<Page>
EXHIBIT 4.1
EXECUTION COPY
IESI CORPORATION
THE SUBSIDIARY GUARANTORS PARTIES HERETO
and
THE BANK OF NEW YORK
as Trustee
----------
INDENTURE
----------
Dated as of June 12, 2002
----------
10 1/4% Senior Subordinated Notes due 2012
1
<Page>
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
SECTION PAGE
- ------- ----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. 1
Section 102. Other Definitions. 27
Section 103. Rules of Construction 29
Section 104. Incorporation by Reference of TIA 30
Section 105. Conflict with TIA 30
Section 106. Compliance Certificates and Opinions 30
Section 107. Form of Documents Delivered to Trustee 31
Section 108. Acts of Holders; Record Dates. 32
Section 109. Notices, etc., to the Trustee, the Company and any Subsidiary Guarantor 34
Section 110. Notices to Holders; Waiver 35
Section 111. Effect of Headings and Table of Contents 35
Section 112. Successors and Assigns 35
Section 113. Separability Clause 35
Section 114. Benefit of Indenture 35
Section 115. Governing Law; Waiver of Jury Trial 35
Section 116. Legal Holidays 36
Section 117. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders 36
Section 118. Appendix, Exhibits and Schedules 36
Section 119. Counterparts 36
Section 120. No Adverse Interpretation of Other Agreements 36
ARTICLE 2
NOTE FORMS
Section 201. Forms Generally 37
Section 202. Form of Trustee's Certificate of Authentication. 37
ARTICLE 3
THE NOTES
Section 301. Title and Terms 38
Section 302. Denominations 39
Section 303. Execution, Authentication and Delivery and Dating 39
Section 304. Temporary Notes 40
</Table>
2
<Page>
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
SECTION PAGE
- ------- ----
Section 305. Registration; Registration of Transfer and Exchange 40
Section 306. Mutilated, Destroyed, Lost and Stolen Notes 42
Section 307. Payment of Interest Rights Preserved 42
Section 308. Persons Deemed Owners 43
Section 309. Cancellation 44
Section 310. Computation of Interest 44
Section 311. CUSIP and ISIN Numbers 44
Section 312. Payment of Additional Interest. 44
ARTICLE 4
COVENANTS
Section 401. Payment of Principal, Premium and Interest 45
Section 402. Maintenance of Office or Agency 45
Section 403. Money for Payments To Be Held in Trust 45
Section 404. Reports 47
Section 405. Compliance Certificate. 48
Section 406. Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock 48
Section 407. Limitation on Senior Subordinated Debt 51
Section 408. Limitation on Restricted Payments 52
Section 409. Dividend and Other Payment Restrictions Affecting Subsidiaries 55
Section 410. Asset Sales 57
Section 411. Limitation on Affiliate Transactions 59
Section 412. Limitation on Liens 61
Section 413. Additional Subsidiary Guarantees 61
Section 414. Purchase of Notes Upon a Change in Control 61
Section 415. Limitation on Issuances and Sales of Equity Interests in Wholly Owned
Restricted Subsidiaries 62
Section 416. Limitation on Lines of Business 63
Section 417. Limitations on Sale and Leaseback Transactions 63
Section 418. Limitations on Issuances of Guarantees of Indebtedness 63
Section 419. Designation of Restricted and Unrestricted Subsidiaries 64
Section 420. Corporate Existence 64
Section 421. Payment of Taxes and Other Claims 64
Section 422. Further Instruments and Acts 65
ARTICLE 5
SUCCESSOR COMPANY
</Table>
3
<Page>
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
SECTION PAGE
- ------- ----
Section 501. When the Company May Merge, etc 65
Section 502. Successor Company Substituted 66
ARTICLE 6
EVENTS OF DEFAULT; REMEDIES
Section 601. Events of Default 66
Section 602. Acceleration of Maturity; Rescission and Annulment 69
Section 603. Other Remedies; Collection Suit by Trustee 70
Section 604. Trustee May File Proofs of Claim 70
Section 605. Trustee May Enforce Claims Without Possession of Notes 71
Section 606. Application of Money Collected 71
Section 607. Limitation on Suits 72
Section 608. Unconditional Right of Holders to Receive Principal, Premium and Interest 72
Section 609. Restoration of Rights and Remedies 72
Section 610. Rights and Remedies Cumulative 73
Section 611. Delay or Omission Not Waiver 73
Section 612. Control by Holders 73
Section 613. Waiver of Past Defaults 74
Section 614. Undertaking for Costs 74
Section 615. Waiver of Stay, Extension or Usury Laws 74
ARTICLE 7
THE TRUSTEE
Section 701. Certain Duties and Responsibilities. 75
Section 702. Notice of Defaults 76
Section 703. Certain Rights of Trustee 76
Section 704. Not Responsible for Recitals or Issuance of Notes 78
Section 705. May Hold Notes 78
Section 706. Money Held in Trust 78
Section 707. Compensation and Reimbursement 78
Section 708. Conflicting Interests 79
Section 709. Corporate Trustee Required; Eligibility 80
Section 710. Resignation and Removal; Appointment of Successor 80
Section 711. Acceptance of Appointment by Successor 81
Section 712. Merger, Conversion, Consolidation or Succession to Business 82
Section 713. Preferential Collection of Claims Against the Company 82
</Table>
4
<Page>
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
SECTION PAGE
- ------- ----
Section 714. Appointment of Authenticating Agent 82
ARTICLE 8
HOLDERS' LISTS AND REPORTS BY THE TRUSTEE AND THE COMPANY
Section 801. The Company to Furnish Trustee Names and Addresses of Holders 83
Section 802. Preservation of Information; Communications to Holders 84
Section 803. Reports by Trustee 84
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
Section 901. Without Consent of Holders 84
Section 902. With Consent of Holders 85
Section 903. Execution of Amendments, Supplements or Waivers 86
Section 904. Revocation and Effect of Consents 87
Section 905. Conformity with TIA 87
Section 906. Notation on or Exchange of Notes 87
ARTICLE 10
REDEMPTION OF NOTES
Section 1001. Right of Redemption. 88
Section 1002. Applicability of Article 88
Section 1003. Election to Redeem; Notice to Trustee 89
Section 1004. Selection by Trustee of Notes to Be Redeemed 89
Section 1005. Notice of Redemption 89
Section 1006. Deposit of Redemption Price 90
Section 1007. Notes Payable on Redemption Date 90
Section 1008. Notes Redeemed in Part 91
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture 91
Section 1102. Application of Trust Money 92
ARTICLE 12
</Table>
5
<Page>
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
SECTION PAGE
- ------- ----
DEFEASANCE OR COVENANT DEFEASANCE
Section 1201. The Company's Option to Elect Legal Defeasance or Covenant Defeasance 93
Section 1202. Legal Defeasance and Discharge 93
Section 1203. Covenant Defeasance 94
Section 1204. Conditions to Defeasance or Covenant Defeasance 94
Section 1205. Deposited Money and Government Securities To Be Held in Trust;
Other Miscellaneous Provisions 96
Section 1206. Reinstatement 97
Section 1207. Repayment to the Company 97
ARTICLE 13
SUBSIDIARY GUARANTEES
Section 1301. Subsidiary Guarantees Generally. 97
Section 1302. Continuing Guarantees 99
Section 1303. Release of Subsidiary Guarantees 100
Section 1304. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms. 100
Section 1305. Agreement to Subordinate 101
Section 1306. Waiver of Subrogation 102
Section 1307. Notation Not Required 102
Section 1308. Successors and Assigns of the Subsidiary Guarantors 102
Section 1309. Execution and Delivery of Subsidiary Guarantees 102
Section 1310. Notices 103
ARTICLE 14
SUBORDINATION
Section 1401. Agreement to Subordinate 103
Section 1402. Liquidation; Dissolution; Bankruptcy 103
Section 1403. Default on Designated Senior Indebtedness 103
Section 1404. Acceleration of Securities 104
Section 1405. When Distribution Must Be Paid Over. 104
Section 1406. Notice by the Company 105
Section 1407. Subrogation 105
Section 1408. Relative Rights. 105
Section 1409. Subordination May Not Be Impaired by the Company 106
</Table>
6
<Page>
TABLE OF CONTENTS
(continued)
<Table>
<Caption>
SECTION PAGE
- ------- ----
Section 1410. Distribution or Notice to Representative. 106
Section 1411. Rights of Trustee and Paying Agent. 106
Section 1412. Authorization to Effect Subordination 106
Section 1413. Trust Moneys Not Subordinated 107
Section 1414. Trustee Entitled To Rely 107
Section 1415. No Suspension of Remedies 107
Section 1416. Trustee Not Fiduciary for Holders of Senior Indebtedness 108
Appendix A Provisions Relating To Notes 1
Exhibit A Form of Note
Exhibit B Form of Supplemental Indenture
Exhibit C Form of Regulation S Certificate
Exhibit D Form of Certificate to be Delivered in Connection with Transfers to
Institutional Accredited Investors
</Table>
7
<Page>
CROSS-REFERENCE TABLE
(continued)
<Table>
<Caption>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
Section 310(a)(1) 709
(a)(2) 709
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 708
Section 311(a) 713
(b) 713
(b)(2) 803
803
Section 312(a) 801
802
(b) 802
(c) 802
Section 313(a) 803
(b) 803
(c) 803
803
(d) 803
Section 314(a) 404
(a)(4) 102
405
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 701
(b) 702
803
(c) 701
(d) 701
(d)(1) 701
(d)(2) 701
</Table>
8
<Page>
CROSS-REFERENCE TABLE
(continued)
<Table>
(d)(3) 701
(e) 614
Section 316(a) 101
612
(a)(1)(A) 602
612
(a)(1)(B) 613
(a)(2) Not Applicable
(b) 608
(c) 104
Section 317(a)(1) 603
(a)(2) 604
(b) 403
Section 318(a) 107
</Table>
- ----------
This cross-reference table shall not for any purpose be deemed to be part of
this Indenture.
9
<Page>
INDENTURE, dated as of June 12, 2002 (as amended, supplemented or otherwise
modified from time to time, this "INDENTURE"), among IESI Corporation, a
Delaware corporation, the Subsidiary Guarantors (as defined herein) and The Bank
of New York, a New York banking corporation, as trustee.
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Notes. On the date hereof, all
Subsidiaries of the Company are Subsidiary Guarantors. Each Subsidiary Guarantor
has duly authorized the execution and delivery of this Indenture to provide for
its guarantee of the Notes, as provided in this Indenture. Each Subsidiary
Guarantor has received good and valuable consideration for its execution and
delivery of this Indenture and its guarantee of the Notes.
All things necessary to make the Original Notes, when executed and
delivered by the Company and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Indenture a valid agreement of each of the Company and each
Subsidiary Guarantor as of the date hereof, in accordance with the terms of the
Original Notes and this Indenture, have been done.
NOW, THEREFORE:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually agreed, for the equal and ratable benefit of
all Holders, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or becomes a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging
with or into, or becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
10
<Page>
"ADDITIONAL NOTES" means any notes issued under this Indenture in addition
to the Original Notes (other than any Notes issued in respect of Initial Notes
(or related Exchange Notes) pursuant to SECTION 304, 305, 306, or 1008 of this
Indenture or SECTION 2.3(b) of the Appendix).
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; PROVIDED that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" shall have correlative meanings.
"APPENDIX" means Appendix A.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights, other than sales of inventory in the ordinary course of
business consistent with past practices; PROVIDED that the sale,
conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole
will be governed by the provisions of the Indenture described in
SECTION 414 of this Indenture and/or the provisions described in
SECTION 501 of this Indenture and not by the provisions of SECTION 410
hereof; and
(2) the issuance of Equity Interests by any of the Company's Restricted
Subsidiaries or the sale of Equity Interests in any of its Restricted
Subsidiaries.
Notwithstanding the preceding, the following items shall not be deemed to
be Asset Sales:
(1) any single transaction or series of related transactions that: (a)
involves assets having a fair market value of less than $2.0 million;
or (b) results in net proceeds to the Company and its Restricted
Subsidiaries of less than $2.0 million;
(2) a transfer of assets between or among the Company and its Restricted
Subsidiaries,
11
<Page>
(3) an issuance of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary;
(4) a Restricted Payment that is permitted by SECTION 408 of this
Indenture and Permitted Investments;
(5) a disposition of Receivables and Related Assets with respect to
Receivables Program permitted by clause (13) of the second paragraph
of SECTION 406 of this Indenture; and
(6) sales or other dispositions of equipment that has become worn out,
obsolete or damaged or otherwise unsuitable for use in connection with
the business of the Company or its Restricted Subsidiaries; the sale
or disposition of cash or Cash Equivalents; the release, surrender or
waiver of contract, tort or other claims of any kind as a result of
the settlement of any litigation; and sales of assets received by the
Company or any Restricted Subsidiary as a result of a foreclosure upon
a Lien securing Indebtedness owed to the Company or such Restricted
Subsidiary.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction means,
at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee pursuant
to SECTION 714 to act on behalf of the Trustee to authenticate Notes of one or
more series.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as such term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.
"BOARD OF DIRECTORS" means, as to any Person, (i) for a corporation, the
board of directors of such corporation or (ii) for another entity, the governing
body performing a similar function of such Person.
"BORROWING BASE" means, at any time of determination, an amount equal to
80% of the book value of the net accounts receivable that are owned by such
Person as shown
12
<Page>
on the balance sheet of such Person for the most recently ended fiscal quarter
for which consolidated financial statements of such Person are available.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on
which commercial banking institutions are authorized or required by law to close
in New York City.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock (including all preferred
stock);
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than six
months from the date of acquisition;
(3) demand deposits, certificates of deposit and eurodollar time deposits
with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year and
overnight bank deposits, in each case, with any domestic commercial
bank having capital and surplus in excess of $100 million;
(4) repurchase obligations with a term of not more than 30 days for
underlying
13
<Page>
securities of the types described in clauses (2) and (3) above entered
into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing within nine months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (5) of this
definition.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the sale, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Subsidiaries taken as a whole to any "person" (as such term is
used in Section 13(d)(3) of the Exchange Act) other than a Principal
or a Related Party of a Principal;
(2) (a) the adoption of a plan relating to the liquidation or dissolution
of the Company, or
(b) any LSA Event;
(3) the consummation of any transaction (including, without limitation,
any merger or consolidation)
(a) prior to a Public Equity Offering, the result of which is that
(I) the Permitted Holders and their Related Parties (A) become
the Beneficial Owners of less than a majority of the voting power
of all classes of Voting Stock of the Company or (B) cease to be
entitled by voting power, contract or otherwise to elect or cause
the election of a majority of the directors of the Company or
(II) the Principals and their Related Parties (A) become the
Beneficial Owner of less than 35% of the voting power of all
classes of Voting Stock of the Company or (B) cease to be
entitled by voting power, contract or otherwise to elect or cause
the election of 35% or more of the directors of the Company or
(b) at any time, the result of which is that any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Principals and their Related
Parties,
14
<Page>
(I) becomes the Beneficial Owner, directly or indirectly of 35%
or more of the voting power of all classes of Voting Stock of the
Company, and (II)(A) is or becomes, directly or indirectly, the
Beneficial Owner of a greater percentage of the voting power of
all classes of Voting Stock of the Company than the percentage
beneficially owned by the Principals and their Related Parties or
(B) is or becomes entitled by voting power, contract or otherwise
to elect or cause the election of a greater number of directors
than the number of directors that the Principals or their Related
Parties are entitled to elect or cause to be elected;
(4) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors; or
(5) the Company consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company is converted into or exchanged
for cash, securities or other property, other than any such
transaction where
(A) the Voting Stock of the Company outstanding immediately prior to
such transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the voting power of all classes
of Voting Stock of such surviving or transferee Person
(immediately after giving effect to such issuance) and
(B) immediately after such transaction
(a) prior to a Public Equity Offering, (I) the Permitted Holders
and their Related Parties (A) are the Beneficial Owner of a
majority of the voting power of all classes of Voting Stock
of the Company and (B) are entitled by voting power,
contract or otherwise to elect or cause the election of a
majority of the directors of the Company and (II) the
Principals and their Related Parties (A) are the Beneficial
Owner of at least 35% of the voting power of all classes of
Voting Stock of the Company and (B) are entitled by voting
power, contract or otherwise to elect or cause the election
of 35% or more of the directors of the Company and
(b) at any time, no "person" or "group" (as such terms are used
15
<Page>
in Section 13(d) and 14(d) of the Exchange Act), other than
the Principals and their Related Parties, (I) becomes,
directly or indirectly, the Beneficial Owner of 35% or more
of the voting power of all classes of Voting Stock of the
Company, as the case may be, and (II)(A) is or becomes,
directly or indirectly, the Beneficial Owner of a greater
percentage of the voting power of all classes of Voting
Stock of the Company, as the case may be, than the
percentage beneficially owned by the Principals and their
Related Parties or (B) is or becomes entitled by voting
power, contract or otherwise to elect or cause the election
of a greater number of directors than the number of
directors that the Principals or their Related Parties are
entitled to elect or cause to be elected.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means IESI Corporation, a Delaware corporation, until a successor
corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor corporation.
"COMPANY REQUEST," "COMPANY ORDER" and "COMPANY CONSENT" mean,
respectively, a written request, order or consent signed in the name of the
Company by two Officers of the Company.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus:
(1) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net
Income; plus
(2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether or not paid or accrued and
whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount,
non-cash interest expense, the interest component of any deferred
payment obligations, amortization of premiums, fees and expenses
payable in connection with the incurrence of Indebtedness, receivables
fees, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges
16
<Page>
incurred in respect of letter of credit or bankers' acceptance
financings, and net costs, if any, pursuant to Hedging Obligations),
to the extent that any such expense was deducted in computing such
Consolidated Net Income; plus
(3) depreciation, depletion, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, depletion, amortization
and other non-cash expenses were deducted in computing such
Consolidated Net Income; plus
(4) any non-cash charge, together with any related provision for taxes on
such charge, related to the writeoff of goodwill or intangibles as a
result of impairment, in each case, as required by SFAS No. 142 or
SFAS No. 144 to the extent any such charges or provisions were
deducted in computing such Consolidated Net Income; minus
(5) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of
business and consistent with past practice,
in each case, on a consolidated basis and determined in accordance with
GAAP.
Notwithstanding the preceding, the provision for taxes based on the income
or profits of, and the depreciation, depletion and amortization expenses and
other non-cash charges of, a Restricted Subsidiary of the Company shall be added
to Consolidated Net Income to compute Consolidated Cash Flow of the Company only
to the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP (except as provided in the definition of "Net Income"); provided that:
(1) the Net Income (but not loss) of any Person that is not a Restricted
17
<Page>
Subsidiary or that is accounted for by the equity method of accounting
shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Subsidiary
thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not
at the date of determination permitted without prior governmental
approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders;
(3) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall
be excluded;
(4) the Net Income (but not loss) of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the specified Person or one of
its Subsidiaries; and
(5) the cumulative effect of a change in accounting principles shall be
excluded.
"CONTINUING DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of the Indenture;
or
(2) was nominated for election or elected to such Board of Directors (a)
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election or
(b) pursuant to the Amended and Restated Stockholders' Agreement,
dated as of September 10, 2001, by and among the Company, the
stockholders named on the signature pages thereto, J. Bruce Boisture,
as Warrant Holder, and each other person that may become a stockholder
or a warrant holder thereunder from time to time as the same may be
amended or modified from time to time.
"CORPORATE TRUST OFFICE" means the office of the Trustee or an Affiliate of
the Trustee in the Borough of Manhattan, The City of New York, at which at any
particular time its corporate trust business shall be administered, which office
on the Issue Date is located at 101 Barclay Street, New York, New York 10286,
Attention: Corporate Trust Administration.
18
<Page>
"CREDIT AGREEMENT" means the Fourth Amended and Restated Revolving Credit
and Term Loan Agreement, dated as of September 14, 2001 among the Company and
its Subsidiaries; Fleet National Bank, as Administrative Agent; LaSalle Bank
National Association, as Documentation Agent; Credit Suisse First Boston, as
Syndication Agent; Citicorp North America, Inc., as Syndication Agent; and
certain other Lenders party thereto, as amended, restated, modified, renewed,
refunded, replaced, refinanced or otherwise restructured (whether with the
existing agents or lenders or new agents or lenders or otherwise).
"CREDIT FACILITIES" means, with respect to the Company or any Subsidiary
Guarantor, one or more debt facilities (including without limitation the Credit
Agreement) or commercial paper facilities entered into from time to time, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced, refinanced or
otherwise restructured (whether with the existing agents or lenders or new
agents or lenders or otherwise) in whole or in part from time to time (including
increases in the available borrowings thereunder or the addition of Subsidiaries
of the Company as additional borrowers or guarantors thereunder).
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) any Indebtedness outstanding
under the Credit Agreement and (ii) after the Credit Agreement has terminated,
any Senior Indebtedness permitted under the Indenture the principal amount of
which is $25.0 million or more and that has been designated by the Company as
"Designated Senior Indebtedness."
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof (other than for Capital Stock which is not itself Disqualified Stock),
in whole or in part, on or prior to the date that is one year after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock expressly provide that the
Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption
19
<Page>
complies with SECTION 408.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the Company that is formed
under the laws of the United States, or any state or commonwealth of the United
States, or the District of Columbia.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock, and excluding any
interests in Receivables and Related Assets that are subject to a Receivables
Program permitted by the Indenture).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the date of the Indenture, until such amounts are repaid.
"EXCHANGE NOTES" means the Company's 10 1/4% Senior Subordinated Notes due
2012, containing terms identical to the Initial Notes or any Initial Additional
Notes (except that (i) such Exchange Notes shall not contain terms with respect
to transfer restrictions and shall be registered under the Securities Act, and
(ii) certain provisions relating to an increase in the stated rate of interest
thereon shall be eliminated), that are issued and exchanged for (a) the Initial
Notes, as provided for in the Registration Rights Agreement, or (b) such Initial
Additional Notes as may be provided in any registration rights agreement
relating to such Additional Notes and this Indenture (including any amendment or
supplement hereto).
"FIXED CHARGES" means, with respect to any Person for any period, the sum,
without duplication, of:
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether or not paid or accrued, and
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest expense, the interest
component of any deferred payment obligations, amortization of
premiums, fees and expenses payable in connection with the incurrence
of Indebtedness, receivables fees, the interest component of all
payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net costs, if any, pursuant to Hedging
Obligations; plus
(2) the consolidated interest of such Person and its Restricted
Subsidiaries that
20
<Page>
was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon;
plus
(4) all dividends, whether or not paid or accrued, on any series of
Disqualified Stock of such Person or any of its Restricted
Subsidiaries and all dividends paid in cash on any series of preferred
stock of such Person or any of its Restricted Subsidiaries, in each
case, other than dividend payments to the Company or a Wholly Owned
Subsidiary of the Company.
