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EXHIBIT 3
TRUST INDENTURE
BETWEEN
WCA SHILOH LANDFILL, L.L.C.
AND
REGIONS BANK, MONTGOMERY, ALABAMA
AS TRUSTEE
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SECURING:
$5,000,000
SENIOR SECURED BONDS
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DATED AS OF
, 2000
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TABLE OF CONTENTS
PAGE
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GRANTING CLAUSES..................................................................................................1
ARTICLE I. DEFINITIONS..........................................................................................3
SECTION 1.1. Definitions............................................................................3
SECTION 1.2. Interpretation.........................................................................7
SECTION 1.3. Captions and Headings..................................................................8
ARTICLE II. AUTHORIZATION AND TERMS OF SENIOR BONDS..............................................................9
SECTION 2.1. Authorized Amount of Senior Bonds......................................................9
SECTION 2.2. Issuance of Senior Bonds...............................................................9
SECTION 2.3. Maturity and Interest..................................................................9
SECTION 2.4. Delivery of the Senior Bonds...........................................................9
SECTION 2.5. Form of Senior Bonds..................................................................10
SECTION 2.6. Execution and Authentication of Senior Bonds..........................................10
SECTION 2.7. Source of Payment of Senior Bonds.....................................................10
SECTION 2.8. Payment and Ownership of Senior Bonds.................................................10
SECTION 2.9. Transfer and Exchange of Senior Bonds.................................................11
SECTION 2.10. Mutilated, Lost, Wrongfully Taken or Destroyed Senior Bonds...........................12
SECTION 2.11. Cancellation of Senior Bonds..........................................................13
ARTICLE III. REDEMPTION OF SENIOR BONDS..........................................................................14
SECTION 3.1. Terms of Redemption of Senior Bonds...................................................14
SECTION 3.2. Issuer's Election to Redeem...........................................................16
SECTION 3.3. Notice of Redemption..................................................................16
SECTION 3.4. Payment of Redeemed Senior Bonds......................................................17
ARTICLE IV. PROVISIONS AS TO FUNDS AND PAYMENTS.................................................................19
SECTION 4.1. Senior Bond Fund......................................................................19
SECTION 4.2. Investment of Senior Bond Fund.......................................................19
SECTION 4.3. Moneys to be Held in Trust............................................................20
SECTION 4.4. Nonpresentment of Senior Bonds........................................................20
SECTION 4.5. Repayment to the Issuer from the Senior Bond Fund.....................................20
ARTICLE V. THE TRUSTEE.........................................................................................21
SECTION 5.1. Acceptance of Trust...................................................................21
SECTION 5.2. Fees, Charges and Expenses of Trustee, Registrar and Paying Agents....................23
SECTION 5.3. Intervention by Trustee...............................................................24
SECTION 5.4. Successor Trustee.....................................................................24
SECTION 5.5. Appointment of Co-Trustee.............................................................24
SECTION 5.6. Resignation by the Trustee............................................................25
SECTION 5.7. Removal of the Trustee................................................................25
SECTION 5.8. Appointment of Successor Trustee......................................................25
SECTION 5.9. Adoption of Authentication............................................................27
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SECTION 5.10. Registrars............................................................................27
SECTION 5.11. Designation and Succession of Paying Agents...........................................28
SECTION 5.12. Dealing in Senior Bonds...............................................................29
SECTION 5.13. Representations and Covenants of Trustee..............................................29
ARTICLE VI. DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND HOLDERS..............................................30
SECTION 6.1. Defaults; Events of Default...........................................................30
SECTION 6.2. Notice of Default.....................................................................30
SECTION 6.3. Acceleration..........................................................................31
SECTION 6.4. Other Remedies; Rights of Holders.....................................................31
SECTION 6.5. Appointment of Receivers..............................................................32
SECTION 6.6. Right of Holders to Direct Proceedings................................................32
SECTION 6.7. Application of Moneys.................................................................32
SECTION 6.8. Remedies Vested in Trustee............................................................33
SECTION 6.9. Rights and Remedies of Holders........................................................33
SECTION 6.10. Termination of Proceedings............................................................34
SECTION 6.11. Waivers of Events of Default..........................................................34
ARTICLE VII. SUPPLEMENTAL INDENTURES.............................................................................36
SECTION 7.1. Supplemental Indentures Generally.....................................................36
SECTION 7.2. Supplemental Indentures Not Requiring Consent of Holders..............................36
SECTION 7.3. Indentures Requiring Consent of Holders...............................................37
SECTION 7.4. Authorization to Trustee; Effect of Supplement........................................38
SECTION 7.5. Opinion of Counsel....................................................................39
SECTION 7.6. Modification by Unanimous Consent.....................................................39
ARTICLE VIII. DEFEASANCE..........................................................................................40
SECTION 8.1. Release of Indenture..................................................................40
SECTION 8.2. Payment and Discharge of Senior Bonds.................................................40
SECTION 8.3. Survival of Certain Provisions........................................................41
ARTICLE IX. COVENANTS AND AGREEMENTS OF THE ISSUER..............................................................42
SECTION 9.1. Covenants and Agreements of the Issuer................................................42
SECTION 9.2. Observance and Performance of Covenants, Authority and Actions........................42
SECTION 9.3. Enforcement of Issuer's Obligations...................................................43
SECTION 9.4. Priority of Pledge....................................................................43
SECTION 9.5. Maintenance, Repairs, Changes, Alterations, Taxes and Other Charges...................43
SECTION 9.6. Sale of Landfill Prohibited Except Under Certain Conditions...........................44
SECTION 9.7. Freedom of Landfill from Prior Liens..................................................44
SECTION 9.8. Payment of Trustee Charges............................................................44
SECTION 9.9. To Record and to Grant Further Assurances.............................................44
SECTION 9.10. Insurance Required....................................................................45
SECTION 9.11. Maintenance of Corporate Existence; Consolidation or Merger...........................46
SECTION 9.12. Disposition of Condemnation Award.....................................................47
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ARTICLE X. MEETINGS OF HOLDERS.................................................................................48
SECTION 10.1. Purposes of Meetings..................................................................48
SECTION 10.2. Call of Meetings......................................................................48
SECTION 10.3. Voting................................................................................48
SECTION 10.4. Meetings..............................................................................49
SECTION 10.5. Miscellaneous.........................................................................49
ARTICLE XI. MISCELLANEOUS.......................................................................................50
SECTION 11.1. Limitation of Rights..................................................................50
SECTION 11.2. Severability..........................................................................50
SECTION 11.3. Notices...............................................................................50
SECTION 11.4. Suspension of Mail....................................................................51
SECTION 11.5. Payments Due on Saturdays, Sundays and Holidays.......................................51
SECTION 11.6. Instruments of Holders................................................................51
SECTION 11.7. Priority of this Indenture............................................................52
SECTION 11.8. Extent of Covenants; No Personal Liability............................................52
SECTION 11.9. Binding Effect........................................................................52
SECTION 11.10. Counterparts..........................................................................52
SECTION 11.11. Governing Law.........................................................................52
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TRUST INDENTURE
THIS TRUST INDENTURE (the "Indenture") dated as of March ___, 2000, by
and between WCA SHILOH LANDFILL, L.L.C., a Delaware limited liability company
(the "Issuer"), and REGIONS BANK, Montgomery, Alabama, a [STATE BANKING
CORPORATION,] duly organized, existing and authorized to accept and execute
trusts of the character herein set out under and by virtue of the laws of the
State of Alabama, with a corporate trust office located in Montgomery, Alabama
as trustee (the "Trustee");
W I T N E S S E T H
WHEREAS, by virtue of its authority set forth in its articles of
incorporation and bylaws, and by action duly taken by its board of directors,
the Issuer is empowered to issue the bonds hereinafter described; and
WHEREAS, the Issuer proposes to issue its Senior Secured Bonds (the
"Senior Bonds"), in the aggregate principal amount of $5,000,000 for the
purpose of financing the general operating expenses and working capital needs
of Shiloh Landfill, a construction and demolition-type landfill located near
Travelers Rest, South Carolina (the "Landfill"), as well as for other
authorized corporate purposes; and
WHEREAS, the execution and delivery of this Indenture and the issuance
of the bonds under this Indenture pursuant to the aforesaid authority have been
in all respects duly and validly authorized by a resolution adopted by the
Board of Directors of the Issuer; and
WHEREAS, the Issuer has contracted for the private placement of the
Senior Bonds to be issued in the aggregate principal amount of $5,000,000; and
WHEREAS, the Senior Bonds will be secured by this Indenture, and the
Issuer is authorized to execute and deliver this Indenture and to do or cause
to be done all acts provided or required herein and to issue the Senior Bonds
in the form as provided herein with such omissions and insertions as permitted
or required by this Indenture; and
WHEREAS, all things necessary to make the Senior Bonds, when
authenticated by the Trustee and issued as provided in this Indenture, the
valid, binding and legal obligations of the Issuer, and to constitute this
Indenture a valid assignment and pledge of the amounts assigned and pledged to
the payment of the principal of, and premium, if any, and interest on, the
Senior Bonds have been done and performed, and the creation, execution and
delivery of this Indenture, and the creation, execution and issuance of the
Senior Bonds, subject to the terms hereof, have in all respects been duly
authorized; and
WHEREAS, the Trustee has accepted the trusts created by this
Indenture, and in evidence thereof, has joined in the execution hereof;
GRANTING CLAUSES
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that to secure the payment
of Bond Service Charges on the Senior Bonds according to their true intent and
meaning, to secure
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the performance and observance of all of the covenants, agreements, obligations
and conditions contained therein and herein, and to declare the terms and
conditions upon and subject to which the Senior Bonds are and are intended to
be issued, held, secured and enforced, and in consideration of the premises and
the acceptance by the Trustee of the trusts created herein and of the purchase
and acceptance of the Senior Bonds by the Holders, and for other good and
valuable consideration, the receipt of which is acknowledged, the Issuer has
executed and delivered this Indenture and absolutely assigns hereby to the
Trustee, and to its successors in trust, and its and their assigns, all right,
title and interest of the Issuer in and to the following (herein the "Trust
Estate"):
GRANTING CLAUSE FIRST
All moneys and securities from time to time held by the Trustee under
the terms of this Indenture and any and all other real or personal property of
every name and nature from time to time hereafter by delivery or by writing of
any kind conveyed, mortgaged, pledged, assigned or transferred, as and for
additional security hereunder (including the real property and improvements at
the Landfill) by the Issuer or by anyone on its behalf, or with its written
consent to the Trustee, which is hereby authorized to receive any and all such
property at any and all times and to hold and apply the same subject to the
terms hereof.
