THIRD SUPPLEMENTAL INDENTURE

EX-4.1 4 g16932exv4w1.htm EX-4.1 EX-4.1

Exhibit 4.1

THIRD SUPPLEMENTAL INDENTURE

THIRD SUPPLEMENTAL INDENTURE, dated as of December 5, 2008 (this “Third Supplemental Indenture”) among Browning-Ferris Industries, LLC, a Delaware limited liability company, successor to Browning Ferris Industries, Inc. (the “Company”), BBCO, Inc., a Delaware corporation (“Co-Obligor”), Republic Services, Inc., a Delaware corporation (“Republic”), each of the subsidiaries of Republic identified on Schedule A attached hereto (the “Republic Subsidiary Guarantors”, and collectively with Republic, the “Republic Guarantors”), Allied Waste Industries, Inc., a Delaware corporation (“Allied Waste”), and each of the subsidiaries of Allied Waste identified on Schedule B attached hereto (the “Allied Subsidiary Guarantors”, and collectively with the Republic Subsidiary Guarantors, the “Subsidiary Guarantors”), Allied Waste North America, Inc., a Delaware corporation (“AWNA”), and The Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan Chase Bank, N.A., as successor to Chase Bank of Texas, National Association, as successor trustee to First City National Bank of Houston), as trustee under the Indenture referred to herein (“Trustee”).

WITNESSETH:

WHEREAS, the Company and First City National Bank of Houston, as a predecessor trustee to the Trustee, entered into that certain Indenture dated as of January 15, 1985, as amended (“Original Indenture”) to provide for the issuance by the Company of certain debt securities evidencing its indebtedness (the “Securities”);

WHEREAS, pursuant to authority granted by the Executive Committee of the Board of Directors of the Company and the Finance Committee of the Board of Directors of the Company, the Company established the terms of, and issued on May 14, 1991, under the Original Indenture, a series of 9¹/4% Debentures due 2021 in the aggregate principal amount of $100,000,000 (“2021 Debentures”);

WHEREAS, the Company and the Trustee executed and delivered a Restated Indenture dated as of September 1, 1991 (the “Indenture”), amending and restating the Original Indenture and providing for the issuance by the Company from time to time of its unsecured debentures, notes or other evidence of indebtedness;

WHEREAS, the Company is a wholly-owned subsidiary of AWNA, a wholly-owned subsidiary of Allied Waste;

WHEREAS, the Company, the Trustee, Allied Waste and AWNA executed and delivered a First Supplemental Indenture dated as of July 30, 1999 with respect to the Indenture;

WHEREAS, pursuant to authority granted by the Board of Directors of the Company, the Company established the terms of, and issued on September 15, 1995, under the Indenture a series of 7.40% Debentures due 2035 in the aggregate principal amount of $400,000,000 (“2035 Debentures”, and together with the 2021 Debentures, the “Debentures”);

WHEREAS, the Debentures constitute the only series of Securities outstanding under the Indenture;

WHEREAS, the Company, the Co-Obligor and the Trustee executed and delivered a First (sic) Supplemental Indenture dated as of December 31, 2004 with respect to the Indenture;

WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of June 22, 2008, as amended, among Republic, RS Merger Wedge, Inc., a Delaware corporation and a wholly-owned subsidiary of Republic (“Merger Sub”), and Allied Waste, Allied Waste has agreed to merge with Merger Sub and to become a wholly-owned subsidiary of Republic (the “Merger”);

WHEREAS, the Board of Directors and the shareholders of Republic and Allied Waste have approved the Merger;

WHEREAS, upon consummation of the Merger, the Company will become an indirect wholly-owned subsidiary of Republic;

WHEREAS, the Republic Subsidiary Guarantors have each delivered its guarantee (as the same may be amended, modified, waived, restated, supplemented, amended and restated, refinanced or replaced from time to time, the “Republic Credit Facility Guaranty”), and the Allied Subsidiary Guarantors have each delivered its guarantee, effective upon the date following the effective date of the Merger (as the same may be amended, modified, waived, restated, supplemented, amended and restated, refinanced or replaced from time to time, the “Allied Credit Facility Subsidiary Guaranty”) in connection with each of (i) that certain Credit Agreement, dated as of April 26, 2007, among Republic, Bank of America, N. A., as administrative agent, swing line lender and L/C issuer, Citibank, N. A., as syndication agent, JPMorgan Chase Bank, N.A., Barclays Bank PLC, and SunTrust Bank, as co-documentation agents, and certain other lenders thereto, as amended by Amendment No. 1 to Credit Agreement, dated as of September 18, 2008 (as the same may be amended, modified, waived, restated, supplemented, amended and restated, refinanced or replaced from time to time (“Initial Republic Credit Facility”) and (ii) that certain Credit Agreement, dated as of September 18, 2008, among Republic, Bank of America, N. A., as administrative agent, swing line lender and L/C issuer, JPMorgan Chase Bank, N. A., as syndication agent, Barclays Bank PLC, BNP Paribas, and The Royal Bank of Scotland, as co-documentation agents, and certain other lenders thereto (as the same may be amended, modified, waived, restated, supplemented, amended and restated, refinanced or replaced from time to time hereafter, the “Supplemental Republic Credit Facility” and together with the Initial Republic Credit Facility, the “Republic Credit Facility”);

WHEREAS, the Republic Credit Facility will replace that certain Credit Agreement dated as of July 21, 1999, as amended and restated as of March 21, 2005, among the Company, Allied, Allied Waste North America, Inc., certain lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent, and Citicorp North America, Inc., as Syndication Agent, as amended;

WHEREAS, the Republic Credit Facility is unsecured;

WHEREAS, pursuant to resolutions adopted by the board of directors, partners or members, as the case may be, of each of Republic, the Republic Subsidiary Guarantors, and the Allied Subsidiary Guarantors (collectively, the “Guarantors”), each of the Guarantors has duly authorized the guarantee of the Company’s obligations with respect to the Debentures as provided herein (the “Guarantee”); and

WHEREAS, pursuant to the resolutions adopted by the sole member of the Company and by the Board of Directors of the Co-Obligor, the Company has duly authorized the execution and delivery of this Third Supplemental Indenture to provide for the Guarantee.