"FIXED CHARGE COVERAGE RATIO" means with respect to any specified Person
for any period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person for
such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any
Indebtedness (other than revolving credit borrowings) or issues, repurchases or
redeems Disqualified Stock or preferred stock subsequent to the commencement of
the period for which the Fixed Charge Coverage Ratio is being calculated but on
or prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "CALCULATION DATE"), then the Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or
such issuance, repurchase or redemption of Disqualified Stock or preferred
stock, and the use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations
and including any related financing transactions, during the
applicable period or subsequent to such applicable period and on or
prior to the Calculation Date shall be given pro forma effect as if
they had occurred on the first day of the applicable period and the
Consolidated Cash Flow for such applicable period shall be calculated
on a pro forma basis (including Pro Forma Cost Savings), but without
giving effect to clause (3) of the proviso set forth in the definition
of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses
21
<Page>
disposed of prior to the Calculation Date, shall be excluded for the
entire applicable period; and
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded for the
entire applicable period, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the
Calculation Date.
"FOREIGN SUBSIDIARY" means a Restricted Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"GOVERNMENT SECURITY" means (x) any security that is (i) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case under the preceding clause (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in SECTION 3(a)(2) of the
Securities Act) as custodian with respect to any Government Security that is
specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any Government Security that is so specified and
held, PROVIDED that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the Government
Security or the specific payment of principal or interest evidenced by such
depositary receipt.
"GUARANTEE" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
22
<Page>
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations of
such Person under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; and other agreements or arrangements
designed to protect such Person against fluctuations in interest
rates;
(2) recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other
products swap agreements and other agreements or arrangements designed
to protect such Person against fluctuations in prices for paper,
fiber, aluminum, tin, glass, rubber, plastics or other recycled
products; and
(3) fuel swap agreements and other agreements or arrangements designed to
protect such Person against fluctuations in fuel prices.
"HOLDER" means the Person in whose name a Note is registered on The
Registrar's books.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of
any property, except any such balance that constitutes an accrued
expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes (i) all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person), (ii) all obligations in respect of any Receivables
Program and (iii) to the extent not otherwise included, the Guarantee by such
Person of any indebtedness of any other Person.
23
<Page>
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount;
(2) with respect to any Receivables Program, the total amount in respect
of the Receivables and Related Assets (or any interests therein)
received from any Person that is not the Company or a Restricted
Subsidiary of the Company, less any collections on receivables that
have been applied to reduce such total amount; and
(3) the principal amount thereof, in the case of all other Indebtedness.
"INITIAL ADDITIONAL NOTES" means Additional Notes issued in an offering not
registered under the Securities Act.
"INITIAL NOTES" means the Company's 10 1/4% Senior Subordinated Notes due
2012, issued on the Issue Date (and any Notes issued in respect thereof pursuant
to SECTION 304, 305, 306, or 1008 of this Indenture or SECTION 2.3(b) of the
Appendix).
"INTEREST PAYMENT DATE" means, when used with respect to any Note and any
installment of interest thereon, the date specified in such Note as the fixed
date on which such installment of interest is due and payable, as set forth in
such Note.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel, moving,
entertainment and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Restricted Subsidiary of the
Company, the Company shall be deemed to have made an Investment on the date of
any such sale or disposition equal to the fair market value of the Equity
Interests of such Restricted Subsidiary not sold or disposed of in an amount
determined as provided in the final paragraph of SECTION 408.
"ISSUE DATE" means the first date on which the Initial Notes are issued.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed,
24
<Page>
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.
"LSA EVENT" means the occurrence of (1) any of the following under (and as
such terms are defined in) the Company's certificate of incorporation as in
effect on the date of the Indenture: (i) a "Liquidation," (ii) a "Sale
Transaction," and (iii) an "Asset Sale" and (2) any substantially similar event
provided for in any subsequent amendment or restatement of the Company's
certificate of incorporation.
"NET INCOME" means, with respect to any Person, the net income (loss) of
such Person and its Restricted Subsidiaries, determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends, excluding,
however:
(1) any gain or loss, together with any related provision for taxes on
such gain or loss, realized in connection with: (a) any sale or other
disposition of any asset of the Company, its consolidated Subsidiaries
or any other Person (including pursuant to any sale-and-leaseback
arrangement) which is not sold or otherwise disposed of in the
ordinary course of business; or (b) the disposition of any securities
by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related provision
for taxes on such extraordinary gain or loss.
"NET PROCEEDS" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof, in each
case after taking into account any available tax credits or deductions and any
tax sharing arrangements and amounts required to be applied to the repayment of
Indebtedness, other than Senior Indebtedness, secured by a Lien on the asset or
assets that were the subject of such Asset Sale.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any undertaking,
25
<Page>
agreement or instrument that would constitute Indebtedness), (b) is
directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or
both any holder of any other Indebtedness (other than the Notes) of
the Company or any of its Restricted Subsidiaries to declare a default
on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and
(3) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries.
"NOTES" means the Initial Notes, any Additional Notes, and the Exchange
Notes.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, any
Executive Vice President or Senior Vice President, the Treasurer, the
Controller, the Chief Accounting Officer or the Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee.
"ORIGINAL NOTES" means the Initial Notes and any Exchange Notes issued in
exchange therefor.
"OUTSTANDING" when used with respect to Notes means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary
amount
26
<Page>
has been theretofore deposited with the Trustee or any Paying Agent in
trust for the Holders of such Notes, provided that, if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has
been made; and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Company or any
Affiliate of the Company holds the Note, provided that in determining whether
the Holders of the requisite amount of Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Notes
owned by the Company or any Affiliate of the Company shall be disregarded and
deemed not to be Outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the reasonable satisfaction of the
Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Company or an Affiliate of the Company.
"PARI PASSU INDEBTEDNESS" means
(1) with respect to the Company, Indebtedness which by its terms expressly
ranks equal in right of payment to the Notes and which is not
subordinated by its terms in right of payment to any Indebtedness or
other obligation that is not Senior Indebtedness; and
(2) with respect to any Subsidiary Guarantor, Indebtedness which by its
terms expressly ranks equal in right of payment to the Subsidiary
Guarantee of such Subsidiary Guarantor and which is not subordinated
by its terms in right of payment to any Indebtedness or other
obligation that is not Senior Indebtedness.
"PAYING AGENT" means any Person authorized by the Company (including the
Company and any of its Domestic Subsidiaries) to pay the principal of (and
premium, if any) or interest on any Notes on behalf of the Company.
"PERMITTED BUSINESS" means any business that derives its revenues from the
collection, transfer, disposal or recycling of non-hazardous commercial,
residential or industrial solid waste or any businesses or activities ancillary,
complementary or reasonably related thereto (in the good faith determination of
the Board of Directors of the Company, which shall be conclusive evidence
thereof).
27
<Page>
"PERMITTED HOLDERS" means the Principals, Charles F. Flood, Environmental
Opportunities Fund II, L.P., a Delaware limited partnership; Environmental
Opportunities Fund II (Institutional), L.P., a Delaware limited partnership;
Environmental Opportunities Fund, L.P., a Delaware limited partnership;
BancBoston Investments, Inc., a Massachusetts corporation; Suez Equity Investors
L.P., a Delaware limited partnership; Indosuez Capital Partners 2001, L.P.; and
SEI Associates, a Delaware partnership.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company or in a Restricted Subsidiary of the
Company, other than a Foreign Subsidiary;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
(b) such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys all or substantially all of its assets
to, or is liquidated into, the Company or a Restricted Subsidiary
of the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with SECTION 410;
(5) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company;
(6) any Investment in (or in a Person that, upon making such investment,
becomes) a Foreign Subsidiary, provided that any such Investment has
an aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant
to this clause (6) since the date of the Indenture, not to exceed $10
million;
(7) other Investments in any Person having an aggregate fair market value
(measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (7) since the date of
the Indenture, not to exceed $10 million; and
28
<Page>
(8) (a) an Investment in a trust, limited liability company, special
purpose entity or other similar entity in connection with a
Receivables Program; provided, however, that (A) such Investment is
made by a Receivables Subsidiary and (B) the only assets transferred
to such trust, limited liability company, special purpose entity or
other similar entity consist of Receivables and Related Assets of such
Receivables Subsidiary, and (b) Investments of funds in any accounts
permitted or required by the arrangements governing a Receivables
Program.
"PERMITTED JUNIOR SECURITIES" means: (1) Equity Interests in the Company or
any Subsidiary Guarantor; or (2) debt securities of the Company or any
Subsidiary Guarantor that are subordinated to all Senior Indebtedness and any
debt securities issued in exchange for Senior Indebtedness to substantially the
same extent as, or to a greater extent than, the Notes and the Subsidiary
Guarantees are subordinated to Senior Indebtedness pursuant to the Indenture.
"PERMITTED LIENS" means:
(1) Liens in favor of the Company or the Subsidiary Guarantors;
(2) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with, or otherwise acquired by,
the Company or any Restricted Subsidiary of the Company; provided that
such Liens were not incurred in connection with the financing of such
transaction and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or the Restricted
Subsidiary;
(3) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided that
such Liens were not incurred in connection with the financing of such
transaction;
(4) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds, bid bonds or other obligations of a
like nature incurred in the ordinary course of business;
(5) Liens existing on the date of the Indenture and extensions thereof;
(6) Liens on Receivables and Related Assets to reflect sales of
receivables pursuant to a Receivables Program; and
(7) Liens on any landfill acquired after the date of the Indenture
securing reasonable royalty or similar payments (determined by
reference to volume
29
<Page>
or weight utilized) due to the seller of such landfill as a
consequence of such acquisition.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus accrued interest
on, the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of
payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded; and
(4) such Indebtedness is incurred either by the Restricted Subsidiary who
is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded or by the Company.
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or agency or political subdivision thereof or any other
entity.
"PLACE OF PAYMENT" means a city or any political subdivision thereof
referred to in ARTICLE 3 and initially designated under SECTION 402.
"PREDECESSOR NOTES" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under SECTION 306 in
30
<Page>
lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Note.
"PRINCIPAL" means Jeffrey J. Keenan; IESI Capital LLC, a Mississippi
limited liability company; IESI Capital II LLC, a Mississippi limited
partnership; IESI Capital III LLC, a Mississippi limited liability company; IESI
Capital IV LLC, a Mississippi limited liability company; IESI Capital V, LLC, a
Mississippi limited liability company; TC Carting, L.L.C., a Delaware limited
liability company; Thayer Equity Investors IV, L.P.; and TC Carting II, L.L.C.,
a Delaware limited liability company.
"PRO FORMA COST SAVINGS" means, with respect to any period, the reduction
in costs that occurred during the four-quarter period or after the end of the
four-quarter period and on or prior to the transaction date that were directly
attributable to an asset acquisition and calculated on a basis that is
consistent with Article 11 of Regulation S-X under the Securities Act as in
effect on the date of this Indenture, as if all the reductions in costs had been
effected as of the beginning of the period.
"PUBLIC EQUITY OFFERING" means any underwritten public offering of and sale
for cash of common stock of the Company (and not of any Disqualified Stock) made
on a primary basis by the Company after the date of the Indenture.
"RECEIVABLES AND RELATED ASSETS" means accounts receivable, instruments,
chattel paper, obligations, general intangibles and other similar assets,
including interests in merchandise or goods, the sale or lease of which give
rise to the foregoing, related contractual rights, guarantees, insurance
proceeds, collections, other related assets and proceeds of all the foregoing.
"RECEIVABLES ENTITY" means (a) any Receivables Subsidiary or (b) any other
Person that is engaged in the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time), other
accounts and/or other receivables, and/or related assets.
"RECEIVABLES PROGRAM" means, with respect to any Person, any accounts
receivable securitization program pursuant to which such Person pledges, sells
or otherwise transfers or encumbers its accounts receivable, including a trust,
limited liability company, special purpose entity or other similar entity.
"RECEIVABLES SUBSIDIARY" means a Wholly Owned Subsidiary (i) created for
the purpose of financing receivables created in the ordinary course of business
of the Company and its Subsidiaries and (ii) the sole assets of which consist of
Receivables and Related Assets of the Company and its Subsidiaries and related
Permitted Investments.
31
<Page>
"REGISTRATION RIGHTS AGREEMENT" means (1) with respect to the Initial Notes
issued on the Issue Date, the Registration Rights Agreement, dated as of June 7,
2002, among the Company, each of the Subsidiary Guarantors named therein, and
Credit Suisse First Boston Corporation and Salomon Smith Barney Inc., as
Representatives of the Initial Purchasers and (2) with respect to each issuance
of Initial Additional Notes, any registration rights agreement among the
Company, the Subsidiary Guarantors and the Initial Purchasers of such Initial
Additional Notes.
"REGULATION S" means Regulation S under the Securities Act.
"RELATED PARTY" with respect to any Person means:
(1) any controlling stockholder, 80% or more owned Subsidiary, or spouse
or immediate family member (in the case of an individual) of such
Person; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners, managing members or
Persons beneficially holding an 80% or more controlling interest of
which consist of such Principal and/or such other Persons referred to
in the immediately preceding clause (1); or any Related Party Fund of
such Person.
"RELATED PARTY FUND" means:
(1) with respect to a Person that is an investment fund or vehicle having
Beneficial Ownership of Capital Stock of the Company on the date of
the Indenture (an "existing fund"): any other investment fund or
vehicle that is managed, sponsored or advised to substantially the
same extent as the existing fund by the same manager, sponsor or
advisor of the existing fund (or by a manager, sponsor or advisor with
substantially the same controlling interest); and
(2) with respect to a Person that is a manager, sponsor or advisor of an
existing fund: any investment fund or vehicle that is managed,
sponsored or advised to substantially the same extent as the existing
fund by such manager, sponsor or advisor (or by a manager, sponsor or
advisor with substantially the same controlling interest).
"REPRESENTATIVE" means any trustee, agent or representative (if any) for an
issue of Senior Indebtedness; provided that when used in connection with the
Credit Agreement, the term "Representative" shall refer to the administrative
agent under the Credit Agreement (so long as there shall be an administrative
agent).
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any vice
32
<Page>
president or assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or assistant trust officer working in its Corporate
Trust Office or any other officer of the Trustee working in its Corporate Trust
Office customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means:
(1) all Indebtedness outstanding under Credit Facilities and all Hedging
Obligations with respect thereto;
(2) any other Indebtedness permitted to be incurred by the Company under
the terms of the Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity
with or subordinated in right of payment to the notes; and
(3) all Obligations with respect to the items listed in the preceding
clauses (1) and (2).
Notwithstanding anything to the contrary in the preceding, Senior
Indebtedness will not include:
(1) any liability for federal, state, local or other taxes owed or owing
by the Company or any of its Subsidiaries;
(2) any Indebtedness of the Company to any of its Subsidiaries or other
Affiliates;
(3) any trade payables;
(4) any Indebtedness of a Person that is subordinate or junior in right of
payment to any other Indebtedness or other obligations of such Person;
or
(5) any Indebtedness that is incurred in violation of the Indenture.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a "significant
33
<Page>
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof,
provided, however, that every reference to 10% in such definition shall be 5%
for purposes of the Notes.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to SECTION 307.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBORDINATED INDEBTEDNESS" means,
(1) with respect to the Company, any Indebtedness of the Company which is
by its terms expressly subordinated in right of payment to the Notes;
and
(2) with respect to any Subsidiary Guarantor, any Indebtedness of such
Subsidiary Guarantor which is by its terms expressly subordinated in
right of payment to the Subsidiary Guarantee of such Subsidiary
Guarantor.
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof); and
(2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"SUBSIDIARY GUARANTEE" means a Guarantee by a Subsidiary Guarantor of the
Company's obligations with respect to the Notes.
"SUBSIDIARY GUARANTORS" means each of:
(1) each of the Company's current Subsidiaries; and
34
<Page>
(2) any other subsidiary that executes a Subsidiary Guarantee in
accordance with the provisions of the Indenture;
and their respective successors and assigns.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-7bbbb) as in effect on the date of this Indenture; PROVIDED, HOWEVER, that
in the event the Trust Indenture Act of 1939 is amended after such date, then
"TIA" means, to the extent such amendment to the TIA is required by such
amendment to be incorporated into this Indenture, the Trust Indenture Act of
1939 as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless
the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted
Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or
preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results;
(4) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and
(5) has at least one director on its Board of Directors that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries.
35
<Page>
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by SECTION 419. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date and, if such Indebtedness is not permitted to be incurred as of such
date under SECTION 406, the Company shall be in default of such covenant. The
Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (1) such Indebtedness is permitted under
SECTION 406, calculated on a pro forma basis as if such designation had occurred
at the beginning of the four-quarter reference period; and (2) no Default or
Event of Default would be in existence following such designation.
"VOTING STOCK" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity,
in respect thereof, by (b) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making
of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person and/or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
Section 102. OTHER DEFINITIONS.
Term Defined in
---- ----------
"ACT" Section 108
36
<Page>
"AFFILIATE TRANSACTION" Section 411
"APPLICABLE PROCEDURE" Section 1.1(a) of Appendix A
"ASSET SALE OFFER" Section 410
"AUTHENTICATION ORDER" Section 303
"BANKRUPTCY LAW" Section 601
"CERTIFICATED NOTE" Section 1.1(a) of Appendix A
"CERTIFICATED NOTES LEGEND" Section 1.1(a) of Appendix A
"CHANGE OF CONTROL OFFER" Section 414
"CHANGE OF CONTROL PAYMENT DATE" Section 414
"CLEARSTREAM" Section 1.1(a) of Appendix A
"COVENANT DEFEASANCE" Section 1203
"CUSTODIAN" Section 601
"DEFAULTED INTEREST" Section 307
"DEFEASED NOTES" Section 1201
"DEPOSITORY" Section 1.1(a) of Appendix A
"DOLLARS" Section 103
"EUROCLEAR" Section 1.1(a) of Appendix A
"EVENT OF DEFAULT" Section 601
"EXCESS PROCEEDS" Section 410
"EXPIRATION DATE" Section 108
"GLOBAL NOTE" Section 2.1(b) of Appendix A
"GLOBAL NOTES" Section 2.1(b) of Appendix A
"GLOBAL NOTES LEGEND" Section 1.1(a) of Appendix A
"GUARANTEED OBLIGATIONS" Section 1301
"INCUR" Section 406
"INITIAL LIEN" Section 412
"INITIAL PURCHASERS" Section 1.1(a) of Appendix A
"ISSUE" Section 406
"LEGAL DEFEASANCE" Section 1202
"NONPAYMENT DEFAULT" Section 1403
"NON-U.S. PERSON" Section 1.1(a) of Appendix A
"NOTE REGISTER" Section 305
"NOTES CUSTODIAN" Section 1.1(a) of Appendix A
"NOTICE OF ACCELERATION" Section 602
"NOTICE OF DEFAULT" Section 601
"PARTICIPANTS" Section 2.1(c) of Appendix A
"PAYMENT BLOCKAGE PERIOD" Section 1403
"PAYMENT DEFAULT" Section 601
"PERMANENT REGULATION S GLOBAL NOTE" Section 2.1(b) of Appendix A
"PERMITTED DEBT" Section 406
"PRIVATE EXCHANGE" Section 1.1(a) of Appendix A
37
<Page>
"PRIVATE EXCHANGE NOTES" Section 1.1(a) of Appendix A
"PRIVATE PLACEMENT LEGEND" Section 1.1(a) of Appendix A
"PURCHASE AGREEMENT" Section 1.1(a) of Appendix A
"QIB" Section 1.1(a) of Appendix A
"REGISTERED EXCHANGE OFFER" Section 1.1(a) of Appendix A
"REGISTRAR" Section 305
"REGULAR RECORD DATE" Section 301
"REGULATION S GLOBAL NOTE" Section 2.1(b) of Appendix A
"REGULATION S NOTES" Section 1.1(a) of Appendix A
"RESALE RESTRICTION TERMINATION DATE" Section 1.1(a) of Appendix A
"RESTRICTED PAYMENT" Section 408
"RESTRICTED PERIOD" Section 1.1(a) of Appendix A
"RESTRICTED SECURITY" Section 1.1(a) of Appendix A
"RULE 144" Section 1.1(a) of Appendix A
"RULE 144A" Section 1.1(a) of Appendix A
"RULE 144A GLOBAL NOTES" Section 2.1(b) of Appendix A
"RULE 144A NOTES" Section 1.1(a) of Appendix A
"RULE 501" Section 1.1(a) of Appendix A
"SHELF REGISTRATION STATEMENT" Section 1.1(a) of Appendix A
"SUCCESSOR COMPANY" Section 501
"TEMPORARY REGULATION S GLOBAL NOTE" Section 2.1(b) of Appendix A
Section 103. RULES OF CONSTRUCTION. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Indenture have the meanings assigned to
them in this Indenture;
(2) "OR" is not exclusive;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) all references to "$" or "DOLLARS" shall refer to the lawful
currency of the United States of America;
(6) the words "INCLUDE," "INCLUDED" and "INCLUDING" as used herein
shall be
38
<Page>
deemed in each case to be followed by the phrase "WITHOUT LIMITATION," if
not expressly followed by such phrase or the phrase "BUT NOT LIMITED TO";
(7) words in the singular include the plural, and words in the plural
include the singular;
(8) references to any statute, law, rule or regulation shall be
deemed to refer to the same as from time to time amended and in effect and
to any successor statute, law, rule or regulation; and
(9) any reference to a Section or Article refers to such Section or
Article of this Indenture.
Section 104. INCORPORATION BY REFERENCE OF TIA. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. This Indenture is subject to the mandatory
provisions of the TIA, which are incorporated by reference in and made a part of
this Indenture. Any terms incorporated by reference in this Indenture that are
defined by the TIA, defined by any TIA reference to another statute or defined
by Commission rule under the TIA, have the meanings so assigned to them therein.
The following TIA terms have the following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company and any other
obligor on the Notes.
Section 105. CONFLICT WITH TIA. If any provision hereof limits, qualifies
or conflicts with a provision of the TIA that is required under the TIA to be a
part of and to govern this Indenture, the provision of the TIA shall control. If
any provision of this Indenture modifies or excludes any provision of the TIA
that may be so modified or excluded, the provision of the TIA shall be deemed
(i) to apply to this Indenture as so modified or (ii) to be excluded, as the
case may be.
Section 106. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application or
request by the Company or by any other obligor (including any Subsidiary
Guarantor) upon the Notes to the Trustee to take any action under any provision
of this Indenture, the Company, such Subsidiary Guarantor or such other obligor
upon the Notes, as the case may be, shall
39
<Page>
furnish to the Trustee an Officers' Certificate in form and substance reasonably
acceptable to the Trustee stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant, compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with; together
with, if applicable, such other certificates and opinions as may be required
under the TIA. Each such certificate or opinion shall be given in the form of
one or more Officers' Certificates, if to be given by one or more Officers, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the TIA and any other requirements set forth in this Indenture.
Notwithstanding the foregoing, in the case of any such request or application as
to which the furnishing of any Officers' Certificate or Opinion of Counsel is
specifically required by any provision of this Indenture relating to such
particular request or application, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
SECTION 405) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 107. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of one or more Officers may be based, insofar as
it
40
<Page>
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless any such Officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to the matters upon which his or her certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 108. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to SECTION 701) conclusive in favor of the Trustee, the
Company, any Subsidiary Guarantor and any other obligor upon the Notes, if made
in the manner provided in this SECTION 108.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by an officer of a corporation or a member of a
partnership or other entity, on behalf of such corporation or partnership or
other entity, such certificate or affidavit shall also constitute sufficient
proof of such Person's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
41
<Page>
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note shall bind the Holder of every
Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Trustee, the
Company, any Subsidiary Guarantor or any other obligor upon the Notes in
reliance thereon, whether or not notation of such action is made upon such Note.