GRANTING CLAUSE SECOND
All the rights and interest of the Issuer in and to the Bond Fund (as
hereinafter defined), and all moneys and investments therein, but subject to
the provisions of this Indenture pertaining thereto, including those pertaining
to the making of disbursements therefrom.
GRANTING CLAUSE THIRD
All right, title and interest of the Issuer in all Pledged Revenues.
TO HAVE AND TO HOLD all and singular the Trust Estate, whether now
owned or hereafter acquired, unto the Trustee and its respective successor in
said trust and assigns forever.
IN TRUST NEVERTHELESS, upon the terms and trust herein set forth for
the equal and proportionate benefit, security and protection of all present and
future owners of the Senior Bonds from time to time issued under and secured by
this Indenture without privilege, priority or distinction as to the lien or
otherwise of any of the Senior Bonds over any of the other Senior Bonds (except
as herein otherwise expressly provided);
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns,
shall well and truly pay, or cause to be paid, the principal of, and premium,
if any, and interest on, the Senior Bonds due or to become due, at the times
and in the manner mentioned in the Senior Bonds according to the true intent
and meaning thereof, and shall cause the payments to be made on the Senior
Bonds as required under Article VIII hereof, or shall provide, as permitted
hereby, for the payment thereof by depositing with the Trustee the entire
amount due or to become due thereon (or Governmental Obligations sufficient for
that purpose as provided in Article VIII hereof), and shall pay or cause to be
paid to the Trustee all sums of money due or to become due to it in accordance
with the terms and provisions thereof, then upon the final payment thereof or
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provision thereof this Indenture and the rights hereby granted shall cease and
be void; otherwise this Indenture to be and remain in full force and effect.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is expressly
declared that, all Senior Bonds issued and secured hereunder are to be issued,
authenticated and delivered and all property, rights and interest, including,
without limitation, the amounts hereby assigned and pledged, are to be dealt
with and disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes as hereinafter
expressed, and Issuer has agreed and covenanted, and does hereby agree and
covenant with the Trustee and with the respective owners of the Senior Bonds as
follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. In addition to the words and terms defined
elsewhere in this Indenture, the words and terms defined in this Section shall
have the meanings herein specified unless the context or use clearly indicates
another or different meaning or intent.
"Authorized Issuer Representative" means the person designated at the
time to act on behalf of the Issuer.
"Authorized Denominations" means $5,000 and any integral multiples
thereof.
"Bond Fund" means the Bond Fund created in Section 4.1 hereof.
"Bond Service Charges" means, for any period or payable at any time,
the principal of, premium, if any, and interest on the Senior Bonds for that
period or payable at that time whether due at maturity or upon acceleration or
redemption.
"Business Day" means a day of the year, other than (a) a Saturday; (b)
a Sunday; (c) a day on which banks located in any city in which the principal
corporate trust office of the Trustee is located are required or authorized by
law to remain closed; or (d) a day on which the New York Stock Exchange and the
Federal Reserve are closed.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time. References to the Code and Sections of the Code include relevant
applicable regulations and proposed regulations thereunder and any successor
provisions to those Sections, regulations or proposed regulations.
"Eligible Investments" means (i) Government Obligations; (ii) Federal
National Mortgage Association's (FNMA) mortgage backed securities and senior
debt obligations which bear interest at a fixed rate and are fully amortizing;
(iii) Federal funds, certificates of deposit, time deposits and bankers'
acceptances (having original maturities of not more than 365 days) of any bank
the unsecured, uninsured and unguaranteed debt obligations of which (or, in the
case of the principal bank in a bank holding company, such debt obligations of
the bank holding company) have been rated "AA" or "A-1+" (or an equivalent) by
S&P or Moody's, or any other
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comparable rating established by S&P (iv) commercial paper (having original
maturities of not more than 365 days) rated "A-1+" (or an equivalent) by S&P or
Moody's; (v) money market funds investing in and secured solely by obligations
described in (i) above; (vi) deposits which are fully insured by the United
States of America or one of its agencies or instrumentalities; (vii) repurchase
agreements with any institution rated AAA (or an equivalent) by S&P or Moody's;
(viii) obligations of any state of the United States of America or any
political subdivision or other instrumentality of any such state, which are
rated at least "A" (or an equivalent) or its equivalent by S&P or Moody's; and
(ix) an interest in any trust or fund which trust or fund is invested solely in
Federal Securities or repurchase agreements with respect to Federal Securities.
"Event of Default" or "Default" means any occurrence or event
specified in and defined by Section 6.1 hereof.
"Extraordinary Services" and "Extraordinary Expenses" mean all
services rendered and all reasonable expenses properly incurred by the Trustee
under this Indenture, other than Ordinary Services and Ordinary Expenses.
"Fiscal Officer" means the Chief Financial Officer of the Issuer.
"Fiscal Year" means with respect to the Issuer, the period beginning
January 1 of each year and ending December 31 of such year.
"Government Obligations" or "Federal Securities" means obligations of,
or guaranteed as to principal and interest by, the United States or any agency
or instrumentality thereof when such obligations are backed by the full faith
and credit of the United States.
"Holder" or "Holder of a Bond" or "Bondholder" means the Person in
whose name a Bond is registered on the Register.
"Indenture" means this Trust Indenture, as amended or supplemented
from time to time.
"Interest Payment Date" means each date set forth as such in the form
of Senior Bond contained in this Indenture.
"Interest Rate for Advances" means, for the first thirty (30) days
such rate shall be applicable, a rate per annum equal to the Prime Rate, and
thereafter, a rate per annum which is equal to one percent (l%) plus the Prime
Rate.
"Issuance Costs" means the costs and expenses incurred by the Issuer
in connection with the issuance and sale of the Senior Bonds, including
(without limitation) related legal, accounting, financial, printing, recording
and filing fees and expenses, the fees and expenses of the placement agent for
the private placement of the Senior Bonds, the initial charge of the Trustee
relating to the Senior Bonds, and all other costs and expenses incurred by the
Issuer in connection with the issuance and sale of the Senior Bonds.
"Issuer" means WCA Shiloh Landfill, L.L.C., a Delaware limited
liability company, and any successor thereto.
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"Majority Holders" means the holders of a majority of the outstanding
principal amount of the Senior Bonds
"Maximum Annual Debt Service" means, with respect to the Senior Bonds,
the maximum amount of Bond Service Charges due in any fiscal year of the Issuer
while any of the Senior Bonds remain outstanding.
"Moody's" means Xxxxx'x Investors Service, and its successors and
assigns.
"Ordinary Services" and "Ordinary Expenses" means those services
normally rendered, and those expenses normally incurred, by a trustee under
instruments similar to this Indenture.
"Original Purchaser" means, as to the Senior Bonds, the Person or
Persons identified as the purchaser or purchasers in the Purchase Contract.
"Outstanding Senior Bonds," "Bonds outstanding" or "Senior Bonds
outstanding" mean, as of the applicable date, all Senior Bonds which have been
authenticated and delivered, or which are being delivered by the Trustee under
this Indenture, except:
(a) Senior Bonds cancelled upon surrender, exchange or
transfer, or cancelled because of payment or redemption on or prior to
that date;
(b) Senior Bonds, or the portion thereof, for the payment,
redemption or purchase for cancellation of which sufficient money has
been deposited and credited with the Trustee or any Paying Agents
pursuant to this Indenture on or prior to that date for that purpose
(whether upon or prior to the maturity or redemption date of those
Senior Bonds); provided, that if any of those Senior Bonds are to be
redeemed prior to their maturity, notice of that redemption shall have
been given or arrangements satisfactory to the Trustee shall have been
made for giving notice of that redemption, or waiver by the affected
Holders of that notice satisfactory in form to the Trustee shall have
been filed with the Trustee;
(c) Senior Bonds, or the portion thereof, which are deemed to
have been paid and discharged or caused to have been paid and
discharged pursuant to the provisions of this Indenture; and
(d) Senior Bonds in lieu of which others have been
authenticated under Section 2.10 of this Indenture;
provided that, for purposes of voting or giving any consent, any Bond owned by
the Issuer shall not be deemed to be outstanding hereunder.