WHEREAS, in accordance with Section 901 of the Indenture, the Company and the Trustee, without the consent of any Holders of the Debentures, may enter into one or more supplemental indentures to make any provisions with respect to matters arising under the Indenture, provided that such provisions as may be made shall not adversely affect the interests of the Holders of any Securities of any series in any material respect;

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 Debentures, as follows:

ARTICLE I

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION

Section 1.01 Definitions.

All capitalized terms used herein without definition shall have the meanings specified in the Indenture.

Section 1.02 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 1.03 Effectiveness.

This Third Supplemental Indenture shall become effective with respect to the Republic Guarantors upon the effectiveness of the Merger without any further action of any of the parties hereto, and shall become effective with respect to the Allied Subsidiary Guarantors upon the day after the effectiveness of the Merger without any further action of any of the parties hereto.

ARTICLE II

GUARANTEE

Section 2.01 Guarantee.

A. Guarantee. Each of the Guarantors hereby jointly and severally unconditionally guarantees for the benefit of each Holder of a Debenture that has been authenticated and delivered by the Trustee, and for the benefit of the Trustee on behalf of each such Holder, in accordance with the terms and conditions of this Third Supplemental Indenture, the due and punctual payment of the principal of, premium, if any, and interest on such Debenture 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 Debenture and the Indenture. In case of the failure of the Company punctually to make any such payment, each Guarantor hereby jointly and severally agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the stated maturity or by acceleration, call for redemption, purchase or otherwise, and as if such payment were made by the Company. This is a guaranty of payment, not of collection. Except as expressly provided in the Indenture or any Supplemental Indenture to which the Guarantors are parties or any Debenture, each Guarantor further agrees that the obligations guaranteed hereunder may be amended, supplemented, modified, restated, extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any such amendment, supplement, modification, extension or renewal of any such obligation.

B. Release of Guarantors.

(i) Concurrently with the satisfaction and discharge of the Indenture under Section 401 of the Indenture, the Guarantors shall be released from all of their obligations under this Third Supplemental Indenture, and from their obligations, if any, endorsed on any of the Debentures.

(ii) Concurrently with the satisfaction and discharge of either the 2021 Debentures or the 2035 Debentures under Section 403 of the Indenture, the Guarantors shall be released from all of their obligations under this Third Supplemental Indenture with respect to such series of Debentures, and from their obligations, if any, endorsed on any of the Debentures in respect of such series of Debentures.

(iii) Upon the consummation of any transaction (whether involving a sale or other disposition of securities, a merger or otherwise) whereby any Subsidiary Guarantor ceases to be a Subsidiary of Republic, such Subsidiary Guarantor shall automatically, without further action on the part of the Trustee or any Holder of the Debentures, be released from all obligations under this Third Supplemental Indenture, and from its obligations, if any, endorsed on any of the Debentures.

(iv) Concurrently with the termination of any Subsidiary Guarantor’s obligations under its guarantees provided with respect to the Republic Credit Facility (including, but not limited to the Republic Credit Facility Guaranty), or upon the release of any Subsidiary Guarantor from its obligations under the Republic Credit Facility Guaranty, such Subsidiary Guarantor shall automatically, without further action on the part of the Trustee or any Holder of the Debentures, be released from all of its obligations under this Third Supplemental Indenture, and from its obligations, if any, endorsed on any of the Debentures.

ARTICLE III

CONCERNING THE TRUSTEE

Section 3.01 Acceptance of Trusts.

The Trustee accepts the trusts hereunder and agrees to perform the same, but only upon the terms and conditions set forth in the Indenture and in this Third Supplemental Indenture, to all of which the Company, the Co-Obligor and the Guarantors agree and the Holders of Debentures at any time outstanding by their acceptance thereof agree.

Section 3.02 No Responsibility of the Trustee for Recitals, etc.

The recitals and statements contained in this Third Supplemental Indenture shall be taken as the recitals and statements of the Company, the Co-Obligor 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 Third Supplemental Indenture.

ARTICLE IV

MISCELLANEOUS PROVISIONS

Section 4.01 Binding Agreement; Assignments.

Whenever in this Third 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 Third Supplemental Indenture shall bind and inure to the benefit of each party hereto and their respective successors and assigns.

Section 4.02 Relation to Indenture.

This Third 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 Third Supplemental Indenture with the same force and effect as if the same were in this Third Supplemental Indenture set forth in full, with such omissions, variations and modifications thereof as may be appropriate to make each such term and condition conform to this Third 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 Third Supplemental Indenture and the Indenture and this Third Supplemental Indenture shall be read, taken and construed together as one instrument.

Section 4.03 Counterparts.

This Third 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.

[Signatures on Following Pages]

IN WITNESS WHEREOF, THE PARTIES HERETO HAVE caused this Third Supplemental Indenture to be duly executed as of the date and year first written above.


BROWNING-FERRIS INDUSTRIES, LLC
By:	/s/ Jo Lynn White
	Name:	Jo Lynn White
	Title:	Secretary

BBCO, INC.
By:	/s/ Jo Lynn White
	Name:	Jo Lynn White
	Title:	Secretary

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