(e) (i) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Notes, PROVIDED that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in subclause
(e)(ii) of this SECTION 108. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Notes on such record date (or their duly
designated proxies), and no other Holders, shall be entitled to take the
relevant action, whether or not such Persons remain Holders after such record
date; PROVIDED that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Notes in the manner set forth in
SECTION 110.
(ii) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Notes entitled to join in the giving or
making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in SECTION 602, (iii) any request to institute proceedings referred
to in SECTION 607(2) or (iv) any direction referred to in SECTION 612, in each
case with respect to Notes. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Notes on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
PROVIDED that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph
42
<Page>
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Notes on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Notes in the manner set forth in
SECTION 110.
(iii) With respect to any record date set pursuant to this SECTION 108,
the party hereto that sets such record date may designate any day as the
"EXPIRATION DATE" and from time to time may change the Expiration Date to any
earlier or later day; PROVIDED that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the Company or the
Trustee, whichever such party is not setting a record date pursuant to this
SECTION 108(e) in writing, and to each Holder of Notes in the manner set forth
in SECTION 110, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto that set such record date shall be deemed to have
initially designated the 120th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 120th day after the applicable record date.
(iv) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Note may do so with regard to
all or any part of the principal amount of such Note or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 109. NOTICES, ETC., TO THE TRUSTEE, THE COMPANY AND ANY SUBSIDIARY
GUARANTOR. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with
(1) the Trustee by any Holder, the Company, any Subsidiary
Guarantor or any other obligor upon the Notes shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee, or delivered in person, by overnight courier, or via
facsimile, with original to follow, to the Trustee at The Bank of New York,
101 Barclay Street, New York, New York 10286, Attention: Corporate Trust
Administration (Facsimile: (212) 896-7299) or at any other address
furnished in writing to the Company by the Trustee, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by
any Holder
43
<Page>
shall be sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, or delivered in person, by overnight courier
or via facsimile, with original to follow, to the Company or such
Subsidiary Guarantor at IESI Corporation, 6125 Airport Freeway, Suite 202,
Haltom City, TX, 76117, Attention of Chief Executive Officer (telephone:
(817) 314-5800; facsimile: (817) 314-5238) with a copy to IESI Corporation,
2 Commerce Street, 2nd Floor, Bayonne, NJ 07002, Attention of General
Counsel (Telephone: (201) 437-5200; facsimile: (201) 437-5300) or at any
other address furnished in writing to the Trustee by the Company.
Section 110. NOTICES TO HOLDERS; WAIVER. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such Holder's address
as it appears in the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail notice of any event as
required by any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 111. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 112. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Company and the Subsidiary Guarantors shall bind their
respective successors and assigns, whether so expressed or not. All agreements
of the Trustee in this Indenture shall bind its successors, whether so expressed
or not.
Section 113. SEPARABILITY CLAUSE. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
44
<Page>
Section 114. BENEFIT OF INDENTURE. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture,
except as provided in ARTICLE 14.
Section 115. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS INDENTURE, THE NOTES
AND THE SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE COMPANY, THE
SUBSIDIARY GUARANTORS, 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
INDENTURE OR THE NOTES.
EACH OF THE COMPANY, THE TRUSTEE, THE SUBSIDIARY GUARANTORS AND ANY OTHER
OBLIGOR IN RESPECT OF THE NOTES 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 INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 116. LEGAL HOLIDAYS. In any case where any Interest Payment Date,
any date fixed for redemption pursuant to ARTICLE 10, or Stated Maturity of any
Note shall not be a Business Day, then (notwithstanding any other provision of
this Indenture or of the Notes) payment of interest or principal and premium (if
any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or redemption date, or at the Stated Maturity and no interest shall accrue
for the intervening period.
Section 117. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
INCORPORATORS AND STOCKHOLDERS. No director, officer, employee, incorporator or
stockholder, as such, of the Company or any Subsidiary Guarantor shall have any
liability for any obligation of the Company or any Subsidiary Guarantor under
this Indenture, the Notes or any Subsidiary Guarantee, or for any claim based
on, in respect of, or by reason of, any such obligation or its creation. Each
Holder, by accepting a Note, waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.
Section 118. APPENDIX, EXHIBITS AND SCHEDULES. Appendix A and all exhibits
and schedules attached hereto are by this reference made a part hereof with the
same effect as if herein set forth in full.
45
<Page>
Section 119. COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 120. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Indenture
may not be used to interpret any other indenture, loan or debt agreement of the
Company, the Subsidiary Guarantors or their Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
ARTICLE 2
NOTE FORMS
Section 201. FORMS GENERALLY. Provisions relating to the Notes are set
forth in APPENDIX A, which Appendix is hereby incorporated in and expressly made
a part of this Indenture. The Notes and the Trustee's certificate of
authentication relating thereto shall be in substantially the forms set forth,
or referenced, in this ARTICLE 2 and EXHIBIT A annexed hereto, which Exhibit A
is hereby incorporated in and expressly made a part of this Indenture. The Notes
may have such appropriate insertions, omissions, substitutions, notations,
legends, endorsements, identifications and other variations as are required or
permitted by law, stock exchange rule or Depository rule or usage, agreements to
which the Company is subject, if any, or other customary usage, or as may
consistently herewith be determined by the Officers of the Company executing
such Notes, as evidenced by such execution. The terms of the Notes set forth in
EXHIBIT A are part of the terms of this Indenture. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
Any definitive Notes issued in certificated form shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes described in the within-mentioned Indenture.
,
as Trustee
By:
Authorized Signatory
46
<Page>
Dated:
If an appointment of an Authenticating Agent is made pursuant to SECTION
714, the Notes may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Notes described in the within-mentioned Indenture.
,
as Trustee
By: ,
As Authenticating Agent
By:
Authorized Officer
Dated:
ARTICLE 3
THE NOTES
Section 301. TITLE AND TERMS. The aggregate principal amount of Notes that
may be authenticated and delivered and Outstanding under this Indenture is not
limited, except as provided in SECTION 406 and except as may be limited by
applicable law. The Initial Notes will be issued in an aggregate principal
amount of $150,000,000. All of the Original Notes shall vote and consent
together on all matters as one class, and none of the Original Notes will have
the right to vote or consent as a class separate from one another on any matter.
Additional Notes (including any Exchange Notes issued in exchange therefor)
shall vote as a class with the other Notes and otherwise be treated as Notes for
purposes of this Indenture.
The Notes shall be known and designated as the "10 1/4% Senior Subordinated
Notes due 2012" of the Company. The final Stated Maturity of the Notes shall be
June 15, 2012. Interest on the Outstanding principal amount of Notes will accrue
at the rate of 10 1/4% per annum and will be payable semi-annually in arrears on
June 15 and December 15 in each year, commencing on December 15, 2002, to
holders of record on the immediately preceding June 1 and December 1,
respectively (each such June 1 and
47
<Page>
December 1, a "REGULAR RECORD DATE"). Interest on the Original Notes will accrue
from the most recent date to which interest has been paid or duly provided for
or, if no interest has been paid, from the Issue Date; and interest on any
Additional Notes (and Exchange Notes issued in exchange therefor) will accrue
from the most recent date to which interest has been paid or duly provided for
or, if no interest has been paid on such Additional Notes, from the date of
issuance of such Additional Notes; PROVIDED that if any Note is surrendered for
exchange on or after a record date for an Interest Payment Date that will occur
on or after the date of such exchange, interest on the Note received in exchange
thereof will accrue from the date of such Interest Payment Date.
If a Holder has given wire transfer instructions to the Company, the
Company will make all principal, premium and interest payments on those Notes in
accordance with those instructions. All other payments on the Notes will be made
at the office or agency of the Paying Agent and Registrar within the City and
State of New York (the "PLACE OF PAYMENT") unless the Company elects to make
interest payments by check mailed to the Holders at their addresses set forth in
the Note Register.
The Notes shall be redeemable as provided in ARTICLE 10. The Notes will not
be entitled to the benefit of a sinking fund.
At the election of the Company, all obligations of the Company and any and
all Subsidiary Guarantors with respect to the Outstanding Notes or certain
obligations and covenants and certain Events of Default thereunder may be
defeased as provided in ARTICLE 12.
The Notes are entitled to the benefits of the Guarantees by each Subsidiary
Guarantor as provided in ARTICLE 13.
The Notes shall be subordinated in right of payment to Senior Indebtedness
as provided in ARTICLE 14.
Section 302. DENOMINATIONS. The Notes shall be (i) initially issued in
registered, global form without coupons and (ii) issued only in denominations of
$1,000 and any integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION AND DELIVERY AND DATING. The Notes
shall be executed on behalf of the Company by its chairman of the Board of
Directors, its chief executive officer, its president, its chief financial
officer or one of its executive vice presidents or senior vice presidents, in
each case, attested by its secretary or one of its assistant secretaries. The
signature of such Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were at
any time the proper Officers of the Company shall bind the Company,
notwithstanding that
48
<Page>
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices on the
date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication; and the Trustee shall authenticate and deliver (i) Initial
Notes for original issue in the aggregate principal amount not to exceed
$150,000,000, (ii) Additional Notes from time to time for original issue in
aggregate principal amounts specified by the Company and (iii) Exchange Notes
from time to time for issue in exchange for a like principal amount of Initial
Notes or Initial Additional Notes, in each case specified in clauses (i) through
(iii) above, upon a written order of the Company in the form of an Officers'
Certificate of the Company (an "AUTHENTICATION ORDER"). Such Officers'
Certificate shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated, whether the Notes are to be Initial
Notes, Additional Notes or Exchange Notes and whether the Notes are to be issued
as one or more Global Notes or Certificated Notes and such other information as
the Company may include or the Trustee may reasonably request.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
Section 304. TEMPORARY NOTES. Until definitive Notes are ready for
delivery, the Company may prepare and execute and upon receipt of an
Authentication Order the Trustee shall authenticate and deliver temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Officers executing such temporary Notes consider
appropriate for temporary Notes, as evidenced by their execution of such
temporary Notes and as may be reasonably acceptable to the Trustee. If temporary
Notes are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company in a Place of Payment, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and, upon receipt of an
Authentication Order, the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes of the
49
<Page>
same series and tenor.
Section 305. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "NOTE REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Trustee is hereby appointed "REGISTRAR"
for the purpose of registering Notes and transfers of Notes as herein provided.
The Company may change the Registrar without prior notice to the Holders, and
the Company or any of its Domestic Subsidiaries may act as Registrar, in which
event the Note Register may be kept at an office of the Company or any such
Domestic Subsidiary.
Upon surrender for transfer of any Note at the office or agency of the
Company in a Place of Payment, in compliance with all applicable requirements of
this Indenture and applicable law, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, of any authorized denominations and of a
like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes, of any
authorized denominations and of a like tenor and aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes that the Holder making the
exchange is entitled to receive.
Any Holder of any Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Note may be effected
only through a book-entry system maintained by the Holder of such Global Note
(or its agent), and that ownership of a beneficial interest in such Global Note
shall be required to be reflected in a book entry.
All Notes issued upon any transfer or exchange of Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such transfer or
exchange.
Every Note presented or surrendered for transfer or exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed, by the Holder thereof or such Holder's attorney duly
authorized in writing.
No service charge shall be made for any transfer or exchange of Notes, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental
50
<Page>
charge that may be imposed in connection with any transfer or exchange of Notes
under this SECTION 305, other than exchanges not involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange any
Note during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption (or purchase) of Notes selected for
redemption (or purchase) under SECTION 1004 and ending at the close of business
on the day of such mailing, or (ii) to transfer or exchange any Note so selected
for redemption (or purchase) in whole or in part.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Trustee, or the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Note has been
acquired by a bona fide purchaser, the Company shall execute and, upon receipt
of an Authentication Order, the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Note, pay such Note.
Upon the issuance of any new Note under this SECTION 306, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this SECTION 306 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and ratably with
any and all other Notes duly issued hereunder.
The provisions of this SECTION 306 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 307. PAYMENT OF INTEREST RIGHTS PRESERVED. Interest on any Note
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest specified in SECTION 301.
51
<Page>
Any interest on any Note that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "DEFAULTED
INTEREST") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, as provided in clause (1) or
clause (2) (as the Company may elect) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements reasonably satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this clause (1). Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class
postage prepaid, to each Holder at such Holder's address as it appears in
the Note Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this SECTION 307, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, that were carried by such other
52
<Page>
Note.
Section 308. PERSONS DEEMED OWNERS. The Company, any Subsidiary Guarantor,
any other obligor upon the Notes, the Trustee and any agent of any of them may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payment of principal of (and premium, if any), and
(subject to SECTION 307) interest on, such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Company, any
Subsidiary Guarantor any other obligor upon the Notes, the Trustee nor any agent
of any of them shall be affected by notice to the contrary.
Section 309. CANCELLATION. All Notes surrendered for payment, redemption,
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder that the
Company may have acquired in any manner whatsoever, and all Notes so delivered
shall be promptly cancelled by the Trustee. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this SECTION 309,
except as expressly permitted by this Indenture. All cancelled Notes held by the
Trustee shall be disposed of in accordance with the Trustee's customary
procedures (subject to the record retention requirements of the Exchange Act),
and the Trustee shall deliver to the Company a certificate of a Responsible
Officer of the Trustee as to such cancellation, unless the Company directs the
Trustee to deliver cancelled Notes to the Company.
Section 310. COMPUTATION OF INTEREST. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP AND ISIN NUMBERS. The Company in issuing the Notes may
use "CUSIP" and "ISIN" numbers (if then generally in use), and if so, the
Trustee shall use CUSIP and ISIN numbers in notices of redemption or exchange as
a convenience to Holders; PROVIDED, HOWEVER, that any such notice may state that
no representation is made as to the correctness or accuracy of such numbers
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in CUSIP and ISIN numbers.
Section 312. PAYMENT OF ADDITIONAL INTEREST.
(a) Under certain circumstances the Company will be obligated to pay
certain additional amounts of interest to the Holders of certain Initial Notes,
as more particularly set forth in such Initial Notes.
(b) Under certain circumstances the Company may be obligated to pay
certain
53
<Page>
additional amounts of interest to the Holders of certain Initial Additional
Notes, as may be more particularly set forth in such Initial Additional Notes.
ARTICLE 4
COVENANTS
Section 401. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company will
duly and punctually pay the principal of (and premium, if any) and interest on
the Notes in accordance with the terms of the Notes and this Indenture. By 10:00
A.M., Eastern time, on each due date, the Company shall deposit with the Paying
Agent in immediately available funds the amount necessary to make payments of
principal, premium and interest due on the Notes.
Section 402. MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain in
the Borough of Manhattan, The City of New York, an office or agency (which may
be an office or agency of the Trustee or an Affiliate of the Trustee or
Registrar) where Notes may be presented or surrendered for payment, where Notes
may be surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee. The
Company hereby designates the Corporate Trust Office as the initial Place of
Payment and appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands so long as such Corporate Trust Office remains
the Place of Payment.
Section 403. MONEY FOR PAYMENTS TO BE HELD IN TRUST. If the Company shall
at any time act as its own Paying Agent, it will, on or before 10:00 A.M. of
each due date of the principal of (and premium, if any) or interest on, any of
the Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have more than one Paying Agent, it will, prior
to each due date of the principal of (and premium, if any) or interest on, any
Notes, deposit with the Paying Agent a sum in same day funds sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure
54
<Page>
so to act.
The Company will cause any Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this SECTION 403, that such
Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
Subsidiary Guarantor or other obligor upon the Notes) in the making of any
such payment of principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects with
the provisions of this Indenture and the TIA relating to the duties, rights
and liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar proceeding relative to the Company or any other obligor, including each
Subsidiary Guarantor, upon the Notes or the property of the Company or of such
other obligor or their creditors, the Trustee shall serve as the Paying Agent.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid in the appropriate proportion to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general
55
<Page>
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER,
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Company cause to be published once, in
the New York Times and The Wall Street Journal (national edition), notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will promptly be repaid to the Company.
Section 404. REPORTS.
(a) Whether or not required by the Commission, so long as any Notes are
Outstanding, the Company shall furnish to the Holders of Notes, within the time
periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K as if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report on
the annual financial statements by the Company's certified independent
accountants; and
(2) all current reports that would be required to be filed with
the Commission on Form 8-K as if the Company were required to file such
reports.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of
the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company.
(c) In addition, whether or not required by the Commission, the Company
shall file a copy of all of the information and reports referred to in clauses
(a)(1) and (a)(2) above with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing, and only commencing after the
effectiveness of any registration statement of the Company) and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company and the Subsidiary Guarantors shall,
56
<Page>
for so long as any Notes remain Outstanding, furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(d) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 405. COMPLIANCE CERTIFICATE.
(a) The Company and each Subsidiary Guarantor (to the extent that such
Subsidiary Guarantor is so required under the TIA) shall deliver to the Trustee,
within 90 days after the end of its fiscal year (or earlier if required by
applicable law, rule or regulation), an Officers' Certificate, one of the
signers of which shall be the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or her knowledge,
the Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) Promptly upon any Officer becoming aware of any Default or Event of
Default, but in any event within three days of such occurrence, the Company
shall deliver to the Trustee a statement in the form of an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 406. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK. The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, Guarantee
or otherwise become directly or
57
<Page>
indirectly liable, contingently or otherwise, with respect to (collectively,
"INCUR" or "ISSUE") any Indebtedness (including Acquired Debt), and the Company
will not issue any Disqualified Stock and will not permit any of its Restricted
Subsidiaries to issue any shares of Disqualified Stock or preferred stock;
PROVIDED, HOWEVER, that the Company and the Subsidiary Guarantors may incur
Indebtedness (including Acquired Debt), and the Company may issue Disqualified
Stock, if the Fixed Charge Coverage Ratio for the Company's most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued would have been at least 2.25 to 1.0,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The first paragraph of this covenant will not prohibit the incurrence of any of
the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(1) the incurrence by the Company and the Subsidiary Guarantors of
Indebtedness under Credit Facilities; PROVIDED that the aggregate principal
amount of all Indebtedness outstanding under all Credit Facilities incurred
under this clause (1) after giving effect to such incurrence (with letters
of credit being deemed to have a principal amount equal to the maximum
potential liability of the Company and its Restricted Subsidiaries
thereunder) does not exceed an amount equal to $240.0 million LESS (A) the
aggregate amount of all Net Proceeds of Asset Sales applied by the Company
or any Restricted Subsidiary to repay any Indebtedness under Credit
Facilities (and, in the case of any revolving credit Indebtedness under a
Credit Facility, to effect a corresponding commitment reduction thereunder)
pursuant to SECTION 410, LESS (B) the then outstanding principal amount of
Indebtedness arising under any Receivables Program that was incurred
pursuant to clause (13) of this paragraph;
(2) the incurrence by the Company and its Restricted Subsidiaries
of Existing Indebtedness;
(3) the incurrence by the Company and the Subsidiary Guarantors of
Indebtedness represented by the Notes and the Subsidiary Guarantees (other
than Additional Notes and the Subsidiary Guarantees in respect thereof);
(4) the incurrence by the Company or any Subsidiary Guarantor of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money obligations (including the deferred purchase price of
property or related royalty payment obligations and including notes payable
to sellers), in each
58
<Page>
case, incurred for the purpose of financing or refinancing all or any part
of the purchase price or cost of construction or improvement of property,
plant or equipment used in the business of the Company or such Restricted
Subsidiary, in an aggregate principal amount not to exceed $20.0 million at
any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace,
Indebtedness (other than intercompany Indebtedness) that was permitted by
the Indenture to be incurred under the first paragraph of this covenant or
clause (2), (3) or this clause (5) of this paragraph;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(a) if the Company or any Subsidiary Guarantor is the
obligor on such Indebtedness, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes, in the case of the Company, or the
Subsidiary Guarantee of such Subsidiary Guarantor, in the case of a
Subsidiary Guarantor; and
(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary thereof and
(ii) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary
thereof, shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause (6);
(7) the incurrence by the Company for bona fide hedging purposes
of Hedging Obligations that are incurred for the purpose of fixing or
hedging (a) interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding, (b) prices of paper, fiber, aluminum, tin, glass, rubber,
plastics or other recycled products or (c) fuel requirements of the Company
and its Restricted Subsidiaries;
(8) the Guarantee by the Company or any of the Subsidiary
Guarantors of Indebtedness of the Company or another Subsidiary Guarantor
that was permitted to be incurred by another provision of this covenant;
59
<Page>
(9) the incurrence by the Company or any Subsidiary Guarantor of
additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding not to exceed $15.0 million;
(10) the accrual of interest, accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends
on Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock; PROVIDED, that, in each such case the amount thereof is
included in Fixed Charges of the Company as accrued;
(11) obligations in the ordinary course of business in respect of
performance, bid and surety bonds and completion Guarantees provided by the
Company or any Restricted Subsidiary of the Company or with respect to
closure, final-closure and post-closure liabilities related to the
Company's landfills;
(12) Indebtedness incurred by a Restricted Subsidiary that is a
Foreign Subsidiary in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding not to exceed the Borrowing Base of
such Restricted Subsidiary;
(13) Indebtedness incurred by a Receivables Subsidiary pursuant to
a Receivables Program; PROVIDED, HOWEVER, that, after giving effect to any
such incurrence, the aggregate principal amount of all Indebtedness
incurred under this clause (13), plus any Indebtedness incurred pursuant to
clause (1) of this paragraph and outstanding on the date of such
incurrence, does not exceed $240.0 million LESS the aggregate amount of all
Net Proceeds of Asset Sales applied by the Company or any Restricted
Subsidiary to repay any Indebtedness under Credit Facilities (and, in the
case of any revolving credit Indebtedness under a Credit Facility, to
effect a corresponding commitment reduction thereunder) pursuant to SECTION
410.
For purposes of determining compliance with this SECTION 406, in the event
that an item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (13) above, or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company will be permitted to classify such item of Indebtedness on the date of
its incurrence in any manner that complies with this covenant and will only be
required to include the amount and type of such Indebtedness in one of the above
clauses. In addition, the Company will be entitled to divide and classify an
item of Indebtedness under two or more of the clauses set forth above.
60
<Page>
Section 407. LIMITATION ON SENIOR SUBORDINATED DEBT. The Company will not
incur, create, issue, assume, Guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to any Senior
Indebtedness of the Company and senior in any respect in right of payment to the
Notes. No Guarantor will incur, create, issue, assume, Guarantee or otherwise
become liable for any Indebtedness that is subordinate or junior in right of
payment to any Senior Indebtedness of such Subsidiary Guarantor and senior in
any respect in right of payment to such Subsidiary Guarantor's Subsidiary
Guarantee. Unsecured Indebtedness is not deemed to be subordinate or junior to
secured Indebtedness merely because it is unsecured, and Indebtedness that is
not Guaranteed by a particular Person is not deemed to be subordinate or junior
to Indebtedness merely because it is not so Guaranteed.