"Paying Agent" means any bank or trust company designated as a Paying
Agent by or in accordance with Section 5.11 of this Indenture.
"Permitted Encumbrances" means as of any particular time:
(a) liens for ad valorem taxes, public improvement
assessments or other governmental charges not then delinquent;
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(b) pledges or deposits to secure obligations under workmen's
compensation or similar laws, including liens of judgments thereunder
that are not currently dischargeable;
(c) pledges or deposits to secure performance in connection
with bids, tenders, contracts (other than contracts for the payment of
money) or leases made in the ordinary course of business to which the
Issuer is a party;
(d) pledges or deposits to secure public or statutory
obligations of the Issuer;
(e) inchoate materialmen's, mechanics', suppliers', vendors'
or other similar liens if payment is not delinquent under the contract
giving rise to such lien, or deposits to obtain the release of any
such liens;
(f) liens resulting from any litigation, legal proceeding or
judgment that is currently being contested in good faith by
appropriate proceedings (provided that execution thereon is
effectively superseded or stayed), and pledges or deposits to secure,
or in lieu of, any surety, stay or appeal bond with respect to any
such litigation, legal proceeding or judgment;
(g) leases made, or existing on property acquired, in the
ordinary course of business;
(h) statutory landlord's liens and the other rights of the
lessor under any lease to which the Issuer is a party as lessee;
(i) zoning restrictions, easements, licenses and restrictions
on the use of or with respect to real property, and minor
irregularities in title thereto, that do not, in the opinion of the
Issuer, materially impair the use of such property in the operation of
the business of the Issuer or the value of such property for the
purpose of such business;
(j) pledges or deposits to enable the Issuer to maintain
self-insurance or to participate in any self-insurance pools or
trusts;
(k) liens on money deposited by customers or others with the
Issuer as security for, or as prepayment of, the cost of services to
be rendered by the Issuer;
(l) liens or charges on Pledged Revenues for the benefit of
obligations that the Issuer is permitted, by the provisions of
Indenture, to issue or incur;
(m) the Indenture and the Forms UCC-1 relating to the
Landfill; and
(n) utility, access and other easements and rights-of-way,
mineral rights, restrictions and exceptions that will not materially
interfere with or impair the operations being conducted in or about
the Landfill.
"Person" or words importing persons mean firms, associations,
partnerships (including without limitation, general and limited partnerships),
joint ventures, societies, estates, trusts, corporations, public or
governmental bodies, other legal entities and natural persons.
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"Pledged Revenues" or "Revenues" means all accounts receivable, rents,
receipts, issues and profits derived by the Issuer from the operation or
ownership of the Landfill to which the Issuer may be entitled, including but
not limited to all commercial receipts derived from commercial operation of the
Landfill, such as waste disposal fees, tipping fees and all other moneys to
which the Issuer may be entitled.
"Predecessor Bond" of any particular Senior Bond means every previous
Senior Bond evidencing all or a portion of the same debt as that evidenced by
the particular Bond. For the purposes of this definition, any Senior Bond
authenticated and delivered under Section 2.10 of this Indenture in lieu of a
lost, stolen or destroyed Senior Bond shall, except as otherwise provided in
Section 2.10, be deemed to evidence the same debt as the lost, stolen or
destroyed Senior Bond.
"Prime Rate" means the interest rate per annum established by the
Trustee from time to time as such bank's prime commercial rate based on its
consideration of economic, money market, business and competitive factors, and
is not necessarily such bank's most favored rate. Subject to any minimum or
maximum rate limitations specified by applicable law, the Prime Rate will
automatically and immediately change from time to time effective as of the
effective date of each such change in the prime commercial rate of such bank.
"Record Date" means, with respect to any Senior Bond, the fifteenth
day of the month immediately preceding an Interest Payment Date applicable to
that Senior Bond.
"Register" means the books kept and maintained by the Registrar for
registration and transfer of Senior Bonds pursuant to Section 2.9 hereof.
"Registrar" means, as to the Senior Bonds, Regions Bank, until a
successor Registrar shall have become such pursuant to applicable provisions of
this Indenture; each Registrar shall be a transfer agent registered in
accordance with Section 17(A)(c) of the Securities Exchange Act of 1934.
"S&P" means Standard & Poor's Corporation, a corporation organized
under the laws of the State of Delaware, and its successors and assigns.
"Senior Bonds" means the Senior Secured Bonds authorized to be issued
hereunder.
"State" means the State of Alabama.
"Supplemental Indenture" means any indenture supplemental to this
Indenture entered into between the Issuer and the Trustee in accordance with
Article VII hereof.
"Trustee" means the Trustee at the time acting as such under the
Indenture, originally Regions Bank, Montgomery, Alabama and any successor
Trustee as determined or designated under or pursuant to the Indenture.
SECTION 1.2. Interpretation. Any reference herein to the Issuer or to
any officer thereof includes entities or officials succeeding to their
respective functions, duties or
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responsibilities pursuant to or by operation of law or who are lawfully
performing their functions.
Unless the context indicates otherwise, words importing the singular
number include the plural number, and vice versa. The terms "hereof," "hereby,"
"herein," "hereto," "hereunder," "hereinafter" and similar terms refer to this
Indenture; and the term "hereafter" means after, and the term "heretofore"
means before, the date of this Indenture. Words of any gender include the
correlative words of the other genders, unless the sense indicates otherwise.
SECTION 1.3. Captions and Headings. The captions and headings in this
Indenture are solely for convenience of reference and in no way define, limit
or describe the scope or intent of any Articles, Sections, subsections,
paragraphs, subparagraphs or clauses hereof.
(End of Article I)
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ARTICLE II.
AUTHORIZATION AND TERMS OF SENIOR BONDS
SECTION 2.1. Authorized Amount of Senior Bonds. No Senior Bonds may be
issued under the provisions of this Indenture except in accordance with this
Article. The total authorized principal amount of Senior Bonds which shall be
issued under the provisions of this Indenture is $5,000,000.
SECTION 2.2. Issuance of Senior Bonds. It is determined to be
necessary to, and the Issuer shall, issue, sell and deliver $5,000,000
principal amount of Senior Bonds, in order, together with other funds to be
provided by the Issuer, to finance the general operating expenses and working
capital needs of the Landfill. The Senior Bonds shall be designated "Senior
Secured Bonds"; the Senior Bonds shall be issuable, unless a supplemental
indenture shall have been executed and delivered pursuant to Section 7.2(h)
hereof, only in fully registered form, substantially as set forth in Exhibit A
to this Indenture; shall be numbered in such manner as determined by the
Trustee in order to distinguish each Senior Bond from any other Senior Bond;
and shall be in the denominations of $5,000 and any integral multiple thereof.
The Senior Bonds shall be initially dated as of ________________ ___, 2000.
Upon any exchange or transfer and surrender of any Senior Bond in accordance
with the provisions hereof, the Issuer shall execute and the Trustee shall
authenticate and deliver one or more new Senior Bonds in exchange therefor as
provided herein. Any such new Senior Bond shall be dated, if authenticated
prior to the first Interest Payment Date, as of the date of the Senior Bonds
initially delivered hereunder, and otherwise, as of the Interest Payment Date
next preceding the date of its authentication, except that if authenticated on
an Interest Payment Date, it shall be dated as of such date of authentication;
provided that if at the time of authentication interest thereon is in default,
it shall be dated as of the date to which interest has been paid.
SECTION 2.3. Maturity and Interest. The Senior Bonds shall mature on
______________________, 2020 and shall bear interest at a rate of _______%
payable on each Interest Payment Date, commencing July 1, 2000, and continuing
until the entire principal sum of $5,000,000 is paid. Interest shall be
calculated on a 360-day year, 30-day month basis.
SECTION 2.4. Delivery of the Senior Bonds. Upon the execution and
delivery of this Indenture, and satisfaction of the conditions established by
the Issuer and in the Purchase Contract for delivery of the Senior Bonds, the
Issuer shall execute the Senior Bonds and deliver them to the Trustee.
Thereupon, the Trustee shall authenticate the Senior Bonds and deliver them to,
or on the order of, the Original Purchaser thereof, as directed by the Issuer
in accordance with Section 2.6.
Before the Trustee delivers any Senior Bonds, the Trustee shall have
received a request and authorization to the Trustee on behalf of the Issuer,
signed by an Authorized Issuer Representative, to authenticate and deliver the
Senior Bonds to, or on the order of, the Original Purchaser upon payment to the
Trustee of the amount specified therein, which amount shall be delivered to the
Issuer.
