceptance of Trusts.
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The Trustee accepts the trusts hereunder and agrees to perform the
same, but only upon the terms and conditions set forth in the Indenture Series
and in this Fourth Supplemental Indenture, to all of which the Company and the
Guarantors agree and the Holders of Securities at any time outstanding by their
acceptance thereof agree.
SECTION 402. No Responsibility of the Trustee for Recitals, etc.
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The recitals and statements contained in this Fourth Supplemental
Indenture shall be taken as the recitals and statements of the Company and the
Guarantors, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Fourth Supplemental Indenture.
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ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 501. Binding Agreement; Assignments.
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Whenever in this Fourth Supplemental Indenture any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and assigns of such party; and all covenants, promises and agreements by or on
behalf of each Guarantor that are contained in this Fourth Supplemental
Indenture shall bind and inure to the benefit of each party hereto and their
respective successors and assigns.
SECTION 502. Relation to Indenture.
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The provisions of this Fourth Supplemental Indenture shall become
effective immediately upon the execution and delivery hereof. This Fourth
Supplemental Indenture and all the terms and provisions herein contained shall
form a part of the Indenture as fully and with the same effect as if all such
terms and provisions had been set forth in the Indenture and each and every term
and condition contained in the Indenture shall apply to this Fourth Supplemental
Indenture with the same force and effect as if the same were set forth in full
in this Fourth Supplemental Indenture, with such omissions, variations and
modifications thereof as may be appropriate to make each such term and condition
consistent with this Fourth Supplemental Indenture. The Indenture is hereby
ratified and confirmed and shall remain and continue in full force and effect in
accordance with the terms and provisions thereof, as supplemented and amended by
this Fourth Supplemental Indenture and the Indenture and this Fourth
Supplemental Indenture shall be read, taken and construed together as one
instrument.
SECTION 503. Counterparts.
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This Fourth Supplemental Indenture may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. THOMAS ROCHFORD, JR.
------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 2 and as Guarantor of
the Securities and as Guarantor of the
obligations of the Subsidiary Guarantors under
the Subsidiary Guarantees
By: /s/ G. THOMAS ROCHFORD, JR.
------------------------------------
Name: G. Thomas Rochford, Jr.
Title: Treasurer
Each of the Subsidiary Guarantors Listed on
Schedules A & B hereto, as Guarantor of the
Securities
By: /s/ G. THOMAS ROCHFORD, JR.
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Name: G. Thomas Rochford, Jr.
Title: Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee
By: /s/ RICHARD H. PROKOSCH
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Name: Richard H. Prokosch
Title: Assistant Vice President
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SCHEDULE A
Allied Guarantors
Parent Guarantor
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Name of Parent Guarantor State of Organization
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Allied Waste Industries, Inc. Delaware
Subsidiary Guarantors (Allied)
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Name of Subsidiary Guarantor State of Organization
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Allied Enviro Engineering, Inc. Texas
Allied EnviroEngineering, Inc. Delaware
Allied Waste Alabama, Inc. Delaware
Allied Waste Hauling of Georgia, Inc. Georgia
Allied Waste Holdings (Canada) Ltd. Delaware
Allied Waste Industries (New Mexico), Inc. New Mexico
Allied Waste Industries (Southwest), Inc. Arizona
Allied Waste Industries of Georgia, Inc. Georgia
Allied Waste Industries of Illinois, Inc. Illinois
Allied Waste Industries of Northwest Indiana, Inc. Indiana
Allied Waste Industries of Tennessee, Inc. Tennessee
Allied Waste of New Jersey, Inc. New Jersey
Allied Waste Services, Inc. (TX corp.) Texas
Allied Waste Systems (Texas), Inc. Texas
American Materials Recycling Corp. New Jersey
Automated Modular Systems, Inc. New Jersey
City Garbage, Inc. Texas
Containerized, Inc. of Texas Texas
EOS Environmental, Inc. Texas
Keller Canyon Landfill Company California
Mesa Disposal, Inc. Arizona
NationsWaste Catawba Regional Landfill, Inc. South Carolina
Pima Environmental Services, Inc. Arizona
Rabanco Connections International, Inc. Washington
Refuse Service, Inc. Missouri
Sun Valley Environmental Services, Inc. Arizona
Super Services Waste Management, Inc. Arizona
Total Solid Waste Recyclers, Inc. New Jersey
Tri-State Refuse Corporation Arizona
Yavapai Environmental Services, Inc. Arizona
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SCHEDULE B
BFI Guarantors
Name of Subsidiary Guarantor State of Organization
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Attwoods of North America, Inc. Delaware
BFI Atlantic, Inc. Delaware
BFI Energy Systems of Albany, Inc. Delaware
BFI Energy Systems of Boston, Inc. Massachusetts
BFI Energy Systems of Delaware County, Inc. Delaware
BFI Energy Systems of Essex County, Inc. New Jersey
BFI Energy Systems of Hempstead, Inc. Delaware
BFI Energy Systems of Niagara II, Inc. Delaware
BFI Energy Systems of Niagara, Inc. Delaware
BFI Energy Systems of Plymouth, Inc. Delaware
BFI Energy Systems of SEMASS, Inc. Delaware
BFI Energy Systems of Southeastern Connecticut, Inc. Delaware
BFI International, Inc. Delaware
BFI Properties, Inc. Texas
BFI Services Group, Inc. California
BFI Trans River (GP), Inc. Delaware
BFI Trans River (LP), Inc. Delaware
BFI Transfer Systems of New Jersey, Inc. New Jersey
BFI Waste Systems of New Jersey, Inc. New Jersey
BFI Waste Systems of North America, Inc. Delaware
Browning-Ferris Financial Services, Inc. Delaware
Browning-Ferris Gas Services, Inc. Delaware
Browning-Ferris Industries Asia Pacific, Inc. Delaware
Browning-Ferris Industries Chemical Services, Inc. Nevada
Browning-Ferris Industries Europe, Inc. Delaware
Browning-Ferris Industries of California, Inc. California
Browning-Ferris Industries of Florida, Inc. Delaware
Browning-Ferris Industries of Illinois, Inc. Delaware
Browning-Ferris Industries of New Jersey, Inc. New Jersey
Browning-Ferris Industries of New York, Inc. New York
Browning-Ferris Industries of Ohio, Inc. Delaware
Browning-Ferris Industries of Tennessee, Inc. Tennessee
Browning-Ferris Industries, Inc. Delaware
Browning-Ferris Industries, Inc. Massachusetts
Browning-Ferris Services, Inc. Delaware
Browning-Ferris, Inc. Maryland
CECOS International, Inc. New York
International Disposal Corp. of California California
Lake Norman Landfill, Inc. North Carolina
New Morgan Landfill Company, Inc. Pennsylvania
Newco Waste Systems of New Jersey, Inc. New Jersey
Risk Services, Inc. Delaware
VHG, Inc. Minnesota
Warner Hill Development Company Delaware
Woodlake Sanitary Service, Inc. Minnesota
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