Section 408. LIMITATION ON RESTRICTED PAYMENTS. The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions (a) payable in
Equity Interests (other than Disqualified Stock) of the Company or (b) to
the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company or any Restricted Subsidiary
of the Company (other than any such Equity Interests owned by the Company
or any Restricted Subsidiary of the Company);
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes or the Subsidiary Guarantees, except a payment at
the Stated Maturity thereof; or
(4) make any Restricted Investment (all such payments and other
actions set forth in these clauses (1) through (4) being collectively
referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
61
<Page>
continuing or would occur as a consequence thereof; and
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
SECTION 406; and
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of the Indenture (excluding Restricted Payments
permitted by clauses (2) and (3) of the next succeeding paragraph), is less
than the sum, without duplication, of
(a) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the date of the Indenture
to the end of the Company's most recently ended fiscal quarter for
which internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, less 100% of such deficit), plus
(b) 100% of the aggregate net cash proceeds received by the
Company since the date of the Indenture as a contribution to its
equity capital (other than Disqualified Stock) or from the issue or
sale of Equity Interests of the Company (other than Disqualified
Stock) or from the issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable debt securities of
the Company that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or Disqualified Stock
or debt securities) sold to a Subsidiary of the Company), plus
(c) to the extent that any Restricted Investment that was
made after the date of the Indenture is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (x) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (y) the initial amount of such Restricted
Investment, plus
(d) the aggregate amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from the
redesignation of any Unrestricted Subsidiary as a Restricted
Subsidiary (valued as provided in the last paragraph of this
covenant), not to exceed in the case
62
<Page>
of any such Unrestricted Subsidiary the aggregate amount of
Investments (other than Permitted Investments) made by the Company
or any Restricted Subsidiary in such Unrestricted Subsidiary after
the date of the Indenture.
So long as (with respect to clauses (1), (4), (5), (6), (7) and (8)) no
Default or Event of Default has occurred and is continuing or would be caused
thereby, the preceding provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this covenant;
(2) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or any
Subsidiary Guarantor or of any Equity Interests of the Company or any
Restricted Subsidiary in exchange for, or out of the net cash proceeds of
the substantially concurrent sale (other than to a Subsidiary of the
Company) of, or capital contribution (other than from a Subsidiary of the
Company) to, Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (3)(b) of the preceding
paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of
Subordinated Indebtedness of the Company or any Subsidiary Guarantor with
the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its common Equity Interests on a pro rata basis;
(5) the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted
Subsidiary of the Company held by any employee, former employee, director,
former director or other members of management of the Company of any of its
Subsidiaries (or permitted transferees of such persons) pursuant to any
stock option or management agreement or plan pursuant to or in connection
with which such Equity Interests were granted; provided that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $1.0 million in any twelve-month period;
(6) (a) cash paid in lieu of fractional Equity Interests in an
aggregate amount not to exceed $50,000; and
63
<Page>
(b) the repurchase of Capital Stock deemed to occur upon the
exercise of options or warrants if such Capital Stock represents all or a
portion of the exercise price thereof or tax payment with respect thereto;
(7) the declaration and payment of dividends and distributions in
the form of additional shares of the same class or series of Disqualified
Stock of the Company to holders of any such class or series of Disqualified
Stock issued or incurred in accordance with SECTION 406; PROVIDED that the
dividends and distributions on such Disqualified Stock are included in the
determination of the Fixed Charges used in computing compliance with such
covenant; or
(8) other Restricted Payments not to exceed $5 million in the
aggregate since the date of the Indenture.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) (net of
liabilities) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to
be valued by this covenant shall be determined by the Board of Directors of the
Company whose determination shall be conclusive and shall be evidenced by a
Board resolution with respect thereto, a copy of which shall be delivered to the
Trustee. The Board of Directors' determination must be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing if the fair market value exceeds $10.0 million. Not later than
the date of making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this SECTION 408 were computed, together with a copy of any fairness opinion or
appraisal to the extent required by the Indenture. If a Restricted Payment meets
the criteria of more than one of the types of Restricted Payments described in
the preceding two paragraphs, the Company may order and classify such Restricted
Payment at the time such Restricted Payment is made. In addition, the Company
will be entitled to divide and classify a Restricted Payment under two or more
of the classifications set forth above.
Section 409. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Company or any of the Company's Restricted Subsidiaries, or
with respect to any
64
<Page>
other interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Company or any of the Company's Restricted
Subsidiaries;
(2) make loans or advances to the Company or any of the Company's
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any
of the Company's Restricted Subsidiaries.
However, the preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(1) any agreement or instrument as in effect at or entered into on
the date of the Indenture (including the Credit Agreement, the Indenture,
the Subsidiary Guarantees and the Notes);
(2) any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of an
agreement or instrument referred to in clause (1), this clause (2) or
clause (4) of this paragraph, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacement or
refinancings are not materially more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those
contained in such agreement or instrument, as in effect on the date of the
Indenture;
(3) applicable law, rule, regulation, or order of governmental
authority;
(4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of the
Indenture to be incurred;
(5) customary non-assignment provisions (and sublease
restrictions) in leases entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions on the property so
acquired of the nature described in clause (3) of the preceding paragraph;
65
<Page>
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by such Restricted
Subsidiary pending its sale or other disposition;
(8) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in the agreements governing the Indebtedness
being refinanced;
(9) Liens securing Indebtedness otherwise permitted to be incurred
pursuant to the provisions of Section 412 that limit the right of the
Company or any of its Restricted Subsidiaries to dispose of the assets
subject to such Lien;
(10) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar agreements
entered into in the ordinary course of business;
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
and
(12) with respect to a Receivables Subsidiary, encumbrances or
restrictions imposed pursuant to a Receivables Program of such Receivables
Subsidiary; provided that such encumbrances and restrictions are
customarily required by the institutional sponsor or arranger at the time
of entering in such Receivables Program in similar types of documents
relating to the purchase of similar receivables in connection with the
financing thereof.
Section 410. ASSET SALES. (a) The Company will not, and will not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the
fair market value of the assets or Equity Interests issued or sold or
otherwise disposed of;
(2) such fair market value is determined by the Company's Board of
Directors and evidenced by a resolution of the Board of Directors set forth
in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in the Asset Sale
by the Company or such Restricted Subsidiary is in the form of cash or cash
equivalents. For purposes of this provision, each of the following shall be
deemed to be cash:
(a) any liabilities (as shown on the Company's or such
66
<Page>
Restricted Subsidiary's most recent balance sheet), of the Company
or any Restricted Subsidiary (other than contingent liabilities)
that are assumed by another party and from which the Company and all
of its Restricted Subsidiaries are released from further liability;
and
(b) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee
that are promptly (subject to ordinary settlement periods) converted
by the Company or such Restricted Subsidiary into cash (to the
extent of the cash received in that conversion).
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds at its option:
(1) to repay Senior Indebtedness and, if the Senior Indebtedness
repaid is Revolving Credit Indebtedness, correspondingly reduce commitments
with respect thereto;
(2) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business, or to acquire
Equity Interests constituting a minority interest in a Person that at such
time is a Restricted Subsidiary;
(3) to make a capital expenditure; or
(4) to acquire other property, plant, equipment or other
non-current assets that are used or useful in a Permitted Business.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph will constitute "EXCESS PROCEEDS." When the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
make an offer to purchase (an "ASSET SALE OFFER") to all Holders of Notes and
all holders of other Pari Passu Indebtedness containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets to purchase the maximum principal amount of
Notes and such Pari Passu Indebtedness that may be purchased out of the Excess
Proceeds. In an Asset Sale Offer, the Company shall offer to repurchase such
Notes and such Pari Passu Indebtedness in cash at a price equal to 100% of the
principal amount plus accrued and unpaid interest thereon, if any, to the date
of repurchase. Within 30 days following the date on which the Company becomes
obligated
67
<Page>
to make an Asset Sale Offer pursuant to this SECTION 410, the Company shall mail
a notice to each Holder describing the transaction or transactions that
constitute the Asset Sale and stating (1) that the Asset Sale Offer is being
made pursuant to this SECTION 410 and (2) the purchase price and purchase date,
which shall be no earlier than 30 days and no later than 60 days from the date
such notice is mailed (the "ASSET SALE PAYMENT DATE"), and containing the other
provisions required by SECTION 1005. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with each repurchase of Notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this SECTION 410,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this SECTION 410 by
virtue of such conflict.
(b) By 12:00 p.m. Eastern Time on the Asset Sale Payment Date, the
Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Asset Sale Offer; PROVIDED, however, that if the
aggregate principal amount of such Notes and such Pari Passu Indebtedness
tendered into such Asset Sale Offer exceeds the amounts of Excess Proceeds,
the Trustee shall select the Notes and such other Pari Passu Indebtedness
to be purchased on a pro rata basis;
(2) deposit with the Paying Agent an amount equal to the purchase
price in respect of all Notes and Pari Passu Indebtedness or portions
thereof to be so purchased; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Company.
The Paying Agent shall promptly mail to each Holder of Notes accepted for
such purchase the Asset Sale Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof.
68
<Page>
Section 411. LIMITATION ON AFFILIATE TRANSACTIONS. The Company will not,
and will not permit any of its Restricted Subsidiaries to, make any payment to,
or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or Guarantee
with, or for the benefit of, any Affiliate (each, an "AFFILIATE TRANSACTION"),
unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with this covenant and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Company's Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, an opinion as to the fairness to the
Holders of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of
national standing.
The following items shall not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of the prior paragraph:
(1) any employment agreement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Restricted
Subsidiary;
(2) transactions between or among the Company and its Restricted
Subsidiaries or between or among Restricted Subsidiaries;
(3) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Company;
(4) Restricted Payments that are permitted by SECTION 408 of this
Indenture;
69
<Page>
(5) the issuance and sale of Equity Interests (other than
Disqualified Stock); and
(6) any Receivables Program of the Company or a Restricted
Subsidiary.
Section 412. LIMITATION ON LIENS. The Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind (except Permitted Liens) securing
Pari Passu Indebtedness or Subordinated Indebtedness on any asset now owned or
hereafter acquired (the "INITIAL LIEN"), unless contemporaneously therewith
effective provision is made to secure the Indebtedness due under this Indenture
and the Notes or, in respect of Liens on any Restricted Subsidiary's property or
assets, any Subsidiary Guarantee by such Restricted Subsidiary, equally and
ratably with such obligation for so long as such obligation is so secured by
such Initial Lien. Any such Lien thereby created in favor of the Notes or any
such Guarantee of the Notes will be automatically and unconditionally released
and discharged upon (i) the release and discharge of the Initial Lien to which
it relates, or (ii) any sale, exchange or transfer to any Person not an
Affiliate of the Company of the property or assets secured by such Initial Lien,
or of all of the Capital Stock held by the Company or any Restricted Subsidiary
in, or all or substantially all the assets of, any Restricted Subsidiary
creating such Lien.
Section 413. ADDITIONAL SUBSIDIARY GUARANTEES. If the Company or any of its
Restricted Subsidiaries acquires or creates another Domestic Subsidiary after
the date of this Indenture (other than an Unrestricted Subsidiary so designated
in compliance with this Indenture), then that newly acquired or created Domestic
Subsidiary must become a Guarantor and execute a supplemental indenture
satisfactory to the Trustee and deliver an Opinion of Counsel to the Trustee
within ten Business Days of the date on which it was acquired or created. The
foregoing requirement shall not apply to any Receivables Entity.
Section 414. PURCHASE OF NOTES UPON A CHANGE IN CONTROL. (a) If a Change of
Control occurs, each Holder of Notes shall have the right to require the Company
to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder's Notes pursuant to a Change of Control Offer. In a "CHANGE OF
CONTROL OFFER," the Company shall offer a Change of Control Payment in cash
equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest thereon, if any, to the date of repurchase. Within
30 days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and stating (1) that the Change of Control Offer is being made pursuant
to this SECTION 414 and that all Notes tendered will be accepted for payment and
(2) the purchase price and the purchase date, which shall be no earlier than 30
days and no later than 60 days from the date such notice is mailed (the "CHANGE
OF CONTROL PAYMENT DATE"), and containing the other provisions required by
SECTION 1005. The Company shall comply
70
<Page>
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this SECTION 414,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations hereunder by virtue of its
compliance with such securities laws or regulations.
(b) By 12:00 p.m. Eastern Time on the Change of Control Payment Date,
the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so tendered;
and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Company.
The Paying Agent shall promptly mail to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; PROVIDED that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof.
Prior to complying with any of the provisions of this SECTION 414, but in
any event within 90 days following a Change of Control, the Company shall either
repay all outstanding Senior Indebtedness or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Indebtedness to permit
the repurchase of Notes required by this SECTION 414. The Company shall publicly
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this SECTION 414, the
Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
SECTION 414 and SECTION 1005 hereof and all other provisions of this Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
71
<Page>
Section 415. LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN
WHOLLY OWNED RESTRICTED SUBSIDIARIES. The Company will not, and will not permit
any of its Restricted Subsidiaries to, transfer, convey, sell, lease or
otherwise dispose of any Equity Interests in any Wholly Owned Restricted
Subsidiary of the Company to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company), unless:
(1) such transfer, conveyance, sale, lease or other disposition is
of all the Equity Interests in such Wholly Owned Restricted Subsidiary; and
(2) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with SECTION 410.
In addition, the Company will not permit any Wholly Owned Restricted
Subsidiary of the Company to issue any of its Equity Interests (other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares) to any Person other than to the Company or a Wholly Owned Restricted
Subsidiary of the Company.
Section 416. LIMITATION ON LINES OF BUSINESS. The Company will not, and
will not permit any Restricted Subsidiary to, engage in any business other than
Permitted Businesses.
Section 417. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS. The Company
will not, and will not permit any of its Restricted Subsidiaries to, enter into
any sale and leaseback transaction; provided that the Company or any Restricted
Subsidiary of the Company may enter into a sale and leaseback transaction if:
(1) the Company or that Restricted Subsidiary, as applicable,
could have incurred Indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction under the Fixed Charge
Coverage Ratio test in the first paragraph of SECTION 406;
(2) the gross cash proceeds of that sale and leaseback transaction
are at least equal to the fair market value, as determined in good faith by
the Company's Board of Directors and set forth in an Officers' Certificate
delivered to the Trustee, of the property that is the subject of such sale
and leaseback transaction; and
(3) the transfer of assets in that sale and leaseback transaction
is permitted by, and the Company applies the proceeds of such transaction
in compliance with SECTION 410.
Section 418. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS. The
Company will not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company or a Subsidiary
72
<Page>
Guarantor unless such Restricted Subsidiary simultaneously executes and delivers
a supplemental indenture providing for the Guarantee of the payment of the Notes
by such Restricted Subsidiary, which Guarantee shall be senior to or pari passu
with such Restricted Subsidiary's Guarantee of or pledge to secure such other
Indebtedness (to the same extent as the Notes are senior to or pari passu with
such other Indebtedness), unless such other Indebtedness is Senior Indebtedness,
in which case the Guarantee of the Notes may be subordinated to the Guarantee of
such Senior Indebtedness to the same extent as the Notes are subordinated to
such Senior Indebtedness.
Notwithstanding the preceding paragraph, any Subsidiary Guarantee will
provide by its terms that it will be automatically and unconditionally released
and discharged under the circumstances described in SECTION 1303.
Section 419. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES. The
Board of Directors of the Company may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if that designation would not cause a Default or
Event of Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, all outstanding Investments owned by the Company and its Restricted
Subsidiaries in the Subsidiary so designated will be deemed to be an Investment
made as of the time of such designation and will reduce the amount available for
Restricted Payments under the first paragraph of SECTION 408 or Permitted
Investments, as applicable. All such outstanding Investments will be valued at
their fair market value at the time of such designation as determined by the
Board of Directors in good faith. That designation will only be permitted if
such Restricted Payment would be permitted at that time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The
Board of Directors may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if the redesignation would not cause a Default or Event of
Default.
Section 420. CORPORATE EXISTENCE. Subject to the other provisions of this
ARTICLE 4, ARTICLE 5 and ARTICLE 13, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted Subsidiary and the corporate rights
(charter and statutory), licenses and franchises of the Company and each
Restricted Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required
to preserve any such existence (except that of the Company), right, license or
franchise if the Board of Directors of the Company shall determine in good faith
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and each of its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not, and will not be, disadvantageous in any
material respect to the Holders, and provided, further, the Company may merge in
accordance with SECTION 501.
Section 421. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes,
73
<Page>
assessments and governmental charges levied or imposed upon the Company or any
of its Subsidiaries or upon the income, profits or property of the Company or
any of its Subsidiaries and (ii) all lawful claims for labor, materials and
supplies, that, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted and for which appropriate reserves, if necessary (in the
good faith judgment of management of the Company), are being maintained in
accordance with GAAP.
Section 422. FURTHER INSTRUMENTS AND ACTS. Upon the request of the Trustee,
the Company shall execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE 5
SUCCESSOR COMPANY
Section 501. WHEN THE COMPANY MAY MERGE, ETC. The Company may not, directly
or indirectly: (i) consolidate or merge with or into another Person (whether or
not the Company is the surviving corporation); or (ii) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or
assets of the Company, in one or more related transactions, to another Person;
unless:
(1) either: (a) the Company is the surviving corporation; or (b)
the Person (the "SUCCESSOR COMPANY") formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition shall have been made
is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall have been made
assumes all of the obligations of the Company under the Notes, this
Indenture and the applicable Registration Rights Agreement pursuant to
agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of
Default shall
74
<Page>
have occurred and be continuing;
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company) will, on the date of
such transaction after giving pro forma effect thereto and any related
financing
75
<Page>
transactions as if the same had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
the first paragraph of SECTION 406;
(5) each Subsidiary Guarantor shall have delivered a supplemental
indenture in form satisfactory to the Trustee, confirming that its
Subsidiary Guarantee shall apply to the Successor Company's obligations in
respect of this Indenture and the Notes and its obligations under the
applicable Registration Rights Agreement shall continue to be in effect;
and
(6) the Company will have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, conveyance, lease, transfer or
other transaction and each such supplemental indenture complies with this
Indenture.
In addition, neither the Company nor any Restricted Subsidiary may,
directly or indirectly, lease all or substantially all of its properties or
assets, in one or more related transactions, to any other Person except that a
Restricted Subsidiary may lease all or substantially all of its properties or
assets in compliance with SECTION 410. This SECTION 501 shall not apply to a
sale, assignment, transfer, conveyance or other disposition of assets between or
among the Company and any of its Wholly Owned Restricted Subsidiaries.
Section 502. SUCCESSOR COMPANY SUBSTITUTED. Upon any transaction involving
the Company in accordance with SECTION 501, in which the Company is not the
Successor Company, the Successor Company will succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
or the Notes with the same effect as if such successor had been named as the
Company herein and therein.
ARTICLE 6
EVENTS OF DEFAULT; REMEDIES
Section 601. EVENTS OF DEFAULT. Each of the following is an Event of
Default, regardless of whether it is voluntary or involuntary or effected by
operation of law pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body:
(1) the Company defaults in any payment of interest or additional
interest (as
76
<Page>
required by any Registration Rights Agreement) on any Note when due or
payable, and such default continues for 30 days, whether or not such
payment is prohibited by ARTICLE 14;
(2) the Company defaults in the payment of principal of or
premium, if any, on any Note when the same becomes due and payable at its
Stated Maturity, upon optional redemption, upon required repurchase, upon
declaration of acceleration or otherwise, whether or not such payment is
prohibited by ARTICLE 14;
(3) the Company or any of its Subsidiaries fails to comply with
SECTION 410, 414 or 501 of this Indenture;
(4) the Company or any Restricted Subsidiary fails to comply with
any of its other covenants or agreements in this Indenture or under the
Notes (in each case, other than a failure or breach that constitutes a
Default or an Event of Default governed by clause (1), (2) or (3) above)
and such failure or breach continues for 60 days after the Notice of
Default specified below;
(5) there is a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Restricted Subsidiaries), other than Indebtedness
owed to the Company or a Restricted Subsidiary, whether such Indebtedness
or Guarantee now exists, or is created after the date of this Indenture,
which default:
(a) is caused by a failure to pay principal of, or interest
or premium, if any, on such Indebtedness before the expiration of
the grace period provided in such Indebtedness on the date of such
default (a "PAYMENT DEFAULT"); or
(b) results in the acceleration of such Indebtedness prior
to its maturity;
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more;
(6) failure by the Company or any of its Restricted Subsidiaries
to pay final judgments aggregating in excess of $10.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
77
<Page>
(7) except as permitted by this Indenture, any Subsidiary
Guarantee of any Subsidiary Guarantor shall cease for any reason to be in
full force and effect or any Subsidiary Guarantor, or any Person acting on
behalf of any Subsidiary Guarantor, shall deny or disaffirm its obligations
under this Indenture or its Subsidiary Guarantee;
(8) the Company or any of its Restricted Subsidiaries, pursuant to
or within the meaning of any Bankruptcy Law (as defined below):
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian (as defined
below) of it or for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors; or takes any comparable action under any foreign laws
relating to insolvency; or
(E) admits in writing its inability to pay its debts as they
become due; or
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Restricted
Subsidiary or for any substantial part of their property; or
(C) orders the winding up or liquidation of the Company or
any Restricted Subsidiary;
or any similar relief is granted under any foreign laws and the order,
decree or relief remains unstayed and in effect for 60 days.
The term "BANKRUPTCY LAW" means Title 11, UNITED STATES CODE, or any
similar Federal, state or foreign law for the relief of debtors. The term
"CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
78
<Page>
Notwithstanding the foregoing, a Default under clause (4) of this SECTION
601 will not constitute an Event of Default until the Trustee or the Holders of
25% in principal amount of the Outstanding Notes notify the Company (and the
Trustee in the case of a notice by Holders) of the Default and the Company does
not cure such Default within the time specified in such clause (4) after receipt
of such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "NOTICE OF DEFAULT."
The Company shall promptly (and in any event within three days of the
occurrence thereof) deliver to the Trustee, written notice in the form of an
Officers' Certificate of any Default or Event of Default under clause (3), (4),
(5), (6), (7), (8) or (9) of this SECTION 601, which notice shall contain the
status thereof and a description of the action the Company is taking or proposes
to take with respect thereof.
Section 602. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default (other than an Event of Default specified in clause (8) or (9)
of SECTION 601) occurs and is continuing, either the Trustee by notice to the
Company, or the Holders of 25% in aggregate principal amount of the Outstanding
Notes by notice to the Company and the Trustee, in either case specifying in
such notice the respective Event of Default and that such notice is a "notice of
acceleration," may, and the Trustee at the request of the Holders of 25% in
aggregate principal amount of the Outstanding Notes shall, declare the principal
of, premium, if any, and accrued but unpaid interest, if any, on all the Notes
to be due and payable. Upon such a declaration, such principal and interest will
be due and payable immediately. If an Event of Default specified in clause (8)
or (9) of SECTION 601 with respect to the Company, any Restricted Subsidiary
that is a Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary, occurs and is
continuing, the principal of, premium, if any, and any accrued interest on all
Notes will become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this ARTICLE 6, the Holders of a majority
in principal amount of the Outstanding Notes, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all Outstanding
Notes;
(B) the principal of (and premium, if any, on) any
Outstanding Notes which have become due otherwise than by such
declaration of acceleration
79
<Page>
and interest thereon at the rate borne by the Notes;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate borne by
the Notes; and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of (or premium, if any, on) or interest on Notes which have
become due solely by such acceleration, have been cured or waived as
provided in SECTION 613.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 603. OTHER REMEDIES; COLLECTION SUIT BY TRUSTEE. If an Event of
Default occurs and is continuing, the Trustee may, but is not obligated under
this SECTION 603 to, pursue any available remedy to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture. The Company and each Subsidiary
Guarantor covenant that if an Event of Default specified in SECTION 601(1) or
601(2) occurs and is continuing, the Company and such Subsidiary Guarantor will,
upon demand of the Trustee, pay to the Trustee, for the benefit of Holders of
such Notes, the whole amount then due and payable on such Notes for principal
(and premium, if any) and interest, with interest upon overdue principal (and
premium, if any) and, to the extent lawful, interest upon overdue installments
of interest, and the amounts provided for in SECTION 707.