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SECTION 2.5. Form of Senior Bonds. The Senior Bonds, the certificate
of authentication and the form of assignment shall be substantially in the
respective forms thereof set forth in Exhibit A to this Indenture.
All Senior Bonds shall be in fully registered form, and, except as
provided in Section 2.8 hereof, the Holder of a Bond shall be regarded as the
absolute owner thereof for all purposes of this Indenture.
The Senior Bonds shall be negotiable instruments in accordance with
the laws of the State, and shall express the purpose for which they are issued
and any other statements or legends which may be required by law. Each Senior
Bond shall be of a single maturity, unless the Trustee shall approve the
authentication and delivery of a Bond or more than one maturity.
SECTION 2.6. Execution and Authentication of Senior Bonds. Each Senior
Bond shall be signed by the Chief Financial Officer of the Issuer and attested
by the Secretary of the Issuer (provided that any such signatures may be a
facsimile), and the seal of the Issuer shall be impressed or printed thereon,
which seal may be a facsimile. In case any officer whose signature or a
facsimile of whose signature shall appear on any Senior Bond shall cease to be
that officer before the issuance of the Senior Bond, his signature or the
facsimile thereof nevertheless shall be valid and sufficient for all purposes,
the same as if he had remained in office until that time. Any Senior Bond may
be executed on behalf of the Issuer by an officer who, on the date of execution
is the proper officer, although on the date of the Senior Bond that person was
not the proper officer.
No Senior Bond shall be valid or become obligatory for any purpose or
shall be entitled to any security or benefit under this Indenture unless and
until a certificate of authentication, substantially in the form set forth in
Exhibit A to this Indenture, has been signed by the Trustee. The authentication
by the Trustee upon any Senior Bond shall be conclusive evidence that the
Senior Bond so authenticated has been duly authenticated and delivered
hereunder and is entitled to the security and benefit of this Indenture. The
certificate of the Trustee may be executed by any person authorized by the
Trustee, but it shall not be necessary that the same authorized person sign the
certificates of authentication on all of the Senior Bonds.
SECTION 2.7. Source of Payment of Senior Bonds. To the extent provided
in and except as otherwise permitted by this Indenture, (i) the Senior Bonds
shall be senior secured obligations of the Issuer, ranking pari passu with all
other indebtedness of the Issuer, and the Bond Service Charges thereon shall be
payable equally and ratably from all available sources of the Issuer. The
payment of Bond Service Charges on the Senior Bonds shall be additionally
secured by the assignment of Pledged Revenues hereunder and by this Indenture.
SECTION 2.8. Payment and Ownership of Senior Bonds. Bond Service
Charges shall be payable in lawful money of the United States of America
without deduction for the services of the Trustee or any Paying Agent. The
principal of and any premium on any Senior Bond shall be payable when due to a
Holder upon presentation and surrender of such Senior Bond at the principal
corporate trust office of the Trustee or at the office, designated by the
Trustee, of any Paying Agent. Interest on any Senior Bond shall be paid on each
Interest Payment Date by check or draft which the Trustee shall cause to be
mailed on that date to the person in whose name the Senior Bond (or one or more
Predecessor Senior Bonds) is
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registered at the close of business on the Record Date applicable to that
Interest Payment Date on the Register at the address appearing therein, or at
the option of any registered owner of at least $500,000 in aggregate principal
amount of the Senior Bonds, shall be paid by wire transfer in immediately
available funds to the bank account number and address filed with the Trustee
at least fifteen (15) days prior to the applicable Record Date which notice may
provide that it will remain in effect with respect to subsequent Interest
Payment Dates unless and until such notice or instructions are revoked by
written notice filed with the Trustee; provided that such address is in the
continental United States and provided, further, that final payment of
principal and interest shall be made at the corporate trust office of the
Trustee upon presentation and surrender of such Senior Bond.
Except as provided in the first paragraph of Section 2.9 hereof, (i)
the Holder of any Senior Bond shall be deemed and regarded as the absolute
owner thereof for all purposes of this Indenture, (ii) payment of or on account
of the Bond Service Charges on any Senior Bond shall be made only to or upon
the order of that Holder or its duly authorized attorney in the manner
permitted by this Indenture, and (iii) neither the Issuer, the Trustee, the
Registrar nor any Paying Agent shall, to the extent permitted by law, be
affected by notice to the contrary. All of those payments shall be valid and
effective to satisfy and discharge the liability upon that Senior Bond,
including without limitation, the interest thereon, to the extent of the amount
or amounts so paid.
SECTION 2.9. Transfer and Exchange of Senior Bonds. So long as any of
the Senior Bonds remain outstanding, the Issuer will cause books for the
registration and transfer of Senior Bonds, as provided in this Indenture, to be
maintained and kept at the designated office of the Registrar.
Senior Bonds may be exchanged, at the option of their Holder, for
Senior Bonds of the same series and of any authorized denomination or
denominations in an aggregate principal amount equal to the unmatured and
unredeemed principal amount of, and bearing interest at the same rate and
maturing on the same date or dates as, the Senior Bonds being exchanged. The
exchange shall be made upon presentation and surrender of the Senior Bonds
being exchanged at the designated office of the Registrar, together with an
assignment duly executed by the Holder or its duly authorized attorney in any
form which shall be satisfactory to the Registrar.
Any Senior Bond may be transferred upon the Register, upon
presentation and surrender thereof at the designated office of the Registrar,
together with an assignment duly executed by the Holder or its duly authorized
attorney in any form which shall be satisfactory to the Registrar. Upon
transfer of any Senior Bond and on request of the Registrar, the Issuer shall
execute in the name of the transferee, and the Registrar, shall authenticate
and deliver, a new Senior Bond or Senior Bonds of the same series, of any
authorized denomination or denominations in an aggregate principal amount equal
to the unmatured and unredeemed principal amount of, and bearing interest at
the same rate and maturing on the same date or dates as, the Senior Bonds
presented and surrendered for transfer.
In all cases in which Senior Bonds shall be exchanged or transferred
hereunder, the Issuer shall execute, and the Registrar shall authenticate and
deliver, Senior Bonds in accordance with the provisions of this Indenture. The
exchange or transfer shall be made without charge; provided, that the Issuer
and the Registrar, may make a charge for every exchange or transfer of
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Senior Bonds sufficient to reimburse them for any tax or excise required to be
paid with respect to the exchange or transfer. The charge shall be paid before
a new Senior Bond is delivered.
All Senior Bonds issued upon any transfer or exchange of Senior Bonds
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Senior Bonds
surrendered upon transfer or exchange. Neither the Issuer nor the Registrar
shall be required to make any exchange or transfer of a Senior Bond during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Senior Bonds and ending at the close of
business on the day of such mailing or to transfer or exchange any Senior Bonds
selected for redemption, in whole or in part.
In case any Senior Bond is redeemed in part only, on or after the
redemption date and upon presentation and surrender of the Senior Bond, the
Issuer shall cause execution of, and the Registrar shall authenticate and
deliver, a new Senior Bond or Senior Bonds of the same series in authorized
denominations in an aggregate principal amount equal to the unmatured and
unredeemed portion of, and bearing interest at the same rate and maturing on
the same date or dates as, the Senior Bond redeemed in part.
For purposes of this Section the Trustee shall establish the
designated office of the Registrar.
SECTION 2.10. Mutilated, Lost, Wrongfully Taken or Destroyed Senior
Bonds. If any Senior Bond is mutilated, lost, wrongfully taken or destroyed, in
the absence of written notice to the Issuer or the Registrar that a lost,
wrongfully taken or destroyed Senior Bond has been acquired by a bona fide
purchaser, the Issuer shall execute, and the Registrar shall authenticate and
deliver, a new Senior Bond of like date, maturity and denomination and of the
same series as the Senior Bond mutilated, lost, wrongfully taken or destroyed;
provided, that (i) in the case of any mutilated Senior Bond, the mutilated
Senior Bond first shall be surrendered to the Registrar, and (ii) in the case
of any lost, wrongfully taken or destroyed Senior Bond, there first shall be
furnished to the Issuer, the Trustee and the Registrar evidence of the loss,
wrongful taking or destruction satisfactory to the Authorized Issuer
Representative, the Trustee and the Registrar, together with indemnity
satisfactory to them and to the Issuer.
If any lost, wrongfully taken or destroyed Senior Bond shall have
matured, instead of issuing a new Senior Bond, the Authorized Issuer
Representative may direct the Trustee to pay that Senior Bond without surrender
thereof upon the furnishing of satisfactory evidence and indemnity as in the
case of issuance of a new Senior Bond. The Issuer, the Registrar and the
Trustee may charge the Holder of a mutilated, lost, wrongfully taken or
destroyed Senior Bond their reasonable fees and expenses in connection with
their actions pursuant to this Section.