If the Company or any Subsidiary Guarantor, as the case may be, fails to
pay such amounts forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company or any
Subsidiary Guarantor or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any Subsidiary Guarantor or any other obligor upon
the Notes, wherever situated.
Section 604. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders
80
<Page>
allowed in any judicial proceedings relative to the Company or any other obligor
upon the Notes, their creditors or their property and, unless prohibited by law
or applicable regulations, is authorized to vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under SECTION 707. The
Trustee may take any other action with respect to such claims, including
participating as a member of any official committee of creditors appointed in
the matters as it deems necessary or advisable.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 605. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES. All
rights of action and claims under this Indenture or the Notes may be prosecuted
and enforced by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
Section 606. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this ARTICLE 6 or otherwise on behalf of the Holders or the
Trustee pursuant to this ARTICLE 6 shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
1 : to the payment of all amounts due the Trustee under SECTION 707;
2 : to holders of Senior Indebtedness to the extent required by ARTICLE 14
and SECTION 1305;
3 : to the payment of the amounts then due and unpaid upon the Notes for
principal (and premium, if any) and interest, in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any
81
<Page>
kind, according to the amounts due and payable on such Notes for principal
(and premium, if any) and interest, respectively; and
4 : to the Company.
Section 607. LIMITATION ON SUITS. Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Holder may
pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice
that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the Outstanding
Notes have requested the Trustee in writing to pursue the remedy;
(3) such Holder or Holders have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee has not complied with such request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the
Outstanding Notes have not given the Trustee a direction that, in the
opinion of the Trustee, is inconsistent with the request during such 60-day
period.
A Holder may not use this Indenture to affect, disturb or prejudice the
rights of another Holder, to obtain a preference or priority over another Holder
or to enforce any right under this Indenture except in the manner herein
provided and for the equal and ratable benefit of all Holders.
Section 608. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST. Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the absolute and unconditional right to receive payment
of the principal of (and premium, if any) and (subject to SECTION 307) all
interest on such Note on the respective Stated Maturity or Interest Payment
Dates expressed in such Note (or, in the case of redemption or repurchase, on
the redemption date or repurchase date, as the case may be) and to institute
suit for the enforcement of any such payment on or after such respective Stated
Maturity or Interest Payment Dates (or, in the case of redemption or repurchase,
on or after such respective redemption date of repurchase date, as the case may
be), and such rights shall not be impaired without the consent of such Holder.
Section 609. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture or any Note and such
82
<Page>
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, any Subsidiary Guarantor, any other obligor upon the Notes,
the Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 610. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in the last paragraph of SECTION 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 611. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this ARTICLE 6 or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
Section 612. CONTROL BY HOLDERS. The Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the
Trustee, PROVIDED, that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture or, subject to SECTION 701, that the Trustee determines is
unduly prejudicial to the rights of other Holders or would involve the Trustee
in personal liability; PROVIDED, HOWEVER, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action under this Indenture, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
83
<Page>
all losses and expenses caused by taking or not taking such action. This Section
612 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and the
Notes, as permitted by the TIA.
Section 613. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes may on behalf of
the Holders of all the Notes waive any past or existing Default and its
consequences, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note (which may only be waived with the consent of each
Holder of Notes affected), or
(2) in respect of a covenant or other provision hereof that
pursuant to the second paragraph of SECTION 902 cannot be modified or
amended without the consent of each Holder affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. In case of
any such waiver, the Company, any Subsidiary Guarantor, any other obligor upon
the Notes, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Notes, respectively. This paragraph
of this SECTION 613 shall be in lieu of Section 316(a)(1)(B) of the TIA and such
Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture
and the Notes, as permitted by the TIA.
Section 614. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder by such Holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or the Notes, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant. This SECTION 614 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after the respective Stated Maturity or Interest Payment Dates
expressed in such Note (or, in the case of redemption, on or after the
Redemption Date).
Section 615. WAIVER OF STAY, EXTENSION OR USURY LAWS. Each of the Company
and each
84
<Page>
Subsidiary Guarantor covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury or
other similar law wherever enacted, now or at any time hereafter in force, that
would prohibit or forgive the Company or any Subsidiary Guarantor from paying
all or any portion of the principal of (or premium, if any) or interest on the
Notes contemplated herein or in the Notes or that may affect the covenants or
the performance of this Indenture; and each of the Company and each Subsidiary
Guarantor (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
THE TRUSTEE
Section 701. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but need not verify the
contents thereof.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent individual would exercise or use under the circumstances in the conduct
of such individual's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that: (i) this paragraph does not
limit the effect of paragraph (a) of this SECTION 701; (ii) the Trustee shall
not be liable for any error of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in
85
<Page>
ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to SECTION 612.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
SECTION 701 and SECTION 703 hereof and to the provisions of the TIA.
Section 702. NOTICE OF DEFAULTS. Within 90 days after the occurrence of any
Default, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Note Register, notice of such Default hereunder known to
the Trustee unless such Default shall have been cured or waived; PROVIDED,
HOWEVER, that, except in the case of a Default in the payment of the principal
of, premium, if any, or interest on any Note, the Trustee shall be protected in
withholding such notice if and for so long as the Board of Directors, the
executive committee or a trust committee of Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the interests
of the Holders.
Section 703. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
SECTION 701:
(1) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note, other evidence of indebtedness or other paper
or document believed in good faith by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order thereof,
and any resolution of any Person's Board of Directors shall be sufficiently
evidenced if certified by an Officer of such Person as having been duly
adopted and being in full force and effect on the date of such certificate;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an
86
<Page>
Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note, other evidence of indebtedness or other paper or document but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) any permissive right or authority granted to the Trustee shall
not be construed as a mandatory duty;
(9) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without negligence or
misconduct, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(10) the Trustee shall not be deemed to have notice of any Default
or Event of Default (except for Defaults pursuant to SECTION 601(1) or
601(2)) unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture;
87
<Page>
(11) the rights, privileges, protection, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder; and
(12) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
Section 704. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, any Subsidiary
Guarantor and any other obligor upon the Notes, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company, any Subsidiary
Guarantor and any other obligor upon the Notes in connection with the
registration of any Notes and any Subsidiary Guarantees issued hereunder are and
will be true and accurate subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Notes or the proceeds thereof.
Section 705. MAY HOLD NOTES. The Trustee, any Authenticating Agent, any
Paying Agent, any Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to
SECTION 708 and SECTION 713, may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Registrar or such other agent.
Section 706. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law or required herein. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed in writing with
the Company.
Section 707. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by the Trustee hereunder (which compensation shall not be
limited by any
88
<Page>
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses incurred by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
for, and to hold it harmless against, any and all loss, liability, damage,
claim or expense (including taxes (other than taxes based on, measured by
or determined by the income of the Trustee)) incurred without negligence,
willful misconduct or bad faith on the Trustee's part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, a Holder or any other Person) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The Trustee shall have a lien prior to the Notes as to all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee
pursuant to this SECTION 707, except with respect to funds held in trust for the
benefit of the Holders of particular Notes.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in SECTION 601(8) or SECTION 601(9), the expenses and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 708. CONFLICTING INTERESTS. If the Trustee has or shall acquire a
conflicting interest within the meaning of the TIA, the Trustee shall either
eliminate such interest within 90 days, apply to the Commission for permission
to continue as Trustee or resign, to the extent and in the manner provided by,
and subject to the provisions of, the TIA and this Indenture. To the extent
permitted by the TIA, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Original Notes and Additional Notes, or a trustee under any other indenture
between the Company and the Trustee.
Section 709. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be one and only
89
<Page>
one Trustee hereunder. The Trustee shall be a Person that is eligible pursuant
to the TIA to act as such and has a combined capital and surplus of at least
$50,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this SECTION 709 and to the extent permitted
by the TIA, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this SECTION 709, it shall resign immediately
in the manner and with the effect hereinafter specified in this ARTICLE 7.
Section 710. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of SECTION 711.
The Trustee may resign at any time by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
SECTION 711 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
The Trustee may be removed at any time by Act of the Holders of a majority
in principal amount of the Outstanding Notes, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
SECTION 711 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
If at any time:
(1) the Trustee shall fail to comply with SECTION 708 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under SECTION 709 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation
then, in any such case, (A) the Company by a board resolution may remove the
Trustee,
90
<Page>
or (B) subject to SECTION 614, any Holder who has been a bona fide Holder of a
Note for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, the Company by
a Board of Directors' resolution shall promptly appoint a successor Trustee and
shall comply with the applicable requirements of SECTION 711. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Notes delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of SECTION 711, become the successor Trustee and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by SECTION 711, then, subject to SECTION 614,
any Holder who has been a bona fide Holder of a Note for at least six months
may, on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
The Company shall give notice of each resignation and each removal of the
Trustee and each appointment of a successor Trustee to all Holders in the manner
provided in SECTION 110. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Section 711. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
Notwithstanding the replacement of the Trustee pursuant to this SECTION 711, the
Company's obligations under SECTION 707 shall continue for the benefit of the
retiring Trustee with regard to expenses and liabilities incurred by it and
compensation earned by it prior to such replacement or otherwise under the
Indenture.
91
<Page>
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to above.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this ARTICLE 7.
Section 712. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this ARTICLE 7,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
Section 713. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY. If and
when the Trustee shall be or become a creditor of the Company (or any Subsidiary
Guarantor or other obligor upon the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of claims against the Company (or
such Subsidiary Guarantor or such other obligor).
Section 714. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may appoint
an Authenticating Agent acceptable to the Company to authenticate the Notes. Any
such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer, a copy of which instrument shall be promptly furnished to
the Company. Unless limited by the terms of such appointment, an Authenticating
Agent may authenticate Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication (or execution of a certificate of
authentication) by the Trustee includes authentication (or execution of a
certificate of authentication) by such Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this SECTION 714, the combined
capital and surplus of such Authenticating
92
<Page>
Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this SECTION 714, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in SECTION 110 to all Holders of the Notes.
An Authenticating Agent has the same rights as any Registrar, Paying Agent or
agent for service of notices and demands.
ARTICLE 8
HOLDERS' LISTS AND REPORTS BY
THE TRUSTEE AND THE COMPANY
Section 801. THE COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished pursuant to this SECTION 801.
Section 802. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. The
Trustee shall
93
<Page>
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list, if any, furnished to the
Trustee as provided in SECTION 801 and the names and addresses of Holders
received by the Trustee in its capacity as Registrar; PROVIDED, HOWEVER, that if
and so long as the Trustee shall be the Registrar, the Note Register shall
satisfy the requirements relating to such list. None of the Company, any
Subsidiary Guarantor, any other obligor upon the Notes or the Trustee or any
other Person shall be under any responsibility with regard to the accuracy of
such list. The Trustee may destroy any list furnished to it as provided in
SECTION 801 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the TIA.
Every Holder of Notes, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the TIA.
Section 803. REPORTS BY TRUSTEE. The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the TIA at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the TIA, the Trustee shall, within
sixty days after each May 15 following the date of the initial issuance of any
Notes under this Indenture, deliver to each Holder a brief report, dated as of
such May 15, which complies with the provisions of such Section 313(a). A copy
of each such report shall, at the time of such transmission to Holders, be filed
by the Trustee with each stock exchange upon which any Notes are listed, with
the Commission and with the Company. The Company will notify the Trustee within
five Business Days when any Notes are listed on any stock exchange and of any
delisting thereof.
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
Section 901. WITHOUT CONSENT OF HOLDERS. Without the consent of any
Holders, the Company, any Subsidiary Guarantor (as applicable), when authorized
by their respective board resolutions, and the Trustee may amend or supplement
this Indenture, for any of the following purposes:
(1) to cure any ambiguity, omission, defect or inconsistency,
(2) to evidence the succession of another Person to the Company,
any Subsidiary Guarantor or any other obligor upon the Notes, and to
provide for the
94
<Page>
assumption by such a successor of the obligations of the Company or any
Subsidiary Guarantor or any other obligor upon the Notes under this
Indenture,
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes, PROVIDED, HOWEVER, that the uncertificated Notes are
issued in registered form for purposes of SECTION 163(f) of the Code or in
a manner such that the uncertificated Notes are described in SECTION
163(f)(2)(B) of the Code,
(4) to add Guarantees with respect to the Notes, including any
Subsidiary Guarantees, or to secure the Notes,
(5) to add to the covenants of the Company or any Subsidiary
Guarantors for the benefit of the Noteholders or to surrender any right or
power conferred upon the Company or any Subsidiary Guarantor,
(6) to make any change that does not adversely affect the rights
of any Holder under the Notes or this Indenture, or
(7) to comply with any requirement of the Commission in connection
with the qualification of this Indenture under the TIA or otherwise.
Section 902. WITH CONSENT OF HOLDERS. Subject to SECTION 608, the Company,
any Subsidiary Guarantor (as applicable), when authorized by their respective
board resolutions, and the Trustee may amend or supplement this Indenture or the
Notes with the written consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of or tender offer
or exchange offer for Notes), and the Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes by written notice to the
Trustee (including, without limitation, consents obtained in connection with a
purchase of or tender offer or exchange offer for the Notes) may, subject to
SECTION 613, waive any past or existing Default or Event of Default or
compliance by the Company or any Subsidiary Guarantor with any provision of this
Indenture, the Notes or any Subsidiary Guarantee.
Notwithstanding the provisions of this SECTION 902, without the consent of
each Holder affected thereby, an amendment or waiver, including a waiver
pursuant to SECTION 613, may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest
on any Note;
(3) reduce the principal of or extend the Stated Maturity of any
Note;
95
<Page>
(4) reduce the amount payable upon the redemption of any Note or
change the time at which any Note may be redeemed pursuant to SECTION 1001;
(5) make any Note payable in money other than that stated in the
Note;
(6) impair the right of any Holder of the Notes to receive payment
of principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on
or with respect to such Holder's Notes;
(7) make any change in the amendment provisions described in this
SECTION 902 or the waiver provisions described in SECTION 613;
(8) make any change in the ranking or priority of any Note that
would adversely affect the Holders of the Notes;
(9) make any change in any Subsidiary Guarantee that would
adversely affect the Holders of the Notes.
Notwithstanding SECTION 901 and the foregoing provisions of this SECTION
902, no amendment to ARTICLE 14 or SECTION 1305, respectively, or the
definitions relating thereto that adversely affects the rights of any Holder of
Senior Indebtedness of the Company or a Subsidiary Guarantor then outstanding
may be made unless the holders of such Senior Indebtedness (or their
Representative) consent in writing to such amendment.
It shall not be necessary for the consent of the Holders under this SECTION
902 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under SECTION 901 or this SECTION
902 becomes effective, the Company shall mail to the Holders of the Notes with a
copy to the Trustee, a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice to all Holders of the
Notes, or any defect therein, shall not, however, in any way impair or affect
the validity of any supplemental indenture or effectiveness of any such
amendment, supplement or waiver.
Section 903. EXECUTION OF AMENDMENTS, SUPPLEMENTS OR WAIVERS. The Trustee
shall sign any amendment, supplement or waiver authorized pursuant to this
ARTICLE 9 if the amendment, supplement or waiver does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, supplement or waiver, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel to the effect that the execution of such amendment,
supplement or waiver is
96
<Page>
authorized or permitted by this Indenture and has been duly authorized, executed
and delivered by the Company and that, subject to applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereinafter in effect affecting creditors'
rights or remedies generally and the general principles of equity (including,
without limitation, standards of materiality, good faith, fair dealing and
reasonableness), whether considered in a proceeding at law or at equity, such
amendment, supplement or waiver is a valid and binding agreement of the Company,
enforceable against it in accordance with its terms.
Section 904. REVOCATION AND EFFECT OF CONSENTS. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of that Note or any
Note that evidences all or any part of the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note. Subject to the
following paragraph of this SECTION 904, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note by notice to the Trustee or the
Company received by the Trustee or the Company, as the case may be, before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver. The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver as set forth in SECTION 108.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder of Notes, unless it makes a change described in any of clauses (i)
through (viii) of the second paragraph of SECTION 902. In that case, the
amendment, supplement or waiver shall bind each Holder of a Note who has
consented to it and every subsequent Holder of such Note or any Note that
evidences all or any part of the same debt as the consenting Holder's Note.
Section 905. CONFORMITY WITH TIA. Every amendment or supplemental indenture
executed pursuant to this Article shall conform to the requirements of the TIA
as then in effect.
Section 906. NOTATION ON OR EXCHANGE OF NOTES. If an amendment, supplement
or waiver changes the terms of a Note, the Trustee may require the Holder of the
Note to deliver it to the Trustee. The Trustee may place an appropriate notation
on the Note about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company, in exchange for the
Note, shall issue and the Trustee shall authenticate a new Note that reflects
the changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
ARTICLE 10
97
<Page>
REDEMPTION OF NOTES
Section 1001. RIGHT OF REDEMPTION.
(a) Except as set forth in paragraph (b) below, the Company shall not
have the option to redeem any Notes prior to June 15, 2007. Thereafter, the
Company shall have the option to redeem the Notes, in whole or in part, upon not
less than 30 nor more than 60 days' prior notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest, if any, thereon to the applicable redemption date (subject to
SECTION 307 and the right of Holders of record on the relevant record date to
receive interest due on the relevant Interest Payment Date), if redeemed during
the twelve-month period beginning on June 15 of the years indicated below:
<Table>
<Caption>
YEAR REDEMPTION
PRICE
2007 105.125%
2008 103.417%
2009 101.708%
2010 and thereafter 100.000%
</Table>
(b) Notwithstanding the foregoing, at any time prior to June 15, 2005,
the Company may redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture at a redemption price of 110.250% of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon, if any, to
the redemption date (subject to SECTION 307 and the right of Holders of record
on the relevant record date to receive interest due on the relevant Interest
Payment Date), with the net cash proceeds of one or more Public Equity
Offerings; PROVIDED that (1) at least 65% of the aggregate principal amount of
Notes issued under the Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by the Company and its
Subsidiaries); and (2) such redemption shall occur within 60 days of the date of
the closing of such Public Equity Offering.
Section 1002. APPLICABILITY OF ARTICLE. Redemption of Notes as permitted by
SECTION 1001 shall be made in accordance with this ARTICLE 10.
Section 1003. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Notes shall be evidenced by a Company Order and an
Officers' Certificate to the effect that such redemption will comply with the
conditions herein. In case of any redemption at the election of the Company of
all or less than all of the Notes, the Company shall, not less than 45 days but
not more than 60 days prior to the redemption
98
<Page>
date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and, if less than all the
Notes are to be redeemed, the principal amount of Notes to be redeemed.
Section 1004. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. In the case of
any partial redemption, selection of the Notes for redemption will be made not
more than 60 days and not less than 30 days prior to the redemption date by the
Trustee, from the Outstanding Notes not previously called for redemption, in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed, or if the Notes are not listed, then on a
pro rata basis, by lot or by such other method as the Trustee in its sole
discretion shall deem to be fair and appropriate, although no Note of $1,000 in
original principal amount or less will be redeemed in part.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. On and after the
redemption date, interest will cease to accrue on Notes or portions thereof
called for redemption.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of
any Note redeemed or to be redeemed only in part, to the portion of the
principal of such Note that has been or is to be redeemed.
The Company shall certify to the Trustee, from time to time, if the Notes
are listed on a national securities exchange and absent receipt of any such
certification from the Company, the Trustee shall be entitled to assume in good
faith that the Notes are not listed on a national securities exchange.
Section 1005. NOTICE OF REDEMPTION. Notice of redemption or purchase as
provided in SECTION 1001 shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date, to
each Holder of Notes to be redeemed, at such Holder's address appearing in the
Note Register.
Any such notice shall state:
(1) the redemption date
(2) the redemption price
(3) if less than all Outstanding Notes are to be redeemed, the
identification of the Notes to be redeemed
(4) if any Note is being redeemed in part, the portion of the
principal amount
99
<Page>
of such Note to be redeemed and that, after the redemption date upon the
surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original
Note
(5) the paragraph of the Notes and/or the Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed
(6) that on the redemption date the redemption price will become
due and payable upon each such Note, and that, unless the Company defaults
in making such redemption payment or the Paying Agent is prohibited from
making such payment pursuant to the terms of this Indenture, interest
thereon shall cease to accrue from and after said date
(7) the place or places where such Notes are to be surrendered for
payment of the Redemption Price, and
(8) the CUSIP, the ISIN and other security identification numbers,
if any, subject to SECTION 311 hereof.
Notice of such redemption or purchase of Notes to be so redeemed or
purchased at the election of the Company shall be given by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company and shall be irrevocable.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
Holder of any Note designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Note.
Section 1006. DEPOSIT OF REDEMPTION PRICE. At or prior to 10:00 a.m., New
York City time, on any redemption date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, the Company shall segregate and hold in trust as provided in SECTION 403)
an amount of money sufficient to pay the redemption price of, and any accrued
and unpaid interest on, all the Notes or portions thereof which are to be
redeemed on that date.
Section 1007. NOTES PAYABLE ON REDEMPTION DATE. Notice of redemption having
been given as provided in this ARTICLE 10, the Notes to be so redeemed shall, on
the redemption date, become due and payable at the redemption price herein
specified and from and after such date (unless Company shall default in the
payment of the redemption price or the Paying Agent is prohibited from paying
the redemption price pursuant to the terms of this Indenture) such Notes shall
cease to bear interest. Upon surrender of such Notes for redemption in
accordance with such notice, such Notes shall be paid by the Company at
100
<Page>
the redemption price. Installments of interest whose Interest Payment Date is on
or prior to the redemption date shall be payable to the Holders of such Notes
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of SECTION 307.
On and after any redemption date, if money sufficient to pay the redemption
price of, and any accrued and unpaid interest on, Notes called for redemption
shall have been made available in accordance with SECTION 1006, the Notes (or
the portions thereof) called for redemption will cease to accrue interest and
the only right of the Holders of such Notes (or portions thereof) will be to
receive payment of the redemption price of and subject to the last sentence of
the preceding paragraph of this SECTION 1007, any accrued and unpaid interest on
such Notes (or portions thereof) to the redemption date. If any Note (or portion
thereof) called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the redemption date at the rate borne by the Note (or portion thereof).
Section 1008. NOTES REDEEMED IN PART. Any Note that is to be redeemed only
in part shall be surrendered at the Place of Payment (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Note without service charge, a new Note or Notes, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so surrendered.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 1101. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
upon Company Order cease to be of further effect (except as to any surviving
rights of transfer or exchange of Notes herein, rights to payment and rights to
replacement of mutilated, destroyed, lost or stolen Notes expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in SECTION 306, and (ii)
Notes for whose payment money has theretofore been deposited in
trust or segregated and held in
101
<Page>
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in SECTION 403) have been
delivered to the Trustee cancelled or for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee
cancelled or for cancellation have become due and payable;
(2) the Company or any Subsidiary Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for that purpose an amount in United States dollars, non-callable
Government Securities, or a combination thereof, sufficient to pay and
discharge the entire Indebtedness on such Notes not theretofore delivered
to the Trustee cancelled or for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of Notes that
have become due and payable), or to the Stated Maturity or Redemption Date,
as the case may be;
(3) the Company or any Subsidiary Guarantor has paid or caused to
be paid all other sums then payable hereunder by the Company or any
Subsidiary Guarantor; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each to the effect that all
conditions precedent provided for in this SECTION 1101 relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under SECTION 707 and, if money shall
have been deposited with the Trustee pursuant to clause (2) of this SECTION
1101, the obligations of the Trustee under SECTION 1102, shall survive.