Every new Senior Bond issued pursuant to this Section by reason of any
Senior Bond being mutilated, lost, wrongfully taken or destroyed (i) shall
constitute, to the extent of the outstanding principal amount of the Senior
Bond lost, mutilated, wrongfully taken or destroyed, an additional contractual
obligation of the Issuer, regardless of whether the mutilated, lost, wrongfully
taken or destroyed Senior Bond shall be enforceable at any time by anyone and
(ii) shall be entitled to all of the benefits of this Indenture equally and
proportionately with any and all other Senior Bonds issued and outstanding
hereunder.
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All Senior Bonds shall be held and owned on the express condition that
the foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated, lost, wrongfully taken or destroyed Senior
Bonds and, to the extent permitted by law, shall preclude any and all other
rights and remedies with respect to the replacement or payment of negotiable
instruments or other investment securities without their surrender,
notwithstanding any law or statute to the contrary now existing or enacted
hereafter.
SECTION 2.11. Cancellation of Senior Bonds. Except as provided in
Section 2.5 hereof, any Senior Bonds surrendered pursuant to this Article for
the purpose of payment or retirement or for exchange, replacement or transfer
shall be cancelled upon presentation and surrender thereof to the Registrar,
the Trustee or any Paying Agent. Any Senior Bond cancelled by the Trustee or a
Paying Agent shall be transmitted promptly to the Registrar by the Trustee or
Paying Agent.
The Issuer may deliver at any time to the Registrar for cancellation
any Senior Bonds previously authenticated and delivered hereunder, which the
Issuer may have acquired in any manner whatsoever. All Senior Bonds so
delivered shall be cancelled promptly by the Registrar. Certification of the
surrender and cancellation shall be made to the Issuer and the Trustee by the
Registrar at least twice each calendar year. Unless otherwise directed by the
Issuer, cancelled Senior Bonds shall be destroyed by the Registrar after their
cancellation. The Registrar shall provide certificates describing the
destruction of cancelled Senior Bonds to the Issuer and the Trustee.
(End of Article II)
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ARTICLE III.
REDEMPTION OF SENIOR BONDS
SECTION 3.1. Terms of Redemption of Senior Bonds. The Senior Bonds are
subject to redemption prior to stated maturity as follows:
(a) Mandatory Sinking Fund Redemption. The Senior Bonds are
subject to mandatory redemption pursuant to mandatory sinking fund
requirements, at a redemption price of 100 percent of the principal
amount redeemed plus interest accrued to the redemption date, on
_____________________, in the following principal amounts in the years
specified:
Principal Amount
Year of to be Redeemed
Redemption on Senior Bonds
------------- ----------------
2004 $
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
If retired only by mandatory sinking fund redemption prior to
their stated maturity, there would remain $__________ principal amount
of the Senior Bonds due _______________, 2020, to be paid at maturity.
The Issuer shall have the option to deliver to the Registrar
for cancellation Senior Bonds in any aggregate principal amount and to
receive a credit against the then-current mandatory sinking fund
requirement (and corresponding mandatory redemption obligation) of the
Issuer as set forth in the table above for the Senior Bonds. That
option shall be exercised by the Issuer on or before the 45th day
preceding the applicable mandatory sinking fund redemption date, by
furnishing the Trustee a certificate, executed by the Authorized
Issuer Representative setting forth the extent of the credit to be
applied with respect to the then-current mandatory sinking fund
requirement. If the certificate and the Senior Bonds to be credited
are not timely furnished to the Trustee, the
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mandatory sinking fund requirement (and corresponding mandatory
redemption obligation) shall not be reduced. A credit against the
then-current mandatory sinking fund requirement (and corresponding
mandatory redemption obligation) also shall be received by the Issuer
for any Senior Bonds which prior thereto have been redeemed (other
than through the operation of the mandatory sinking fund requirements)
or purchased for cancellation and cancelled by the Trustee, to the
extent not applied theretofore as a credit against any redemption
obligation. Senior Bonds delivered to the Registrar for cancellation
pursuant to this paragraph shall be credited against the mandatory
sinking fund requirement with respect to the Senior Bonds.
Except as otherwise provided in the preceding paragraph, each
Senior Bond so delivered, or previously redeemed, or purchased and
cancelled, shall be credited by the Trustee at 100 percent of the
principal amount thereof against the then-current mandatory sinking
fund obligation. Except as otherwise provided in the preceding
paragraph any excess of that amount over the then-current mandatory
sinking fund requirement shall be credited against subsequent
mandatory sinking fund redemption obligations in chronological order.
(b) Mandatory Redemption Upon Unenforceability. The Senior
Bonds are subject to mandatory redemption in whole in the event that
the Indenture shall have become void or unenforceable or impossible of
performance in accordance with the intent and purpose of the parties
as expressed therein by reason of any changes in the Constitution of
the State or the Constitution of the United States of America, or by
reason of legal or administrative action (whether state or federal) or
any final decree, judgement or order of any court (whether state or
federal) entered after the contest thereof with the opportunity for
the contest thereof by the Issuer, the Holder or the Trustee in good
faith.
(c) Extraordinary Optional Redemption. The Senior Bonds are
also subject to redemption by the Issuer in whole, but not in part, at
a redemption price of 100% of the principal amount redeemed, plus
interest accrued to the redemption date if the Issuer exercises its
option under this Indenture to prepay the payments due hereunder upon
the occurrence of any of the following events:
(i) The Landfill shall have been damaged or
destroyed (a) to such extent that the Landfill cannot
reasonably be restored within a period of six months to the
condition thereof immediately preceding such damage or
destruction, or (b) to such extent that the Issuer is thereby
prevented from carrying on its normal operations at the
Landfill for a period of six months; or
(ii) Title to, or the temporary use of, all or a
substantial portion of the Landfill shall have been taken
under the exercise of the power of eminent domain by any
governmental authority, or person, firm or corporation acting
under governmental authority, (a) to such extent that the
Landfill cannot reasonably be restored within a period of six
months to a condition of usefulness comparable to that
existing prior to such taking, or (b) if such taking results
in the Issuer being thereby prevented from
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carrying on its normal operations at the Landfill for a
period of six months.
(d) Optional Redemption. The Senior Bonds are callable for
redemption, in whole or in part, at the option of the Issuer on any
date on or after ______________, 200__ at a redemption price as set
forth below (expressed as a percentage of the outstanding principal
amount):
REDEMPTION DATES
(DATES INCLUSIVE) REDEMPTION PRICES
April 1, 200__ through March 31, 200__ ____%
April 1, 200__ through March 31, 200__ ____%
April 1, 200__ and thereafter 100%
and thereafter at a redemption price equal to 100% of the principal
amount, together in the case of any such redemption with accrued
interest to the date of redemption.
SECTION 3.2. Issuer's Election to Redeem. Except in the case of
redemption pursuant to any mandatory redemption provisions, Senior Bonds shall
be redeemed only by written notice from the Issuer to the Trustee. That notice
shall specify the redemption date and the principal amount of each maturity of
Senior Bonds to be redeemed, and shall be given at least 45 days prior to the
redemption date or such shorter period as shall be acceptable to the Trustee.
SECTION 3.3. Notice of Redemption. Unless waived in writing by any
Holder of Senior Bonds to be redeemed and except as provided below, official
notice of redemption shall be given by the Registrar on behalf of the Issuer by
mailing a copy of an official redemption notice by registered or certified mail
to the Holder of each Senior Bond to be redeemed, at the address of such Holder
shown on the Senior Bond Register, not less than 30 days nor more than 45 days
prior to the date fixed for redemption.
All official notices of redemption shall be dated and shall state:
(1) the redemption date,
(2) the redemption price,
(3) if less than all outstanding Senior Bonds are to be
redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the Senior Bonds to be redeemed,
(4) that on the redemption date the redemption price will
become due and payable upon each such Senior Bond or portion thereof
called for redemption, and that interest thereon shall cease to accrue
from and after said date, and
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(5) the place where such Senior Bonds are to be surrendered
for payment of the redemption price, which place of payment shall be
in the principal office of the Registrar.
If at the time of mailing of notice of any optional redemption there
shall not have been deposited with the Trustee moneys sufficient to redeem all
the Senior Bonds called for redemption, such notice may state that it is
conditional on the deposit of such moneys with the Trustee not later than the
redemption date, and such notice shall be of no effect unless such moneys are
so deposited.
In addition to the foregoing official notice, further notice shall be
given by the Trustee as set out below, but no defect in said further notice nor
any delay in giving such notice nor any failure to give all or any portion of
such further notice shall in any manner defeat the effectiveness of a call for
redemption if the official notice thereof is given as above prescribed.
1. Each further notice of redemption given hereunder shall
contain the information required above for an official notice of
redemption plus (i) the CUSIP numbers of all Senior Bonds being
redeemed; (ii) the date of issue of the Senior Bonds as originally
issued; (iii) the rate of interest borne by each Senior Bond being
redeemed; (iv) the maturity date of each Senior Bond being redeemed;
and (v) any other descriptive information needed to identify
accurately the Senior Bonds being redeemed.
2. Each further notice of redemption shall be sent at least
30 days before the redemption date by registered or certified mail or
overnight delivery service to all registered securities depositories
then in the business of holding substantial amounts of obligations of
types comprising the Senior Bonds (such depositories now being The
Depository Trust Company of New York, New York, Midwest Securities
Trust Company of Chicago, Illinois, and Philadelphia Depository Trust
Company of Philadelphia, Pennsylvania) and to one or more national
information services that disseminate notices of redemption of
obligations such as the Senior Bonds.
3. Upon the payment of the redemption price of Senior Bonds
being redeemed, each check or other transfer of funds issued for such
purpose shall bear the CUSIP number identifying, by issue and
maturity, the Senior Bonds being redeemed with the proceeds of such
check or other transfer.
Failure to duly give official notice of redemption by mail or any
defect therein shall not affect the validity of the proceedings for the
redemption of any Senior Bond with respect to which no such failure or defect
has occurred. Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the registered
Holder receives notice.
SECTION 3.4. Payment of Redeemed Senior Bonds. Notice having been
mailed in the manner provided in Section 3.3 hereof, the Senior Bonds and
portions thereof called for redemption shall become due and payable on the
redemption date unless such notice of redemption is conditional, in which case
the Senior Bonds and portions thereof called for redemption will become due and
payable only if funds for the payment thereof are deposited with the Trustee,
and upon presentation and surrender thereof at the place or places specified in
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that notice, shall be paid at the redemption price, including interest accrued
to the redemption date.
If money for the redemption of all of the Senior Bonds and portions
thereof to be redeemed, together with interest accrued thereon to the
redemption date, is held by the Trustee or any Paying Agent on the redemption
date, so as to be available therefor on that date and if notice of redemption
has been deposited in the mail as aforesaid, then from and after the redemption
date those Senior Bonds and portions thereof called for redemption shall cease
to bear interest and no longer shall be considered to be outstanding hereunder.
If those moneys shall not be so available on the redemption date, or that
notice shall not have been deposited in the mail as aforesaid, those Senior
Bonds and portions thereof shall continue to bear interest, until they are
paid, at the same rate as they would have borne had they not been called for
redemption.
All moneys deposited in the Senior Bond Fund and held by the Trustee
or a Paying Agent for the redemption of particular Senior Bonds shall be held
in trust for the account of the Holders thereof and shall be paid to them,
respectively, upon presentation and surrender of those Senior Bonds.
(End of Article III)
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ARTICLE IV.
PROVISIONS AS TO FUNDS AND PAYMENTS
SECTION 4.1. Senior Bond Fund. A special fund is hereby created and
designated "WCA Shiloh Landfill of South Carolina, L.L.C. Senior Bond Fund"
(the "Bond Fund"). There are hereby created within the Bond Fund two separate
accounts designated "Interest Account" and "Principal Account," respectively.
The moneys in said fund shall be held in trust and applied as
hereinafter provided with regard to such fund and, pending such application,
shall be subject to a lien and charge in favor of the Holders of the Senior
Bonds issued and outstanding under this Indenture and for the further security
of such Holders until paid out or transferred as herein provided.
The Issuer covenants that so long as the Senior Bonds are Outstanding,
it will pay directly to the Trustee for deposit, as herein provided, to the
credit of the Senior Bond Fund, all Bond Service Charges owing by the Issuer
under this Indenture in the amounts, respectively, set forth in this Indenture
and in any resolution of the Issuer. The Trustee shall promptly upon the
receipt of such payments deposit such money in the Senior Bond Fund and in each
month in which payments are due and received shall credit such payments so
received to the following funds in the following order:
(a) Beginning __________, 2000 and on the 1st day of each
month thereafter through _______________, 2020, a payment shall be
made into the Interest Account of the Bond Fund in an amount equal to
one-sixth (1/6) of the interest payable on the Senior Bonds on the
next succeeding Interest Payment Date;
(b) On or before the ____ day of each month, into the
foregoing Bond Fund an amount sufficient to make up any deficiency in
any prior payment required to be made into such Bond Fund and to
restore any loss resulting from investment or other causes from such
Bond Fund.
(c) On or before ______________, 2020, an amount equal to the
principal due on the Senior Bonds at maturity shall be deposited into
the Principal Account of the Bond Fund.
(d) All earnings on the Bond Fund shall be deposited to the
Bond Fund to be applied to the payment of Bond Service Charges on the
Senior Bonds.
SECTION 4.2. Investment of Senior Bond Fund. Except as hereinafter
provided, moneys in the Bond Fund shall be invested and reinvested by the
Trustee in Eligible Investments at the written direction of the Authorized
Issuer Representative. Investments of moneys in the Bond Fund shall mature or
be redeemable without penalty at the option of the Trustee at the times and in
the amounts necessary to provide moneys to pay Bond Service Charges as they
become due at stated maturity or by redemption.
Subject to any directions from the Authorized Issuer Representative
with respect thereto, from time to time, the Trustee may sell Bond Fund
investments and reinvest the proceeds
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therefrom in Eligible Investments maturing or redeemable as aforesaid. Any of
those investments may be purchased from or sold to the Trustee, the Registrar
or a Paying Agent, or any bank, trust company or savings and loan association
affiliated with any of the foregoing. The Trustee shall sell or redeem
investments credited to the Bond Fund to produce sufficient moneys applicable
hereunder to and at the times required for the purposes of paying Bond Service
Charges when due as aforesaid, and shall do so without necessity for any order
on behalf of the Issuer and without restriction by reason of any order.
SECTION 4.3. Moneys to be Held in Trust. Except where moneys have been
deposited with or paid to the Trustee pursuant to an instrument restricting
their application to particular Senior Bonds, all moneys required or permitted
to be deposited with or paid to the Trustee or any Paying Agent under any
provision of this Indenture, and any investments thereof, shall be held by the
Trustee or that Paying Agent in trust. Except (i) for moneys deposited with or
paid to the Trustee or any Paying Agent for the redemption of Senior Bonds,
notice of the redemption of which shall have been duly given and (ii) for
moneys held by the Trustee pursuant to Section 4.4 hereof, all moneys described
in the preceding sentence held by the Trustee or any Paying Agent shall be
subject to the lien hereof while so held.
SECTION 4.4. Nonpresentment of Senior Bonds. In the event that any
Senior Bond shall not be presented for payment when the principal thereof
becomes due in whole or in part, either at stated maturity or by redemption, or
a check or draft for interest is uncashed, if moneys sufficient to pay the
principal then due of that Senior Bond or of such check or draft shall have
been made available to the Trustee for the benefit of its Holder, all liability
of the Issuer to that Holder for such payment of the principal then due of the
Senior Bond or of such check or draft thereupon shall cease and be discharged
completely. Thereupon, it shall be the duty of the Trustee to hold those
moneys, without liability for interest thereon, in a separate account in the
Bond Fund for the exclusive benefit of the Holder, who shall be restricted
thereafter exclusively to those moneys for any claim of whatever nature on its
part under this Indenture or on, or with respect to, the principal then due of
that Senior Bond or of such check or draft.
Any of those moneys which shall be so held by the Trustee, and which
remain unclaimed by the Holder of a Senior Bond not presented for payment or
check or draft not cashed for a period of four years after the due date
thereof, shall be paid to the Issuer, free of any trust or lien. Thereafter,
the Holder of that Senior Bond shall look only to the Issuer for payment and
then only to the amounts so received by the Issuer without any interest
thereon, and the Trustee shall not have any responsibility with respect to
those moneys.
SECTION 4.5. Repayment to the Issuer from the Senior Bond Fund. Except
as provided in Section 4.4 hereof, any amounts remaining in the funds and
accounts established under this Indenture (i) after all of the outstanding
Senior Bonds shall be deemed paid and discharged under the provisions of this
Indenture, and (ii) after payment of all fees, charges and expenses of the
Trustee, the Registrar and any Paying Agents or Authenticating Agents and of
all other amounts required to be paid under this Indenture shall be paid to the
Issuer to the extent that those amounts are in excess of those necessary to
effect the payment and discharge of the outstanding Senior Bonds.
(End of Article IV)
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ARTICLE V.
THE TRUSTEE
SECTION 5.1. Acceptance of Trust. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts,
but only upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of an Event of
Default and after any Event of Default has been cured, undertakes to
perform such duties and only such duties as are specifically set forth
in this Indenture, and no implied duties or obligations may be read
into this Indenture against the Trustee. In case an Event of Default
of which the Trustee has, or is deemed to have, notice has occurred,
(which has not been cured or waived) 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 exercising such rights and powers as
a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) The Trustee may exercise any powers hereunder and perform
any of its duties by or through attorneys, accountants and other
experts, agents, receivers or employees but shall be answerable for
the conduct of the same in accordance with the standard specified
above, and shall be entitled to the advice of counsel concerning its
duties hereunder, and may in all cases pay such reasonable
compensation to all such attorneys, accountants and other experts,
agents and receivers as may reasonably be employed in connection with
the trusts hereof.