Section 1102. APPLICATION OF TRUST MONEY. Subject to the provisions of the
last paragraph of SECTION 403, all money deposited with the Trustee pursuant to
SECTION 1101 shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest on the Notes; but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE 12
DEFEASANCE OR COVENANT DEFEASANCE
Section 1201. THE COMPANY'S OPTION TO ELECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE. The
102
<Page>
Company may, at its option, at any time, elect to have discharged the
obligations of the Company with respect to the Outstanding Notes and to have
terminated the obligations of any or all Subsidiary Guarantors with respect to
the Subsidiary Guarantees, as the case may be, in each case and to the extent as
set forth in this ARTICLE 12, and elect to have either SECTION 1202 or SECTION
1203 be applied to all of the Outstanding Notes (the "DEFEASED NOTES"), at any
time upon compliance with the conditions set forth in SECTION 1204.
Section 1202. LEGAL DEFEASANCE AND DISCHARGE. Upon the Company's exercise
under SECTION 1201 of the option applicable to this SECTION 1202, the Company
and each of the Subsidiary Guarantors shall be deemed to have been released and
discharged from its obligations with respect to the Defeased Notes on the date
the relevant conditions set forth in SECTION 1204 below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal Defeasance means
that the Company and each of the Subsidiary Guarantors shall be deemed to have
paid and discharged the entire indebtedness represented by the Defeased Notes,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
SECTION 1205 and the other Sections of this Indenture referred to in clauses (a)
and (b) below, and the Company and each of the Subsidiary Guarantors shall be
deemed to have satisfied all other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following, which shall survive until otherwise terminated or discharged
hereunder:
(a) the rights of Holders of Defeased Notes to receive, solely from the
trust fund described in SECTION 1204 and as more fully set forth in such
Section, payments in respect of the principal of and premium, if any, and
interest on such Notes when such payments are due,
(b) the Company's obligations with respect to such Defeased Notes under
SECTIONS 304, 305, 306, 402 and 403,
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including the Trustee's rights under SECTION 707, and the Company's
obligations in connection therewith and
(d) this ARTICLE 12.
Subject to compliance with this ARTICLE 12, the Company may, at its option
and at any time, exercise its option under this SECTION 1202 notwithstanding the
prior exercise of its option under SECTION 1203 with respect to the Notes.
Section 1203. COVENANT DEFEASANCE. Upon the Company's exercise under
SECTION 1201 of the option applicable to this SECTION 1203,
103
<Page>
(a) (i) the Company and each of the Subsidiary Guarantors shall be
released from its respective obligations under any covenant or provision
contained in SECTION 404 and SECTIONS 406 through 419 and (ii) the provisions of
clauses (4) and (5) of SECTION 501 shall not apply, and
(b) the occurrence of any event specified in any of the following clauses
of SECTION 601 shall be deemed not to be or result in a default or an Event of
Default: (i) clause (3) (with respect to SECTIONS 410 and 414, and with respect
to clauses (4) and (5) of SECTION 501), (ii) clause (4) (with respect to SECTION
404, 406, 407, 408, 409, 411, 412, 413, 415, 416, 417, 418 or 419 and with
respect to any covenants provided pursuant to SECTION 901(5)) and (iii) clauses
(5), (6) and (7),
in each case under clause (a) or (b) above with respect to the Defeased Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"). The Notes shall thereafter be deemed not to be
Outstanding for the purposes of any direction, waiver, consent or declaration or
Act of Holders (and the consequences of any thereof) in connection with such
covenants or provisions, but shall continue to be deemed Outstanding for all
other purposes hereunder. For this purpose, Covenant Defeasance means that, with
respect to the Outstanding Notes, the Company and each of the Subsidiary
Guarantors may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant or provision,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or provision or by reason of any reference in any such
covenant or provision to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under SECTION 601, but, except as specified above, the remainder of this
Indenture and such Outstanding Notes shall be unaffected thereby.
Section 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either SECTION 1202 or
SECTION 1203 to the Outstanding Notes:
(1) the Company shall have irrevocably deposited with the Trustee,
in trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest on the Outstanding Notes on the stated
maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity or to
a particular redemption date;
(2) in the case of an election under SECTION 1202 hereof, the
Company shall
104
<Page>
have delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (b) since
the date hereof, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such opinion
of counsel shall confirm that, the Holders of the Outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under SECTION 1203 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that the Holders of the
Outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing either: (a) on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to
such deposit); or (b) or insofar as SECTIONS 601(8) or 601(9) are
concerned, at any time in the period ending on the 91st day after the date
of deposit;
(5) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under any material
agreement or instrument (other than the Indenture) to which the Company or
any of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
(7) the Company must deliver to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have
been complied with; and
(8) the Company must have delivered to the Trustee an opinion of
counsel to the effect that after the 91st day following the deposit, the
trust funds will not be
105
<Page>
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
From and after the time of any deposit pursuant to clause (1) of the first
paragraph of this SECTION 1204, the money or Government Securities so deposited
shall not be subject to the rights of the holders of Senior Indebtedness
pursuant to the subordination provisions of ARTICLE 14 or SECTION 1304.
Section 1205. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of SECTION 403, all money and Government Securities (including the
proceeds thereof) deposited with the Trustee (or such other Person that would
qualify to act as successor trustee under ARTICLE 7, collectively and solely for
purposes of this SECTION 1205 and SECTION 1412, the "TRUSTEE") pursuant to
SECTION 1204 in respect of the Defeased Notes shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee and its agents and hold
them harmless against any tax, fee or other charge imposed on or assessed
against the Government Securities deposited pursuant to SECTION 1204 or the
principal, premium, if any, and interest received in respect thereof, other than
any such tax, fee or other charge that by law is for the account of the Holders
of the Defeased Notes.
Anything in this ARTICLE 12 to the contrary notwithstanding, the Trustee
shall deliver to the Company from time to time upon Company Request any money or
Government Securities held by it as provided in SECTION 1204 hereof that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof to the Trustee, are in excess of
the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance. Subject to ARTICLE 7, the
Trustee shall not incur any liability to any Person by relying on such opinion.
Section 1206. REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money or Government Securities in accordance with SECTION 1202 or
1203, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company, the Subsidiary Guarantors and
any other obligor upon the Notes under this Indenture, the Notes and any
Subsidiary Guarantees shall be revived and reinstated as
106
<Page>
though no deposit had occurred pursuant to SECTION 1202 or 1203, as the case may
be, until such time as the Trustee or Paying Agent is permitted to apply all
such money and Government Securities in accordance with SECTION 1202 or 1203, as
the case may be; PROVIDED, HOWEVER, that if the Company, any Subsidiary
Guarantor or any other obligor upon the Notes makes any payment of principal,
premium, if any, or interest on any Note following the reinstatement of its
obligations, then the Company, any Subsidiary Guarantor and any other obligor
upon the Notes shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money and Government Securities held by the
Trustee or Paying Agent.
Section 1207. REPAYMENT TO THE COMPANY. The Trustee shall pay to the
Company upon Company Request any money held by it in trust for the payment of
principal of, premium, if any, or interest on any Note and remaining unclaimed
for two years after such principal and premium, if any, or interest has become
due and payable. After payment to the Company, Holders entitled to money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person and all liability of the
Trustee or Paying Agent with respect to such money shall thereupon cease.
ARTICLE 13
SUBSIDIARY GUARANTEES
Section 1301. SUBSIDIARY GUARANTEES GENERALLY.
(a) SUBSIDIARY GUARANTEES. Each Subsidiary Guarantor from time to time
party hereto, as primary obligor and not merely as surety, hereby jointly and
severally, irrevocably and fully and unconditionally Guarantees, on a senior
subordinated basis, the punctual payment when due, whether at Stated Maturity,
by acceleration or otherwise, of all monetary obligations of the Company under
this Indenture and the Notes, whether for principal or premium (if any) of, or
interest on, the Notes, expenses, indemnification or otherwise (all such
obligations guaranteed by such Subsidiary Guarantors being herein called the
"GUARANTEED OBLIGATIONS"). Failing payment when due of any amount so guaranteed,
each Subsidiary Guarantor will be obligated to pay or cause the payment of the
same immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under each Subsidiary Guarantee, and shall
entitle the Holders to accelerate the obligations of the Subsidiary Guarantors
hereunder in the same manner and to the same extent as the obligations of the
Company.
Any term or provision of this Indenture notwithstanding, each Subsidiary
Guarantee shall not exceed the maximum amount that can be guaranteed by the
applicable Subsidiary Guarantor without rendering the Subsidiary Guarantee, as
it relates to such Subsidiary Guarantor, voidable under applicable law relating
to fraudulent
107
<Page>
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(b) Further Agreements of Subsidiary Guarantors.
(i) Each Subsidiary Guarantor hereby waives (to the fullest extent
permitted by law) the benefit of diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that (except as
otherwise provided in SECTION 1303) its Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in
the Notes, this Indenture, and its Subsidiary Guarantee. Such Subsidiary
Guarantee is a guarantee of payment and not of collection. Each Subsidiary
Guarantor further agrees (to the fullest extent permitted by law) that, as
between it, on the one hand, and the Holders of Notes and the Trustee, on
the other hand, subject to this ARTICLE 13 and ARTICLE 14, (1) the maturity
of the obligations guaranteed by its Subsidiary Guarantee may be
accelerated as and to the extent provided in ARTICLE 6 for the purposes of
such Subsidiary Guarantee notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed by such Subsidiary Guarantee, and (2) in the event of any
acceleration of such obligations as provided in ARTICLE 6, such obligations
(whether or not due and payable) shall forthwith become due and payable by
such Subsidiary Guarantor in accordance with the terms of this SECTION 1301
for the purpose of such Subsidiary Guarantee. Neither the Trustee nor any
other Person shall have any obligation to enforce or exhaust any rights or
remedies or to take any other steps under any security for the Guaranteed
Obligations or against the Company or any other Person or any property of
the Company or any other Person before the Trustee is entitled to demand
payment and performance by any or all Subsidiary Guarantors of their
obligations under their respective Subsidiary Guarantees or under this
Indenture.
(ii) Until terminated in accordance with SECTION 1303, each
Subsidiary Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for
liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Company's assets, and
shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance
of the Notes are, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on such
Notes, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In
the event that any
108
<Page>
payment, or any part thereof, is rescinded, reduced, restored or returned,
the Notes shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
(c) Each Subsidiary Guarantor that makes a payment or distribution under
any Subsidiary Guarantee shall have the right to seek contribution from the
Company or any non-paying Subsidiary Guarantor that has also Guaranteed the
Guaranteed Obligations in respect of which such payment or distribution is made,
so long as the exercise of such right does not impair the rights of the Holders
under this Subsidiary Guarantee.
(d) Each Subsidiary Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that its Subsidiary Guarantee and the waiver set forth in SECTION
1306 is knowingly made in contemplation of such benefits.
(e) Each Subsidiary Guarantor also hereby agrees to pay any and all
out-of-pocket expenses (including counsel fees and expenses) incurred by the
Trustee or the Holders in enforcing any rights under its Subsidiary Guarantee.
(f) Each Subsidiary Guarantor hereby agrees that its Guarantee of the
Guaranteed Obligations shall be unconditional, irrespective of the validity,
regularity or enforceability of this Indenture, the Notes or the obligations of
the Company or any other Subsidiary Guarantors to the Holders or the Trustee
hereunder or thereunder, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or
thereof, any release of any other Subsidiary Guarantor, the recovery of any
judgment against the Company, any action to enforce the same, whether or not a
Subsidiary Guarantee is affixed to any particular Note, any set-off or
counterclaim or other reduction whatsoever (whether for taxes or otherwise), or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
Section 1302. CONTINUING GUARANTEES. Each Subsidiary Guarantee shall be a
continuing Guarantee and shall (i) remain in full force and effect until payment
in full of the principal amount of all outstanding Notes (whether by payment at
maturity, purchase, redemption, defeasance, retirement or other acquisition) and
all other Guaranteed Obligations then due and owing, unless earlier terminated
as provided in SECTION 1303, (ii) be binding upon such Subsidiary Guarantor and
(iii) inure to the benefit of and be enforceable by the Trustee, the Holders and
their permitted successors, transferees and assigns.
Section 1303. RELEASE OF SUBSIDIARY GUARANTEES. Notwithstanding the
provisions of SECTION 1302 any Subsidiary Guarantee will be subject to
termination and discharge under the circumstances described in this SECTION
1303:
109
<Page>
(a) Any Subsidiary Guarantor will automatically and unconditionally be
released from all obligations under its Subsidiary Guarantee, and such
Subsidiary Guarantee shall thereupon terminate and be discharged and of no
further force or effect:
(1) in connection with any sale or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor (including by
way of merger or consolidation), if the Company applies the Net Proceeds of
that sale or other disposition, in accordance with the provisions of
SECTION 410 hereof; or
(2) in connection with any sale of all of the Capital Stock of a
Subsidiary Guarantor, if the Company applies the Net Proceeds of that sale
in accordance with the applicable provisions of SECTION 415 hereof; or
(3) if the Company designates any Restricted Subsidiary that is a
Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with the
provisions of SECTION 419 hereof;
and in each case, in compliance with the other provisions of the Indenture.
Upon any such occurrence specified in this SECTION 1303, the Trustee shall
execute any documents reasonably required in order to evidence such release,
discharge and termination in respect of such Subsidiary Guarantor's Subsidiary
Guarantee, as the case may be.
Section 1304. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
A Subsidiary Guarantor may not sell or otherwise dispose of all or
substantially all of its assets or consolidate with or merge with or into
(whether or not such Subsidiary Guarantor is the surviving Person) another
Person other than the Company or another Subsidiary Guarantor, unless:
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) (a) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such consolidation or
merger is a corporation or limited liability company, organized or existing
under the laws of the United States, any state thereof or the District of
Columbia and assumes all the obligations of that Subsidiary Guarantor under
this Indenture, its Subsidiary Guarantee and any Registration Rights
Agreement pursuant to a supplemental indenture satisfactory to the Trustee;
or
(b) such sale or other disposition complies with SECTION 410,
including
110
<Page>
the application of the Net Proceeds therefrom.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by a Subsidiary Guarantor, such successor Person shall succeed to and
be substituted for a Subsidiary Guarantor with the same effect as if it had been
named herein as a Subsidiary Guarantor. Such successor Person thereupon may
cause to be signed any or all of the Subsidiary Guarantees to be endorsed upon
all of the Notes issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee. All the Subsidiary Guarantees so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as set forth in ARTICLES 4 and 5 hereof, and notwithstanding clauses
(1) and (2) above, nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor, or shall prevent any sale or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or another Subsidiary Guarantor.
Section 1305. AGREEMENT TO SUBORDINATE. The obligations of each Subsidiary
Guarantor under its Subsidiary Guarantee pursuant to this ARTICLE 13 shall be
junior and subordinated to the prior payment in full of all Senior Indebtedness
of such Subsidiary Guarantor (including Senior Indebtedness of the Subsidiary
Guarantor incurred after the date of this Indenture) on the same basis as the
Notes are junior and subordinated to the prior payment in full of all Senior
Indebtedness of the Company as described in ARTICLE 14 hereof. For the purposes
of the foregoing sentence, the Trustee and the Holders shall have the right to
receive and/or retain payments by any of the Subsidiary Guarantors only at such
times as they may receive and/or retain payments in respect of the Notes
pursuant to this Indenture, including ARTICLE 14 hereof.
Section 1306. WAIVER OF SUBROGATION. Each Subsidiary Guarantor hereby
irrevocably waives any claim or other rights that it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of the Company's obligations under the Notes and this Indenture
or such Subsidiary Guarantor's obligations under its Subsidiary Guarantee and
this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder against the Company, whether or not such claim,
111
<Page>
remedy or right arises in equity, or under contract, statute or common law,
until this Indenture is discharged and all of the Notes are discharged and paid
in full. If any amount shall be paid to a Subsidiary Guarantor in violation of
the preceding sentence and the Notes shall not have been paid in full, such
amount shall have been deemed to have been paid to such Subsidiary Guarantor for
the benefit of, and held in trust for the benefit of, the Holders of the Notes,
and shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or unmatured, in accordance
with the terms of this Indenture.
Section 1307. NOTATION NOT REQUIRED. Neither the Company nor any Subsidiary
Guarantor shall be required to make a notation on the Notes to reflect any
Subsidiary Guarantee or any such release, termination or discharge thereof.
Section 1308. SUCCESSORS AND ASSIGNS OF THE SUBSIDIARY GUARANTORS. All
covenants and agreements in this Indenture by each Subsidiary Guarantor shall
bind its respective successors and assigns, whether so expressed or not.
Section 1309. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES. The Company
shall cause each Subsidiary that is required to become a Subsidiary Guarantor
pursuant to SECTION 413, to promptly execute and deliver to the Trustee a
supplemental indenture substantially in the form set forth in EXHIBIT B to this
Indenture, or otherwise in form and substance reasonably satisfactory to the
Trustee, evidencing its Subsidiary Guarantee on substantially the terms set
forth in this ARTICLE 13. Concurrently therewith, the Company shall deliver to
the Trustee an Opinion of Counsel from a firm of outside counsel in form and
substance satisfactory to the Trustee to the effect that such supplemental
indenture has been duly authorized, executed and delivered by such Restricted
Subsidiary and that, subject to the applicable bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and other
laws now or hereafter in effect affecting creditors' rights or remedies
generally and the general principles of equity, whether considered in a
proceeding at law or at equity such supplemental indenture is a valid and
binding agreement of such Restricted Subsidiary, enforceable against such
Restricted Subsidiary in accordance with its terms.
Section 1310. NOTICES. Notice to any Subsidiary Guarantor shall be
sufficient if addressed to such Subsidiary Guarantor in care of the Company at
the address, and place and in the manner provided in SECTION 109.
ARTICLE 14
SUBORDINATION
Section 1401. AGREEMENT TO SUBORDINATE. The Company agrees, and each Holder
by accepting a
112
<Page>
Note agrees, that the Indebtedness evidenced by the Notes is subordinated in
right of payment, to the extent and in the manner provided in this ARTICLE 14,
to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness of the Company (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Indebtedness. Only Indebtedness of the Company
that is Senior Indebtedness shall rank senior to the Notes in accordance with
the provisions set forth herein.
Section 1402. LIQUIDATION; DISSOLUTION; BANKRUPTCY. The holders of Senior
Indebtedness of the Company will be entitled to receive payment in full in cash
or Cash Equivalents of all Obligations due in respect of Senior Indebtedness of
the Company (including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Indebtedness of the
Company whether or not such interest is an allowed claim under applicable law)
before the Holders of Notes will be entitled to receive any payment with respect
to the Notes (except that Holders of Notes may receive and retain Permitted
Junior Securities and payments made from the trust pursuant to ARTICLE 12
hereof), in the event of any distribution to creditors of the Company: (i) in a
liquidation or dissolution of the Company; (ii) in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
properties; (iii) in an assignment for the benefit of creditors; or (iv) in any
marshaling of the Company's assets and liabilities.
Section 1403. DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS. The Company may
not make any payment (or deposit) in respect of the Notes (except in Permitted
Junior Securities or from the trust pursuant to ARTICLE 12 hereof):
(a) In the event of and during the continuation beyond any applicable
grace period of any default in the payment of principal of, interest or premium,
if any, on any Designated Senior Indebtedness, or any Obligation owing from time
to time under or in respect of Designated Senior Indebtedness; or
(b) If any event of default other than as described in clause (a) above
with respect to any Designated Senior Indebtedness shall have occurred and be
continuing permitting the holders of such Designated Senior Indebtedness or the
holders of any series thereof (or their Representative or Representatives) to
declare such Designated Senior Indebtedness due and payable prior to the date on
which it would otherwise have become due and payable (a "NONPAYMENT DEFAULT").
Payments on the Notes may and shall be resumed:
(1) in the case of a default specified in clause (a) of the
preceding paragraph, upon the date on which such default is cured or waived
in writing in accordance
113
<Page>
with the instruments governing such designated Senior Indebtedness or such
acceleration shall have been rescinded or annulled; and
(2) in case of a Nonpayment Default specified in clause (b) of the
preceding paragraph, during the period (a "PAYMENT BLOCKAGE PERIOD")
commencing on the date the Trustee receives written notice (a "PAYMENT
BLOCKAGE NOTICE") of such default from the Company or a Representative of
the holders of such Designated Senior Indebtedness (which notice shall be
binding on the Company, the Trustee and the Holders of Notes as to the
occurrence of such a Nonpayment Default) and ending upon the earlier of the
date on which such default is cured or waived or 179 days after the date on
which the applicable Payment Blockage Notice is received, unless the
maturity of such Designated Senior Indebtedness of the Company has been
accelerated.
No new Payment Blockage Notice may be delivered to the Company or the
Trustee that would start a new Payment Blockage Period unless and until: 360
days have elapsed since the delivery of the immediately prior Payment Blockage
Notice that started a Payment Blockage Period. No Nonpayment Default that
existed or was continuing with respect to the Designated Senior Indebtedness on
the date of delivery of any Payment Blockage Notice to the Trustee shall be, or
be made, the basis for the commencement of any subsequent Payment Blockage
Period unless such default has been cured or waived for a period of not less
than 90 days.
Section 1404. ACCELERATION OF SECURITIES. If payment of the Notes is
accelerated because of an Event of Default or if an Event of Default on the
Notes occurs, the Company shall promptly notify holders of Senior Indebtedness
of the acceleration.
Section 1405. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes (except in Permitted Junior Securities or
from the trust pursuant to ARTICLE 12 hereof) at a time when such payment is
prohibited by ARTICLE 14 hereof and the Trustee or such Holder, as applicable,
has actual knowledge that such payment is prohibited by ARTICLE 14 hereof, such
payment shall be held by the Trustee or such Holder, as applicable, in trust for
the benefit of, and shall be paid forthwith over and delivered, upon written
request, to the holders of Senior Indebtedness as their interests may appear or
their Representative under the indenture or other agreement (if any) pursuant to
which Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the payment of all Obligations with respect to
Senior Indebtedness remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
114
<Page>
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform only such obligations on the part of the Trustee as are specifically
set forth in this ARTICLE 14, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of Holders
or the Company or any other Person money or assets to which any holders of
Senior Indebtedness shall be entitled by virtue of this ARTICLE 14, except if
such payment is made as a result of the willful misconduct or gross negligence
of the Trustee.
Section 1406. NOTICE BY THE COMPANY. The Company shall promptly notify the
Trustee and the Paying Agent in writing of any facts known to the Company that
would cause a payment of any Obligations with respect to the Notes to violate
this ARTICLE 14, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Indebtedness as provided in this
ARTICLE 14.
Section 1407. SUBROGATION. After all Senior Indebtedness is paid in full
and until the Notes are paid in full, Holders of Notes shall be subrogated
(equally and ratably with all other Pari Passu Indebtedness) to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the Holders
of Notes have been applied to the payment of Senior Indebtedness. A distribution
made under this ARTICLE 14 to holders of Senior Indebtedness that otherwise
would have been made to Holders of Notes is not, as between the Company and
Holders, a payment by the Company on the Notes.
Section 1408. RELATIVE RIGHTS.
This ARTICLE 14 defines the relative rights of Holders of Notes and holders
of Senior Indebtedness. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of Notes, the obligation
of the Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(b) affect the relative rights of Holders of Notes and creditors of the
Company other than their rights in relation to holders of Senior Indebtedness;
or
(c) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Indebtedness to receive distributions and payments
otherwise payable to Holders of Notes.
If the Company fails because of this ARTICLE 14 to pay principal of or
interest on a
115
<Page>
Note on the due date, the failure is still a Default or Event of Default.
Section 1409. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY. No right of
any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.
Section 1410. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
Section 1411. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this ARTICLE 14 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any Obligations with respect to
the Notes to violate this ARTICLE 14. Only the Company or a Representative may
give the notice. Nothing in this ARTICLE 14 shall impair the claims of, or
payments to, the Trustee under or pursuant to SECTION 707 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any co-registrar and the Paying Agent may do the same with like
rights.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to SECTION 707.
Section 1412. AUTHORIZATION TO EFFECT SUBORDINATION. Each Holder of Notes,
by the Holder's acceptance thereof, authorizes and directs the Trustee on such
Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this ARTICLE 14, and appoints the
Trustee to act as such Holder's attorney-in-fact for any and all such purposes.
If the Trustee does not file a proper proof of claim or proof of debt in the
form required in any proceeding referred to in Section 609 hereof at least 30
days before the expiration of the time to file such claim, the Representative of
the lenders under the Credit Agreement is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
Section 1413. TRUST MONEYS NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of
Government Securities held in
116
<Page>
trust under ARTICLE 12 by the Trustee for the payment of principal of and
premium, if any, and interest on the Notes shall not be subordinated to the
prior payment of any Senior Indebtedness of the Company or subject to the
restrictions set forth in this ARTICLE 14, and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
Section 1414. TRUSTEE ENTITLED TO RELY. Upon any payment or distribution
pursuant to this ARTICLE 14, the Trustee and the Holders shall be entitled to
rely conclusively (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in SECTION 1402
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this ARTICLE 14. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this ARTICLE 14, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this ARTICLE 14, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of SECTIONS
701 and 703 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this ARTICLE 14.
Section 1415. NO SUSPENSION OF REMEDIES. Nothing contained in this ARTICLE
14 shall limit the right of the Trustee or the Holders to take any action to
accelerate the maturity of such Notes pursuant to ARTICLE 6 or to pursue any
rights or remedies hereunder or under applicable law.
Section 1416. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS. The
Trustee shall not be deemed to own any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if the Trustee shall in
good faith mistakenly pay over or distribute to Holders of Notes or to the
Company or to any other person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
117
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
IESI CORPORATION
By:
Name: Thomas J. Cowee
Title: Vice President, Chief Financial
Officer and Treasurer
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
By:
Name: Thomas J. Cowee
Title: Vice President, Chief Financial
Officer and Treasurer
IESI DE Corporation
IESI DE LP Corporation
By:
Name: Christopher V. Della Pietra
Title: Vice President
IESI TX Landfill LP
By: IESI TX GP Corporation,
its General Partner
By:
Name: Thomas J. Cowee
Title: Vice President, Chief Financial
Officer and Treasurer
118
<Page>
THE BANK OF NEW YORK, as Trustee
By:
Name:
Title:
119
<Page>
APPENDIX A
PROVISIONS RELATING TO NOTES
1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
1.1 DEFINITIONS.
For the purposes of this Appendix A the following terms shall have the
meanings indicated below
"APPLICABLE PROCEDURES" means, with respect to any transfer or transaction
involving a Regulation S Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Global Note, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"CERTIFICATED NOTE" means a certificated Note bearing (i) the Certificated
Notes Legend and (ii) the Private Placement Legend if the transfer of such Note
is restricted by applicable law, but that does not bear the Global Notes Legend.
"CERTIFICATED NOTES LEGEND" means the legend set forth in Section
2.2(e)(vi) herein.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or any successor
securities clearing agency.
"DEPOSITARY" means The Depository Trust Company, its nominees and their
respective successors.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System, or any successor securities clearing agency.
"GLOBAL NOTES LEGEND" means the legend set forth in Section 2.2(e)(vii)
herein.
"IAI" means an institutional "accredited investor" as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"IAI NOTES" means all Initial Notes and any Additional Notes transferred to
IAIs who are not QIBs in accordance with the provisions of the Notes and the
Indenture and, in the case of any Initial Additional Notes offered and sold to
IAIs pursuant to a Purchase Agreement, in accordance with such Purchase
Agreement.
"INITIAL PURCHASERS" means (1) with respect to the Initial Notes issued on
the Issue Date, Credit Suisse First Boston Corporation, Salomon Smith Barney
Inc., Fleet
120
<Page>
Securities Inc. and J.P. Morgan Securities Inc. and (2) with respect to each
issuance of Additional Notes, the Persons purchasing such Additional Notes under
the related Purchase Agreement.
"NON-U.S. PERSON" means a Person who is not a U.S. Person, as defined in
Regulation S.
"NOTES CUSTODIAN" means the custodian with respect to a Global Note (as
appointed by the Depositary) or any successor Person thereto, who shall
initially be the Trustee.
"PRIVATE EXCHANGE" means the offer by the Company, pursuant to a
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
each Initial Purchaser, in exchange for the Initial Notes held by the Initial
Purchaser as part of its initial distribution, a like aggregate principal amount
of Private Exchange Notes.
"PRIVATE EXCHANGE NOTES" means any 10 1/4% Senior Subordinated Notes due
2012 of the Company issued in connection with a Private Exchange.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section 2.2(e)(i)
herein.
"PURCHASE AGREEMENT" means (1) with respect to the Initial Notes issued on
the Issue Date, the Purchase Agreement dated as of June 7, 2002, among the
Company, the Subsidiary Guarantors and the Initial Purchasers and (2) with
respect to each issuance of Initial Additional Notes, the purchase agreement or
underwriting agreement among the Company, and Subsidiary Guarantors party
thereto and the persons purchasing such Initial Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTERED EXCHANGE OFFER" means the offer by the Company, pursuant to the
Registration Rights Agreement, to certain Holders of Initial Notes, to issue and
deliver to such Holders, in exchange for their Initial Notes, a like aggregate
principal amount of Exchange Notes registered under the Securities Act.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S NOTES" means all Initial Notes and any Additional Notes
offered and sold outside the United States in reliance on Regulation S.
"RESALE RESTRICTION TERMINATION DATE" means, with respect to any Note, the
date that is two years (or such other period as may hereafter be provided under
Rule 144(k) under the Securities Act or any successor provision thereto as
permitting the resale by
121
<Page>
non-affiliates of Restricted Securities without restriction) after the later of
the original issue date in respect of such Note and the last date on which the
Company or any Affiliate of the Company was the owner of such Note (or any
Predecessor Note thereto).
"RESTRICTED PERIOD", with respect to any Initial Notes or Initial
Additional Notes, means the period of 40 consecutive days beginning on and
including the later of (a) the day on which such Notes are first offered to
persons other than distributors (as defined in Regulation S under the Securities
Act) in reliance on Regulation S, notice of which day shall be promptly given by
the Company to the Trustee, and (b) the first date on which such Notes are
originally issued.
"RESTRICTED SECURITY" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; PROVIDED, HOWEVER, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted Security.
"RULE 144" means Rule 144 under the Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A NOTES" means all Initial Notes and any Additional Notes offered
and sold to QIBs in reliance on Rule 144A.
"RULE 501" means Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"SHELF REGISTRATION STATEMENT" means a registration statement filed by the
Company in connection with the offer and sale of Initial Notes pursuant to the
Registration Rights Agreement.
1.2 OTHER DEFINITIONS.
Term: Defined in Section:
- ----- -------------------
"Registration Rights Agreement" SECTION 101 of this Indenture
"Initial Notes" SECTION 101 of this Indenture
"Global Note" 2.1(b)
"Note Register" SECTION 305 of this Indenture
"Officer's Certificate" SECTION 101 of this Indenture
"Participants" 2.1(c)
"Paying Agent" SECTION 101 of this Indenture
"Permanent Regulation S Global Note" 2.1(b)
"Regulation S Global Notes" 2.1(b)
"Rule 144A Global Note" 2.1(b)
"Temporary Regulation S Global Note" 2.1(b)
122
<Page>
1.3 SECTION REFERENCES.
All section references are to sections of this Appendix unless otherwise
indicated.
2. THE NOTES.
2.1 FORM AND DATING. (a) The Initial Notes issued on the date hereof
and any Initial Additional Notes will be (i) offered and sold by the Company
pursuant to a Purchase Agreement and (ii) resold, initially only to (1) QIBs in
reliance on Rule 144A, (2) Persons other than U.S. Persons (as defined in
Regulation S) in reliance on Regulation S and, (3) in the case of any Initial
Additional Notes, except as set forth below, IAIs in accordance with Rule 501.
Such Initial Notes and any Initial Additional Notes may thereafter be
transferred to, among others, QIBs and purchasers in reliance on Regulation S.
The restrictions on transfer are set forth in the Private Placement Legend.
(b) GLOBAL NOTES. Rule 144A Notes shall be issued initially in the
form of one or more permanent global Notes in definitive, fully registered
form (collectively, the "RULE 144A GLOBAL NOTES"); Regulation S Notes shall
be issued initially in the form of one or more temporary global Notes
(collectively, the "TEMPORARY REGULATION S GLOBAL NOTES"), in each case
without interest coupons and bearing the Global Notes Legend and Private
Placement Legend, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Notes Custodian, and registered in
the name of the Depositary or a nominee of the Depositary, duly executed by
the Company and authenticated by the Trustee as provided in this Indenture.
Beneficial ownership interests in the Temporary Regulation S Global Note
shall not be exchangeable for interests in the Rule 144A Global Note, a
permanent global Note (the "PERMANENT REGULATION S GLOBAL NOTE" and,
together with the Temporary Regulation S Global Note, the "REGULATION S
GLOBAL NOTES") or any other Note without a Private Placement Legend until
the expiration of the Restricted Period. If any Initial Additional Notes
are IAI Notes offered and sold by the Company or initially resold by an
Initial Purchaser thereof, such IAI Notes shall not be represented by a
Global Note. The Rule 144A Global Notes and the Regulation S Global Notes
are each referred to herein as a "GLOBAL NOTE" and are collectively
referred to herein as "GLOBAL NOTES," PROVIDED, that the term "Global Note"
when used in Sections 2.1(b), 2.1(c), 2.1(d), 2.2(g)(i), 2.2(h)(i) and 2.3
shall also include any Note in global form issued in connection with a
Registered Exchange Offer. The aggregate principal amount of each Global
Note may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee and on the
schedules thereto as hereinafter provided; PROVIDED, HOWEVER, the aggregate
principal amount of Notes outstanding at any time shall be as provided in
SECTION 303 of this Indenture except in accordance
123
<Page>
with SECTION 306 of this Indenture.
(c) BOOK-ENTRY PROVISIONS. This Section 2.1(c) shall apply only to a
Global Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall authenticate and deliver
initially, in accordance with SECTION 303 of this Indenture, one or more Global
Notes that (i) shall be registered in the name of the Depositary for such Global
Notes or nominee of the Depositary and (ii) shall be delivered by the Trustee to
the Depositary or pursuant to the Depositary's instructions or held by the
Trustee as Notes Custodian.
Members of, or participants in, the Depositary ("PARTICIPANTS") shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by the Depositary or by the Trustee as Notes Custodian or under such
Global Note, and the Depositary or its nominee, as Holder, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or its nominee, as
Holder, or impair, solely as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of a holder of a beneficial interest in any Global Note.
(d) CERTIFICATED NOTES.
(i) If any Initial Additional Notes are IAI Notes that are
offered and sold by the Company or initially resold by an Initial
Purchaser to an IAI, such IAI Notes shall be issued only in the form
of Certificated Notes.
(ii) Except as provided in SECTIONS 2.2 and 2.3, owners of
beneficial interests in Global Notes will not be entitled to receive
Certificated Notes.
2.2 TRANSFER AND EXCHANGE. (a) TRANSFER AND EXCHANGE OF CERTIFICATED
NOTES. When any Certificated Note is presented to the Registrar with a request:
(i) to register the transfer of such Certificated Note; or
(ii) to exchange such Certificated Note for an equal principal
amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested;
PROVIDED, HOWEVER, that the Certificated Note surrendered for transfer or
exchange:
124
<Page>
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Trustee; and
(2) in the case of a transfer of any Note that is
required to bear the Private Placement Legend, is accompanied by
the following additional information and documents, as
applicable:
(A) if such Certificated Note is being delivered to the
Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect in accordance with the form set
forth on the reverse of the Note; or
(B) if such Certificated Note is being transferred to
the Company or pursuant to an effective registration
statement, a certification to that effect in accordance
with the form set forth on the reverse of the Note; or
(C) if such Certificated Note is being transferred (w)
pursuant to an exemption from the registration
requirements of the Securities Act under Rule 144, a
certification to that effect in accordance with the form
set forth on the reverse of the Note; (x) to a QIB, upon
the representation of the transferee, in accordance with
the form set forth on the reverse of the Note, that it is
purchasing for its own account or an account with respect
to which it exercises sole investment discretion and that
it and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information
regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such
information and that it is aware that the transferor is
relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule
144A; (y) to a Non-U.S. Person, upon receipt by the
Trustee or its agent of a certificate substantially in
the form set forth in EXHIBIT C from the proposed
transferor and (z) to an IAI, upon receipt by the Trustee
or its agent of a certificate substantially in the form
set forth in EXHIBIT D from the proposed transferee; and,
in each case, if requested
125
<Page>
by the Company or the Trustee, the delivery of an opinion
of counsel, certification and/or other information
satisfactory to each of them as to the compliance with
the restrictions set forth in the Private Placement
Legend.
(b) RESTRICTIONS ON TRANSFER OF A CERTIFICATED NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL NOTE. A Certificated Note may not be exchanged for a
beneficial interest in a Rule 144A Global Note or a Permanent Regulation S
Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Registrar of a Certificated Note, duly endorsed or
accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Trustee, together with:
(i) certification, in the form set forth on the reverse of the Note,
that such Certificated Note is either (A) being transferred to a QIB in
accordance with Rule 144A or (B) is being transferred after expiration of
the Restricted Period by a Person who initially purchased such Note in
reliance on Regulation S to a buyer who elects to hold its interest in such
Note in the form of a beneficial interest in the Permanent Regulation S
Global Security; and
(ii) written instructions directing the Trustee and the Depositary to
make, or to direct the Note Custodian to make, an adjustment on its books
and records with respect to such Rule 144A Global Security (in the case of
a transfer pursuant to clause (b) (i) (A)) or Permanent Regulation S
Security (in the case of a transfer pursuant to clause (b) (i) (B)) to
reflect an increase in the aggregate principal amount of the Securities
represented by the Rule 144A Global Security or Permanent Regulation S
Global Security, as applicable, such instructions to contain information
regarding the Depositary account to be credited with such increase.
then the Trustee shall cancel such Certificated Note and cause, or direct the
Registrar to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the aggregate principal
amount of Notes represented by the Global Note to be increased by the aggregate
principal amount of the Certificated Note to be exchanged and shall credit or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Global Note equal to the principal amount of the
Certificated Note so canceled. If no Global Notes are then outstanding and the
Global Note has not been previously exchanged for Certificated Notes pursuant to
SECTION 2.3, the Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers' Certificate, a new
Global Note in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and exchange
of
126
<Page>
Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of
the Depositary therefor. A transferor of a beneficial interest in a Global
Note shall deliver a written order given in accordance with the
Depositary's procedures containing information regarding the participant
account of the Depositary to be credited with a beneficial interest in such
Global Note or another Global Note and such account shall be credited in
accordance with such order with a beneficial interest in the applicable
Global Note and the account of the Person making the transfer shall be
debited by an amount equal to the beneficial interest in the Global Note
being transferred.
(1) TRANSFERS OF RULE 144A GLOBAL NOTES. The following provisions shall
apply with respect to any proposed transfer of a Rule 144A Global Note that is a
Restricted Security or a beneficial interest therein:
(A) a transfer of a Rule 144A Global Note or a beneficial interest
therein to a QIB shall be made upon the representation of the transferee,
in accordance with the form set forth on the reverse of the Note, that it
is purchasing for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(B) a transfer of a Rule 144A Global Note or a beneficial interest
therein to a Non-U.S. Person shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in EXHIBIT C
from the proposed transferor and, if requested by the Company or the
Trustee, the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(C) a transfer of a Rule 144A Global Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of
a certificate substantially in the form set forth in EXHIBIT D from the
proposed transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them.
(2) TRANSFER OF REGULATION S GLOBAL NOTES. Any proposed transfer of a
Regulation S Global Note shall only be made in accordance with Applicable
Procedures. In addition, the
127
<Page>
following provisions shall apply with respect to any proposed transfer of a
Regulation S Global Note that is required to bear the Private Placement Legend
or that is otherwise a Restricted Security or a beneficial interest therein
prior to the expiration of the Restricted Period:
(A) a transfer of a Regulation S Global Note or a beneficial interest
therein to a QIB shall be made upon the representation of the transferee,
in accordance with the form set forth on the reverse of the Note, that it
is purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;
(B) a transfer of a Regulation S Global Note or a beneficial interest
therein to a Non- U.S. Person shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in EXHIBIT C
hereof from the proposed transferee and, if requested by the Company or the
Trustee, receipt by the Trustee or its agent of an opinion of counsel,
certification and/or other information satisfactory to each of them; and
(C) a transfer of a Regulation S Global Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of
a certificate substantially in the form set forth in EXHIBIT D from the
proposed transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them.
After the expiration of the Restricted Period, interests in the Temporary
Regulation S Global Note may be transferred without requiring certification set
forth in EXHIBIT C, EXHIBIT D or any additional certification. The Trustee and
Registrar shall be entitled to request and receive, and may rely upon
conclusively, a certificate or other written confirmation from the Company as to
the date of expiration of such Restricted Period; and until it receives such
certification or confirmation, the Trustee shall be entitled to presume that
such Restricted Period has not expired.
(i) If the proposed transfer is a transfer of a beneficial interest
in one Global Note to a beneficial interest in another Global Note,
the Registrar shall reflect on its books and records the date and an
increase in the principal
128
<Page>
amount of the Global Note to which such interest is being transferred
in an amount equal to the principal amount of the interest to be so
transferred, and the Registrar also shall reflect on its books and
records the date and a corresponding decrease in the principal amount
of Global Note from which such interest is being transferred.
(ii) Notwithstanding any other provisions of this Appendix (other
than the provisions set forth in SECTION 2.4), a Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(iii) In the event that a Global Note is exchanged for Certificated
Notes pursuant to this SECTION 2.3 prior to the consummation of the
Registered Exchange Offer or the effectiveness of the Shelf
Registration Statement with respect to such Notes, such Notes may be
exchanged only in accordance with this paragraph, such procedures as
are substantially consistent with the provisions of this SECTION 2.3
(including the certification requirements set forth on the reverse of
the Notes and if the Company or the Trustee so request, Opinions of
Counsel and/or other information satisfactory to them as to the
compliance with the restrictions referred to in the Private Placement
Legend) and such other procedures as may from time to time be adopted
by the Company.
(d) Prior to the expiration of the Restricted Period, interests in
the Temporary Regulation S Global Note may only be held through Euroclear
or Clearstream. Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Note shall be transferable
in accordance with applicable law and the other terms of this Indenture.
(e) LEGENDS. (i) Except as permitted by the following paragraphs
(ii), (iii), (iv) or (v), each Note certificate evidencing the Global Notes
and the Certificated Notes (and all Notes issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following
form (each defined term in the legend being defined as such for purposes of
the legend only):
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE
OFFERED,
129
<Page>
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO IESI OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO IESI THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO IESI) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
130
<Page>
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE FOR THE NOTES CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING."
(ii) Upon any sale or transfer of a Restricted Security that
is a Certificated Note, the Registrar shall permit the Holder thereof
to exchange such Restricted Security for a Certificated Note that does
not bear the Private Placement Legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Note if the
Holder (x) certifies in writing to the Note Registrar that its request
for such exchange was made in reliance on Rule 144(k) (such
certification to be in the form set forth on the reverse of the Note)
and (y) if the Company so requests, delivers an opinion of counsel or
other information satisfactory to it as to the compliance with the
requirements of Rule 144(k).
(iii) After a transfer of any Initial Notes or Initial
Additional Notes during the period of the effectiveness of, and
pursuant to, a Shelf Registration Statement with respect to such
Initial Notes, all requirements pertaining to the Private Placement
Legend on such Initial Notes shall cease to apply and the requirements
that any such Initial Notes be issued in global form shall continue to
apply.
(iv) (a) Upon the consummation of a Registered Exchange Offer
with respect to the Initial Notes pursuant to which Holders of such
Initial Notes are offered Exchange Notes in exchange for their Initial
Notes, all requirements pertaining to Initial Notes that Initial Notes
be issued in global form shall continue to apply, and Exchange Notes
in global form without the Private Placement Legend shall be available
to Holders that exchange such Initial Notes in such Registered
Exchange Offer.
(b) Upon the consummation of a Private Exchange with
respect to the Initial Notes or Initial Additional Notes all
requirements pertaining to such Initial Notes or Initial Additional
Notes that Initial Notes or Initial Additional Notes issued to certain
Holders be issued in global form will still apply with respect to
Holders of such Initial Notes or Initial Additional Notes that do not
exchange their Initial Notes or Initial Additional Notes, and Private
Exchange Notes in global form with the Global Notes Legend and the
Private Placement Legend will be available to Holders that exchange
such Initial Notes or Initial Additional Notes in such Private
Exchange.
131
<Page>
(v) Upon a sale or transfer after the expiration of the
Restricted Period of any Initial Notes or Initial Additional Notes
acquired pursuant to Regulation S, all requirements that such Initial
Notes or Initial Additional Notes bear the Private Placement Legend
shall cease to apply and the requirements requiring any such Initial
Notes or Initial Additional Notes be issued in global form shall
continue to apply.
(vi) Each Certificated Note shall bear the following
additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND THE COMPANY SUCH CERTIFICATES, OPINIONS OF COUNSEL AND/OR OTHER
INFORMATION AS SUCH THE REGISTRAR OR THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH APPLICABLE RESTRICTIONS."
(vii) Each Global Note shall bear the following additional
legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(f) CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE. At such time as all
beneficial interests in a Global Note have either been exchanged for
Certificated Notes, transferred, redeemed, repurchased or canceled, such
Global Note shall be
132
<Page>
returned by the Depositary to the Trustee for cancellation or retained and
cancelled and returned to the Company by the Trustee. At any time prior to
such cancellation, if any beneficial interest in a Global Note is exchanged
for Certificated Notes, transferred in exchange for an interest in another
Global Note, redeemed, repurchased or canceled, the principal amount of
Notes represented by such Global Note shall be reduced and an adjustment
shall be made on the books and records of the Registrar with respect to
such Global Note, by the Trustee or the Notes Custodian, to reflect such
reduction.
(g) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES.