(c) The Trustee shall not be responsible for any recital
herein, or in the Senior Bonds, or for the recording or filing of any
instrument required to secure the Senior Bonds, or for the validity of
the execution by the Issuer of this Indenture, or of any instruments
or further assurance, or for the sufficiency of the security for the
Senior Bonds issued hereunder or intended to be secured hereby, but
the Trustee shall be responsible for the filing of any continuation
statements which may from time to time be required to be filed under
the Alabama Uniform Commercial Code in order to continue the
perfection of the lien of this Indenture. The Trustee shall not be
responsible for insuring the Landfill or collecting any insurance
moneys, or for the validity of the execution by the Issuer of this
Indenture or of any supplements hereto or instruments of further
assurance, or for the sufficiency of documents relating to the
security for the Senior Bonds issued hereunder or intended to be
secured hereby, and the Trustee shall not be bound to ascertain or
inquire as to the observance or performance of any covenants,
conditions or agreements on the part of the Issuer except as herein
set forth.
(d) The Trustee shall not be accountable for the use of any
Senior Bonds authenticated or delivered hereunder. The Trustee may
become the owner of Senior Bonds secured hereby with the same rights
which it would have if not the Trustee.
(e) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or document believed to be
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genuine and correct and to have been signed or sent by the proper
person or persons. Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any person who
at the time of making such request or giving such authority or consent
is the owner of any Senior Bond, shall be conclusive and binding upon
all future owners of the same Senior Bond and upon Senior Bonds issued
in exchange therefor or in place thereof.
(f) As to the existence or non-existence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding,
the Trustee shall be entitled to rely upon a certificate signed by an
Authorized Issuer Representative as sufficient evidence of the facts
therein contained and after the occurrence of a default of which the
Trustee is required to take notice, deemed to have notice or has been
given notice as provided in Section 5.1(h) hereof, the Trustee shall
also be at liberty to accept a similar certificate to the effect that
any particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence
deemed by it to be necessary or advisable, but shall in no case be
bound to secure the same. The Trustee may accept a certificate of the
Secretary of the Issuer under the seal of the Issuer to the effect
that an authorization in the form therein set forth has been adopted
by the Issuer as conclusive evidence that such authorization has been
duly adopted and is in full force and effect.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and the
Trustee shall not be answerable for other than its gross negligence or
willful misconduct.
(h) The Trustee shall not be required to take notice of any
default hereunder except failure by the Issuer to cause to be made any
of the payments to the Trustee required to be made in order to pay
principal, interest or premium, if any, on the Senior Bonds, unless
the Trustee shall be specifically notified in writing of such default
by the Issuer or by an owner of the Senior Bonds, and all notices or
other instruments required by this Indenture to be delivered to the
Trustee, must, in order to be effective, be delivered at the principal
corporate trust office of the Trustee, and in the absence of such
notice so delivered the Trustee may conclusively assume there is not
default except as aforesaid.
(i) At any and all reasonable times the Trustee, and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right to fully inspect any and all of
the Issuer's property, including all books, papers and records of the
Issuer pertaining to the Landfill and the Senior Bonds, and to take
such memoranda from and with regard thereto as may be desired.
(j) The Trustee shall not be required to give any Senior Bond
or surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture with
respect to the authentication of any Senior Bonds, the withdrawal of
any cash, the release of any property, or any action whatsoever within
the purview of this Indenture, the Trustee shall
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have the right, but shall not be required, to demand any showings,
certificates, opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that which by the terms
hereof is required as a condition of such action, the Trustee deems
desirable for the purpose of establishing the right to the
authentication of any Senior Bonds, the withdrawal of any cash, or the
taking of any other action by the Trustee.
(l) All moneys received by the Trustee shall, until used or
applied or invested as herein provided, be held in trust for the
purposes for which they were received but need not be segregated from
other funds except to the extent required by law.
(m) The Trustee may rely upon advice of counsel chosen by the
Trustee with due care and shall not be responsible for any loss or
damage resulting from any action or non-action taken or omitted to be
taken by the Trustee in good faith in reliance upon advice of such
counsel. The permissive right of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and the Trustee
shall not be answerable for the exercise of any discretion or power
under this Indenture or for anything whatsoever in connection with the
trusts created hereby, except only for its own gross negligence or
willful misconduct, including that of its directors, officers,
employees or agents.
(n) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise to
incur financial liability in the performance of any of its duties or
the exercise of any of its rights or powers hereunder, except as
expressly provided herein. The Trustee shall not be required to give
any Senior Bond or surety in respect to the execution of its rights
and obligations hereunder.
SECTION 5.2. Fees, Charges and Expenses of Trustee, Registrar and
Paying Agents. (a) The Trustee, the Registrar and any Paying Agent shall be
entitled to payment or reimbursement by the Issuer for reasonable fees for its
Ordinary Services rendered hereunder and for all advances, counsel fees and
other Ordinary Expenses reasonably and necessarily paid or incurred by them in
connection with the provision of Ordinary Services. For purposes hereof, fees
for Ordinary Services provided for by their respective standard fee schedules
shall be considered reasonable. In the event that it should become necessary
for any of them to perform Extraordinary Services, they shall be entitled to
reasonable extra compensation therefor and to reimbursement for reasonable and
necessary Extraordinary Expenses incurred in connection therewith. Upon an
Event of Default, but only upon an Event of Default, the Trustee shall have a
first lien with right of payment prior to payment on account of principal of,
premium, if any, and interest on any Senior Bond upon the Trust Estate for the
foregoing fees, charges and expenses incurred by it.
(b) Without creating a default or an Event of Default hereunder,
however, the Issuer may contest in good faith the necessity for any
Extraordinary Service and Extraordinary Expense and the reasonableness of any
fee, charge or expense.
(c) The Trustee, the Registrar and any Paying Agents shall not be
entitled to compensation or reimbursement for Extraordinary Services or
Extraordinary Expenses occasioned by their gross negligence or willful
misconduct. Any amounts payable to the Trustee, the Registrar or any Paying
Agent pursuant to this Section 5.2 shall be payable upon
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demand and shall bear interest from the date of demand therefor at the Interest
Rate for Advances.
SECTION 5.3. Intervention by Trustee. The Trustee may intervene on
behalf of the Holders, and shall intervene if requested to do so in writing by
the Holders of at least a majority of the aggregate principal amount of Senior
Bonds then outstanding, in any judicial proceeding to which the Issuer or Waste
Corporation of America, Inc. (the "Company") is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing on the
interest of Holders of the Senior Bonds. The rights and obligations of the
Trustee under this Section are subject to the approval of that intervention by
a court of competent jurisdiction. The Trustee may require that a satisfactory
indemnity Senior Bond be provided to it in accordance with Sections 5.1 and 5.2
hereof before it takes action under this Section.
SECTION 5.4. Successor Trustee. Anything herein to the contrary
notwithstanding,
(a) any corporation or association (i) into which the Trustee may be
converted or merged, (ii) with which the Trustee or any successor to it may be
consolidated, or (iii) to which it may sell or transfer it assets and corporate
trust business as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, merger, consolidation, sale or
transfer, ipso facto, shall be and become successor Trustee hereunder and shall
be vested with all of the title to the whole property or trust estate
hereunder; and
(b) that corporation or association shall be vested further, as was
its predecessor, with each and every trust, property, remedy, power, right,
duty, obligation, discretion, privilege, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
Indenture to be exercised by, vested in or conveyed to the Trustee, without the
execution or filing of any instrument or document or any further act on the
part of any of the parties hereto.
Any successor Trustee, however, (i) shall be a trust company or a bank having
the powers of a trust company, (ii) shall be duly authorized to exercise trust
powers within the State, and (iii) shall have a reported capital and surplus of
not less than $15,000,000.
SECTION 5.5. Appointment of Co-Trustee. (a) It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
(including without limitation, the laws of the State) denying or restricting
the right of banks or trust companies to transact business as trustees in that
jurisdiction. It is recognized that, (a) if there is litigation under the
Indenture or other instruments or documents relating to the Senior Bonds and
the Landfill, and in particular, in case of the enforcement hereof upon a
default or an Event of Default, or (b) if the Trustee should deem that, by
reason of any present or future law of any jurisdiction, it may not (i)
exercise any of the powers, rights or remedies granted herein to the Trustee,
(ii) hold title to the properties, in trust, as granted herein, or (iii) take
any action which may be desirable or necessary in connection therewith, it may
be necessary that the Trustee appoint an individual or additional institution
as a co-trustee. The following provisions of this Section are adapted to these
ends.
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(b) In the event that the Trustee appoints an individual or additional
institution as a co-trustee, each and every trust, property, remedy, power,
right, duty, obligation, discretion, privilege, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
Indenture to be exercised by, vested in or conveyed to the Trustee shall be
exercisable by, vest in and be conveyed to that co-trustee, but only to the
extent necessary for it to be so vested and conveyed and to enable that
co-trustee to exercise it. Every covenant, agreement and obligation necessary
to the exercise thereof by that co-trustee shall run to and be enforceable by
it.