(i) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate, Certificated Notes and Global Notes
at the Registrar's request.
(ii) All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
(h) NO OBLIGATION OF THE TRUSTEE OR THE COMPANY.
(i) The Trustee and the Company shall have no responsibility
or obligation to any beneficial owner of a Global Note, a member of or
a participant in the Depositary, or any other Person, with respect to
the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Notes or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary or
its nominee, as Holder) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with
respect to such Notes. All notices and communications to be given to
the Holders and all payments to be made to Holders under the Notes
shall be given or made only to the registered Holders (which shall be
the Depositary or its nominee in the case of a Global Note). The
rights of beneficial owners in any Global Note shall be exercised only
through the Depositary subject to the applicable rules and procedures
of the Depositary. The Trustee and the Company may rely and shall be
fully protected in relying upon information furnished by the
Depositary with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any
133
<Page>
interest in any Note (including any transfers between or among
Depositary participants, members or beneficial owners in any Global
Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so
if and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
2.3 CERTIFICATED NOTES.
(a) A Global Note deposited with the Depositary or with the Trustee
as Notes Custodian pursuant to SECTION 2.1 or issued in connection with a
Registered Exchange Offer shall be transferred to the beneficial owners
thereof in the form of Certificated Notes in an aggregate principal amount
equal to the principal amount of such Global Note, in exchange for such
Global Note, only if such transfer complies with SECTION 2.2 and SECTION
305 of the Indenture and (i) the Depositary notifies the Company that it is
unwilling or unable to continue as a Depositary for such Global Note or if
at any time the Depositary ceases to be a "clearing agency" registered
under the Exchange Act, and a successor depositary is not appointed by the
Company within 90 days of such notice or after the Company becomes aware of
such cessation, (ii) an Event of Default has occurred and is continuing and
the Registrar has received a request from the Depositary to issue the form
of Certificated Notes in registered form in substantially the form set
forth in Exhibit A or (iii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Certificated
Notes under this Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this SECTION 2.3 shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in
part, without charge except pursuant to SECTION 2.2(g)(i), and the Trustee
shall authenticate and deliver, upon such transfer of each portion of such
Global Note, an equal aggregate principal amount of Certificated Notes in
denominations of $1,000 and any integral multiple thereof. Certificated
Notes representing any portion of a Global Note transferred pursuant to
this Section shall be executed, authenticated and delivered only in
denominations of $1,000 and any integral multiple thereof and registered in
such names as the Depositary shall direct. Any certificated Initial Note in
the form of a Certificated Note delivered in exchange for an interest in
the Global Note shall, except as otherwise provided by SECTION 2.2(e), bear
the Private Placement Legend.
(c) Subject to the provisions of SECTION 2.3(b), the registered
Holder of a Global Note may grant proxies and otherwise authorize any
Person, including
134
<Page>
Participants and Persons that may hold interests through Participants, to
take any action which a Holder is entitled to take under this Indenture or
the Notes.
The Company or the Trustee, in the discretion of either of them, may treat
as the act of a Holder any instrument or writing of any Person that is
identified by the Depositary as the owner of a beneficial interest in a Global
Note, provided that the fact and date of the execution of such instrument or
writing is proved in accordance with SECTION 108 of this Indenture.
(d) In the event of the occurrence of any of the events specified in
SECTION 2.3(a)(i), (ii) or (iii), the Company will promptly make available
to the Trustee a reasonable supply of Certificated Notes in fully
registered form without interest coupons.
2.4 GENERAL PROVISIONS.
By its acceptance of any Note bearing the Private Placement Legend, the
Global Notes Legend or the Certificated Notes Legend, each Holder of such a Note
acknowledges such restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend, the Global Notes Legend and the
Certificated Notes Legend, as applicable, and agrees that it will transfer such
Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to this Appendix (including all Notes received
for transfer pursuant to this Appendix). The Company shall have the right to
require the Registrar to deliver to the Company, at the Company's expense,
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
In connection with any transfer of Notes, the Trustee, the Registrar and
the Company shall be entitled to receive, shall be under no duty to inquire
into, may conclusively presume the correctness of, and shall be fully protected
in relying upon the certificate, opinions and other information referred to
herein (or in the forms provided herein, attached hereto or to the Notes, or
otherwise) received from any Holder and any transferee of any Note regarding the
validity, legality and due authorization of any such transfer, the eligibility
of the transferee to receive such Note and any other facts and circumstances
related to such transfer.
Neither the Trustee nor the Note Registrar shall be under any obligation or
duty to determine or inquire as to compliance with the Securities Act (including
any rules or regulations promulgated thereunder) or any state securities laws
that may be applicable in connection with or with respect to any transfer of any
interest in any Note (including any
135
<Page>
transfers between or among beneficial owners of interests in any Global Note) or
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture with respect to transfers of interests in
any security (including any transfers between or among beneficial owners of
interests in any Global Note); except that the Trustee shall be under a duty to
require delivery of such certificates and other documentation, if any, as are
expressly required in the applicable circumstance, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the same to
determine substantial compliance on their face with the express requirements
hereof. The Trustee shall have no responsibility for (i) the actions or
omissions of the Depositary, or for the accuracy of the books or records of the
Depositary and (ii) transfers, of which it has no knowledge, between or among
beneficial owners of interests in the same Global Note.
136
EXHIBIT A
FORM OF NOTE
[LEGEND(S)]1
IESI CORPORATION
10 1/4 % SENIOR SUBORDINATED NOTES DUE 2012
No. [______] CUSIP No. [____________]
$--------
IESI CORPORATION, a Delaware corporation (and its successors and
assigns) (the "Company," which term shall have the meaning ascribed thereto in
the Indenture hereinafter referred to) promises to pay to [NAME OF REGISTERED
HOLDER], or registered assigns, the principal sum of $[AMOUNT] United States
Dollars on June 15, 2012 [(or such lesser or greater amounts as shall be
outstanding hereunder from time to time in accordance with Sections 2.1 and 2.2
of Appendix A to the Indenture referred to on the reverse hereof)]2.
Interest Payment Dates: June 15 and December 15.
Record Dates for payment of interest: June 1 and December 1.
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
IESI CORPORATION
By:______________________________
Name:
Title:
Attest:
- ---------------------
- ---------------------
1 Insert legend or legends as applicable, per Section 2.1(e) of the Appendix to
the Indenture.
2 Include only if the Note is issued in global form.
137
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
THE BANK OF NEW YORK, as Trustee
By:______________________________
Authorized Signatory
Dated: ________________________
138
[FORM OF REVERSE SIDE OF NOTE]
10 1/4% Senior Subordinated Note due 2012
1. INTEREST
The Company promises to pay interest semi-annually on June 15 and
December 15 in each year, commencing December 15, 2002 at the rate of 10 1/4%
per annum [; provided, however, that if a Registration Default (as defined in
the Registration Rights Agreement) occurs, additional interest will accrue on
this Note at a rate of 0.25% per annum (increasing by an additional 0.25% per
annum after each subsequent 90-day period that occurs after the date on which
such Registration Default occurs up to a maximum additional interest rate of
1.50% per annum) from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured, ]3 [, except that interest accrued on this Note for periods
prior to the date on which the Initial Note was surrendered in exchange for this
Note will accrue at the rate or rates borne by such Initial Note from time to
time during such periods]4, until the Principal Amount is paid or made available
for payment. [Interest on this Note will accrue from the most recent date to
which interest on this Note or any of its Predecessor Notes has been paid or
duly provided for or, if no interest has been paid, from the Issue Date.]5
[Interest on this Note will accrue from the most recent date to which interest
on this Note or any of its Predecessor Notes has been paid or duly provided for
or, if no such interest has been paid, from [_________, ____]6.]7 Interest on
the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to below,
be paid to the Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the June 1 or December 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is
- -----------------------
3 Include only for Initial Note, when required by the Registration Rights
Agreement. For an Initial Additional Note, add any similar provision, if
any, as may be agreed by the Company with respect to additional interest
on such Initial Additional Note.
4 Include only for Exchange Note.
5 Include only for Original Notes.
6 Insert last date interest was paid on Original Notes or, if no interest
has been paid, the Issue Date.
7 Include only for Additional Notes (and Exchange Notes issued in the
exchange therefor).
139
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not more than 15 days nor less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
2. METHOD OF PAYMENT
If a Holder has given wire transfer instructions to the Company, the
Company will make all principal, premium, if any, and interest payments on such
Holder's Notes in accordance with those instructions. All other payments on the
Notes will be made at the office or agency of the Paying Agent and Registrar
within the City and State of New York (the "PLACE OF PAYMENT") unless the
Company elects to make interest payments by check mailed to the Holders at their
addresses set forth in the Note Register.
3. PAYING AGENT AND REGISTRAR
Initially, The Bank of New York, a New York banking corporation, the
Trustee, will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any domestically incorporated subsidiary of the Company may act as Paying
Agent, Registrar or co-registrar.
4. INDENTURE
This Note is one of the duly authorized issue of 10 1/4% Senior
Subordinated Notes due 2012 of the Company (herein called the "Notes"), issued
under an Indenture, dated as of June 12, 2002, (as amended, supplemented or
otherwise modified from time to time, the "Indenture," which term shall have the
meanings assigned to it in such instrument), among IESI Corporation, the
Subsidiary Guarantors (as defined in the Indenture) and The Bank of New York as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture) and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Subsidiary Guarantors, any other obligor upon
this Note, the Trustee and the Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered. The terms of the
Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended, as in
effect from time to time (the "TIA"). The Notes are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of such
terms. Additional Notes may be issued under the Indenture which may vote as a
class with the Notes and otherwise be treated as Notes for purposes of the
Indenture.
140
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Note is entitled to the benefits of certain senior subordinated
Subsidiary Guarantees by the Subsidiary Guarantors (and future Subsidiary
Guarantors) made for the benefit of the Holders. Reference is made to ARTICLE 13
of the Indenture for terms relating to such Subsidiary Guarantees, including the
release, termination and discharge thereof. Neither the Company nor any
Subsidiary Guarantor shall be required to make any notation on this Note to
reflect any Subsidiary Guarantee or any such release, termination or discharge.
5. OPTIONAL REDEMPTION
(a) Except as set forth in paragraph (b) below, the Company shall not
have the option to redeem any Notes prior to June 15, 2007. Thereafter, the
Company shall have the option to redeem the Notes, in whole or in part, upon not
less than 30 nor more than 60 days' prior notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest, if any, thereon to the applicable redemption date (subject to
SECTION 307 of the Indenture and the right of Holders of record on the relevant
record date to receive interest due on the relevant Interest Payment Date), if
redeemed during the twelve-month period beginning on June 15 of the years
indicated below:
YEAR REDEMPTION PRICE
- ----- ----------------
2007 .................................................... 105.125%
2008 .................................................... 103.417%
2009 .................................................... 101.708%
2010 and thereafter ..................................... 100.000%
(b) Notwithstanding the foregoing, at any time prior to June 15, 2005,
the Company may redeem up to 35% of the aggregate principal amount of Notes
issued under the Indenture at a redemption price of 110.250% of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon, if any, to
the redemption date (subject to SECTION 307 of the Indenture and the right of
Holders of record on the relevant record date to receive interest due on the
relevant Interest Payment Date), with the net cash proceeds of one or more
Public Equity Offerings; PROVIDED that (1) at least 65% of the aggregate
principal amount of Notes issued under the Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held by the
Company and its Subsidiaries); and (2) such redemption shall occur within 60
days of the date of the closing of such Public Equity Offering.
6. NO SINKING FUND
The Notes will not be entitled to the benefit of a sinking fund.
141
7. SUBORDINATION
The Notes are subordinated to Senior Indebtedness, as defined in the
Indenture. To the extent provided in the Indenture, Senior Indebtedness must be
paid before the Notes may be paid. In addition, the Subsidiary Guarantees are
subordinated to Senior Indebtedness of the Company and of each Subsidiary
Guarantor, as applicable. To the extent provided in the Indenture, Senior
Indebtedness must be paid before any Subsidiary Guarantee may be paid. The
Company and each Subsidiary Guarantor agrees, and each Holder by accepting a
Note agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give such provisions effect and appoints the Trustee
as attorney-in-fact for such purposes.
8. PUT PROVISIONS
The Indenture provides that, upon the occurrence of a Change of
Control, each Holder will have the right to require the Company to repurchase
all or any part (in integral multiples of $1,000) of such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of such purchase (subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date). The Company will not be required to
make a Change of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in the Indenture applicable to a
Change of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
Under certain circumstances as set forth in the Indenture, the Company
will be required to offer to purchase Notes with the Excess Proceeds from
certain Asset Sales.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form without coupons in denominations of
$1,000 and whole multiples of $1,000. A Holder may transfer or exchange Notes in
accordance with the Indenture and subject to certain limitations set forth
therein. No service charge shall be made for any transfer or exchange of Notes,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith, except
that no such payment shall be required in connection with an exchange not
involving any transfer. The Company shall not be required (I) to issue, transfer
or exchange any Note during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption (or purchase) of
Notes selected for redemption (or purchase) under SECTION 1004 of the Indenture
and ending at the close of business on the day
142
of such mailing, or (II) to transfer or exchange any Note so selected for
redemption (or purchase) in whole or in part.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY
The Trustee shall pay to the Company upon a Company Request any money
held in trust by it for the payment of principal (and premium, if any) or
interest that remains unclaimed for two years. After payment to the Company,
Holders entitled to money must look to the Company for payment as general
creditors and all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or non-callable Government Securities for the
payment of principal of, premium (if any) and interest on the Notes to
redemption or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions, (i) the Indenture may be amended with
the consent of the Holders of a majority in principal amount of the Notes then
outstanding and (ii) any past default or compliance with any provisions may be
waived with the consent of the Holders of a majority in principal amount of the
Notes then outstanding (including in each case, consents obtained in connection
with a tender offer or exchange offer for Notes). In certain instances provided
in the Indenture, the Indenture may be amended without the consent of any
Holder.
14. DEFAULTS AND REMEDIES
If an Event of Default with respect to the Notes occurs and is
continuing, the Notes may be declared due and payable immediately in the manner
and with the effect provided in the Indenture.
143
15. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator, member or stockholder, as
such, of the Company or any Subsidiary Guarantor shall have any liability for
any obligation of the Company or any Subsidiary Guarantor on the Notes under the
Indenture, the Notes or any Subsidiary Guarantee, or for any claim based on, in
respect of, or by reason of, any such obligation or its creation. Each Holder of
Notes, by accepting the Notes, waives and releases all such liability. This
waiver and release are part of the consideration for issuance of the Notes.
16. GOVERNING LAW.
-------------
THE INDENTURE AND THE NOTES AND SUBSIDIARY GUARANTEES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE
TRUSTEE, THE COMPANY, EACH 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 INDENTURE OR THE NOTES.
EACH OF THE COMPANY, EACH 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 INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
17. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
144
19. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed hereon.
20. LEGAL HOLIDAYS
In any case where any Interest Payment Date, any date fixed for
redemption pursuant to the Indenture, or Stated Maturity of any Note shall not
be a Business Day, then (notwithstanding any other provision of the Indenture or
of the Notes) payment of interest or principal and premium (if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date or redemption
date, or at the Stated Maturity and no interest shall accrue for the intervening
period.
145
EXHIBIT A
[FORM OF TRANSFER NOTICE]
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
[[Check One]
[ ] (a)_this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by Rule
144A thereunder.
OR
[ ] (b)_this Note is being transferred other than in accordance with
(A) above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Note
Registrar shall not be obligated to register this Note in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.2 of Appendix A to
the Indenture shall have been satisfied.]8
Date: _________________
---------------------------
NOTICE: The signature to
this assignment must
correspond with the name as
written upon the face of
the within-mentioned
instrument in every
particular, without
alteration or any change
whatsoever.
Signature Guarantee: ____________________________
- -------------------------
1 Include only for an Initial Note or an Initial Additional Note that bears
the Private Placement Legend, in accordance with Appendix A to the Indenture.
146
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
[TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: __________________
----------------------------------
NOTICE: To be executed by an
executive officer]2
2 Include only for an Initial Note or an Initial Additional Note that bears
the Private Placement Legend, in accordance with Appendix A to the Indenture.
147
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 410 or 414 of the Indenture, check the appropriate box
below:
[ ] Section 410 [ ] Section 414
If you want to elect to have only part of this Note purchased by the
Company pursuant to the section of the Indenture checked above, state the amount
(in principal amount):
$
Date: __________________ Signed: ___________________________
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee: _______________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
148
[SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
<Table>
<Caption>
Amount of Amount of Principal amount
decreases in increases in of this Global Signature of
Principal Amount Principal Amount Note following authorized signatory
of this Global of this Global such decreases or of Trustee or Notes
Date of Exchange Note Note Increases Custodian]3
------------------ --------------- ---------------- ----------------- ----------------------
</Table>
- ------------------------
3 To be included in Notes issued in global form.
149
<Page>
Exhibit B
Form of Supplemental Indenture in Respect of Subsidiary Guarantee
SUPPLEMENTAL INDENTURE, dated as of [_________] (this "SUPPLEMENTAL
INDENTURE"), among [name of [New Note Subsidiary Guarantor[s]] (the "NEW
SUBSIDIARY GUARANTOR[S]"), IESI Corporation, a Delaware corporation (together
with its successors and assigns, the "COMPANY"), the then existing Note
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, dated as of June__, 2002, as
amended (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 Note Subsidiary
Guarantor[s] shall guarantee the Notes pursuant to [a] Subsidiary Guarantee[s]
on the terms and conditions set forth herein and in ARTICLE 13 of the Indenture;
WHEREAS, [the][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 [the] [such] New Subsidiary Guarantor's access
to working capital through the Company's access to revolving credit borrowings
under the Senior Credit Agreement; 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;
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[s], the Company, the Existing Subsidiary Guarantors and the
Trustee mutually covenant and agree for the benefit of the Holders of the Notes
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
150
<Page>
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] [Each] New Subsidiary
Guarantor hereby agree[s], jointly and severally with [all] [any] other New
Subsidiary Guarantor[s] [and] all Existing Subsidiary Guarantors, fully and
unconditionally, to guarantee the Guaranteed Obligations 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]
[each] New Subsidiary Guarantor is subject to the subordination provisions
of the Indenture.
3. TERMINATION, RELEASE AND DISCHARGE. [The] [Each] New Subsidiary
Guarantor's Subsidiary Guarantee shall terminate and be of no further force
or effect, and [the] [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, other than the Holders and the
Trustee, any legal or equitable right, remedy or claim under or in respect
of [the] [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, [THE] [EACH] 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 INDENTURE OR THE NOTES.
EACH OF THE COMPANY, [THE] [EACH] SUBSIDIARY GUARANTOR, ANY OTHER OBLIGOR
IN RESPECT OF THE NOTES AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY
151
<Page>
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
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.
152
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
as New Subsidiary Guarantor
By:
Name:
Title:
IESI CORPORATION
By:
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
Name:
Title:
153
<Page>
Exhibit C
FORM OF REGULATION S CERTIFICATE
REGULATION S CERTIFICATE
IESI CORPORATION
c/o The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
Re: IESI CORPORATION (the "COMPANY")
10 1/4% Senior Subordinated Notes
due 2012 (the "NOTES")
Ladies and Gentlemen:
In connection with our proposed sale of $_____ aggregate principal amount
of Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S ("REGULATION S") under the Securities Act of 1933,
as amended (the "Securities Act"), and accordingly, we hereby certify as
follows:
1. The offer of the Notes was not made to a person in the United States
(unless such person or the account held by it for which it is acting is excluded
from the definition of "U.S. person" pursuant to Rule 902(k) of Regulation S
under the circumstances described in Rule 902(h)(3) of Regulation S) or
specifically targeted at an identifiable group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the buyer was
outside the United States or we and any person acting on our behalf reasonably
believed that the buyer was outside the United States or (b) the transaction was
executed in, on or through the facilities of a designated offshore securities
market, and neither we nor any person acting on our behalf knows that the
transaction was pre-arranged with a buyer in the United States.
3. No directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of
Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession or other
fee or remuneration in respect of the Notes, and the proposed transfer takes
place before the
154
<Page>
expiration of the Restricted Period, as defined in the Indenture, dated as of
June 12, 2002, as supplemented to date, among the Company, the Subsidiary
Guarantors party thereto and the Trustee, or we are an officer or director of
the Company or a distributor, we certify that the proposed transfer is being
made in accordance with the provisions of Rules 903 and 904 of Regulation S or
Rule 144.
6. We have advised the transferee of the transfer restrictions applicable
to the Notes.
[7. We certify that the interest proposed to be transferred will be held
immediately upon transfer through Euroclear or Clearstream.](1)
You, the Company and counsel for the Company are entitled to rely upon this
Certificate and are irrevocably authorized to produce this Certificate or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours
[NAME OF SELLER]
By:
Name:
Title:
Address:
Date of this Certificate:_________________, 20__
- ----------
(1) Include this representation in the case of a transfer prior to the
expiration of the Restricted Period.
155
<Page>
Exhibit 1
FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
IESI CORPORATION
c/o The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
Re: IESI CORPORATION (the "COMPANY")
10 1/4% Senior Subordinated Notes
DUE 2012
Ladies and Gentlemen:
This letter relates to $___________ principal amount of Notes represented
by the offshore global note certificate (the "REGULATION S GLOBAL NOTE").
Pursuant to Section 313(4) of the Indenture dated as of June 12, 2002 relating
to the Notes (the "INDENTURE"), we hereby certify that (1) we are the beneficial
owner of such principal amount of Notes represented by the Regulation S Global
Note and (2) we are either (i) a Non-U.S. Person to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S ("REGULATION S")
promulgated under the Securities Act of 1933, as amended (the "ACT") or (ii) a
U.S. Person who purchased securities in a transaction that did not require
registration under the Act. Accordingly, you are hereby requested to issue a
Regulation S Certificated Note representing the undersigned's interest in the
principal amount of Notes represented by the Regulation S Global Note, all in
the manner provided by the Indenture.
You, the Company and counsel for the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours
[Name of Holder]
By:
Authorized Signature
156
<Page>
Exhibit D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
[Date]
IESI Corporation
c/o The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $_________ principal
amount of the 10 1/4% Senior Subordinated Notes due 2012 (the "Notes") of IESI
Corporation (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:
-------------------------------------------
Address:
----------------------------------------
Taxpayer ID Number:
-----------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor", within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
purchasing for our own account or for the account of such an institutional
accredited investor at least $250,000 principal amount of the notes, and we are
acquiring the notes not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act. We have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the notes, and we invest in or purchase
securities similar to the notes in the normal course of our business. We, and
any accounts for which we are acting, are each able to bear the economic risk of
our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes or any
157
<Page>
predecessor thereto, which we refer to as the resale restriction termination
date, only (a) to the Company or its subsidiaries, (b) pursuant to a
registration statement that has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
investor, or QIB, under Rule 144A that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur outside the
United States within the meaning of Regulation S under the Securities Act, (e)
to an institutional "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that is purchasing for its own account
or for the account of such an institutional accredited investor, in each case in
a minimum principal amount of Notes of $250,000 or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the resale restriction termination date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above
prior to the resale restriction termination date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the resale
restriction termination date of the Notes pursuant to clauses (d), (e) or (f)
above to require the delivery of an opinion of counsel, certifications and/or
other information satisfactory to the Company and the Trustee.
TRANSFEREE:
BY:
158