(c) Should any instrument or document in writing from the Issuer
reasonably be required by the co-trustee so appointed by the Trustee for
vesting and conveying more fully and certainly in and to that co-trustee those
trusts, properties, remedies, powers, rights, duties, obligations, discretions,
privileges, claims, demands, causes of action, immunities, estates, titles,
interests and liens, that instrument or document shall be executed,
acknowledged and delivered, but not prepared, by the Issuer. In case any
co-trustee or a successor to it shall die, become incapable of acting, resign
or be removed, all of the trusts, properties, remedies, powers, rights, duties,
obligations, discretions, privileges, claims, demands, causes of action,
immunities, estates, titles, interests and liens of the co-trustee shall be
exercised by, vest in and be conveyed to the Trustee, to the extent permitted
by law, until the appointment of a successor to the co-trustee.
SECTION 5.6. Resignation by the Trustee. The Trustee may resign at any
time from the trusts created hereby by giving written notice of the resignation
to the Issuer, the Company, the Registrar and any Paying Agents of Senior Bonds
then outstanding and by mailing written notice of the resignation to the
Holders as their names and addresses appear on the Register at the close of
business fifteen days prior to the mailing. The resignation shall take effect
upon the appointment of a successor Trustee.
SECTION 5.7. Removal of the Trustee. (a) The Trustee may be removed at
any time by an instrument or document or concurrent instruments or documents in
writing delivered to the Trustee, with copies thereof mailed to the Issuer, the
Registrar and any Paying Agents, and signed (i) by or on behalf of the Holders
of not less than a majority in aggregate principal amount of the Senior Bonds
then outstanding, or (ii) as long as no Event of Default has occurred under the
Indenture, by the Issuer.
(b) The Trustee also may be removed at any time for any breach of
trust or for acting or proceeding in violation of, or for failing to act or
proceed in accordance with, any provision of this Indenture with respect to the
duties and obligations of the Trustee by any court of competent jurisdiction
upon the application of the Issuer or the Holders of not less than twenty
percent (20%) of the aggregate principal amount of the Senior Bonds then
outstanding under this Indenture.
(c) Any removal of the Trustee shall take effect upon the appointment
of a successor Trustee by the Issuer, the Holders or the court, respectively.
SECTION 5.8. Appointment of Successor Trustee. (a) If (i) the Trustee
shall resign, shall be removed, shall be dissolved, or shall become otherwise
incapable of acting
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hereunder, (ii) the Trustee shall be taken under the control of any public
officer or officers, or (iii) a receiver shall be appointed for the Trustee by
a court, then a successor Trustee shall be appointed by the Issuer, with the
written consent of the Company; provided, that if a successor Trustee is not so
appointed within ten days after (a) a notice of resignation or an instrument or
document of removal is received by the Issuer, as provided in Sections 5.6 and
5.7 hereof, respectively, or (b) the Trustee is dissolved, taken under control,
becomes otherwise incapable of acting or a receiver is appointed, in each case,
as provided above, then, so long as the Issuer shall not have appointed a
successor Trustee, the Holders of a majority in aggregate principal amount of
Senior Bonds then outstanding may designate a successor Trustee by an
instrument or document or concurrent instruments or documents in writing signed
by or on behalf of those Holders. If no appointment of a successor Trustee
shall be made pursuant to the foregoing provisions of this Section, the Holder
of any Senior Bond outstanding hereunder or any retiring Trustee may apply to
any court of competent jurisdiction to appoint a successor Trustee. Such court
may thereupon, after such notice, if any, as such court may deem proper,
appoint a successor Trustee.
(b) Every successor Trustee appointed pursuant to this Section (i)
shall be a trust company or a bank having the powers of a trust company (ii)
shall be in good standing within the State, (iii) shall be duly authorized to
exercise trust powers within the State, (iv) shall have a reported capital and
surplus of not less than $15,000,000 and (v) shall be willing to accept the
trusteeship under the terms and conditions of this Indenture.
(c) Every successor Trustee appointed hereunder shall execute and
acknowledge, and shall deliver to its predecessor, the Issuer, the Registrar,
any Paying Agent and the Company, an instrument or document in writing
accepting the appointment. Thereupon, without any further act, the successor
shall become vested with all of the trusts, properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands, causes
of action, immunities, estates, titles, interests and liens of its predecessor.
Upon the written request of its successor, the Issuer or the Company, the
predecessor Trustee (i) shall execute and deliver an instrument or document
transferring to its successor all of the trusts, properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands, causes
of action, immunities, estates, titles, interests and liens of the predecessor
Trustee hereunder, and (ii) shall take any other action necessary to duly
assign, transfer and deliver to its successor all property (including without
limitation, all securities and moneys) held by it as Trustee. Should any
instrument or document in writing from the Issuer be requested by any successor
Trustee for vesting and conveying more fully and certainly in and to that
successor the trusts, properties, remedies, powers, rights, duties,
obligations, discretions, privileges, claims, demands, causes of action,
immunities, estates, titles, interest and liens vested or conveyed or intended
to be vested or conveyed hereby in or to the predecessor Trustee, the Issuer
shall execute, acknowledge and deliver that instrument or document.
(d) In the event of a change in the Trustee, the predecessor Trustee
shall cease to be custodian of any moneys which it may hold pursuant to this
Indenture and shall cease to be Registrar and a Paying Agent for any of the
Senior Bonds, to the extent it served in any of those capacities. The successor
Trustee shall become custodian and, if applicable, Registrar and a Paying
Agent.
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SECTION 5.9. Adoption of Authentication. In case any of the Senior
Bonds shall have been authenticated, but shall not have been delivered, any
successor Trustee or Registrar may adopt the certificate of authentication of
any predecessor Trustee or Registrar and may deliver those Senior Bonds so
authenticated as provided herein. In case any Senior Bonds shall not have been
authenticated, any successor Trustee or Registrar may authenticate those Senior
Bonds either in the name of any predecessor or in its own name. In all cases,
the certificate of authentication shall have the same force and effect as
provided in the Senior Bonds or in this Indenture with respect to the
certificate of authentication of the predecessor Trustee or Registrar.
SECTION 5.10. Registrars.
(a) Succession. Anything herein to the contrary notwithstanding, any
corporation or association (i) into which a Registrar may be converted or
merged, (ii) with which a Registrar or any successor to it may be consolidated,
or (iii) to which it may sell or transfer its corporate trust assets as a whole
or substantially as a whole, or any corporation or association resulting from
any such conversion, merger, consolidation, sale or transfer, ipso facto, shall
be and become successor Registrar to that Registrar hereunder and shall be
vested with each and every power, right, duty, obligation, discretion and
privilege expressed or intended by this Indenture to be exercised by or vested
in the predecessor Registrar, without the execution or filing of any instrument
or document or any further act on the part of any of the parties hereto.
(b) Resignation. A Registrar may resign at any time by giving written
notice of its resignation to the Issuer, the Company, the Trustee, the Original
Purchaser and to each Paying Agent for the Senior Bonds, at least 60 days
before the resignation is to take effect. The resignation shall take effect
immediately, however, upon the appointment of a successor Registrar, if the
successor Registrar is appointed and accepts that appointment before the time
stated in the notice.
(c) Removal. The Registrar may be removed at any time by an instrument
or document or concurrent instruments or documents in writing delivered to the
Registrar, with copies thereof mailed to the Issuer, the Trustee and the
Company, and signed (i) by or on behalf of the Holders of not less than a
majority in aggregate principal amount of the Senior Bonds then outstanding, or
(ii) as long as no Event of Default has occurred under the Indenture, by the
Issuer.
(d) Appointment of Successors. (i) If (A) a Registrar shall resign,
shall be removed, shall be dissolved, or shall become otherwise incapable of
acting hereunder, (B) a Registrar shall be taken under the control of any
public officer or officers, (C) a receiver shall be appointed for a Registrar
by a court, or (D) a Registrar shall have an order for relief entered in any
case commenced by or against it under the federal bankruptcy laws or commence a
proceeding under any federal or state bankruptcy, insolvency, reorganization or
similar law, or have such a proceeding commenced against it and either have an
order of insolvency or reorganization entered against it or have the proceeding
remain undismissed and unstayed for ninety days, then a successor Registrar
shall be appointed by the Issuer and the Trustee; provided, that if a successor
Registrar is not so appointed within ten days after (a) a notice of resignation
or an instrument or document of removal is received by the Issuer, as provided
above, or (b) the
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Registrar is dissolved, taken under control, becomes incapable of acting or a
receiver is appointed, in each case, as provided above, then, if the Issuer
shall not have appointed a successor Registrar, the Trustee or the Holders of a
majority in aggregate principal amount of Senior Bonds then outstanding may
designate a successor Registrar by an instrument or document or concurrent
instruments or documents in writing signed by the Trustee, or in the case of
the Holders, by or on behalf of those Holders.
(ii) Every successor Registrar appointed hereunder shall
execute and acknowledge, and shall deliver to its predecessor, the
Issuer and the Trustee, an instrument or document in writing accepting
the appointment. Thereupon, without any further act, the successor
shall become vested with all of the properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands,
causes of action, immunities, titles and interest of its predecessor.
Upon the written request of its successor, the Issuer, a predecessor
Registrar (i) shall execute and deliver an instrument or document
transferring to its successor all of the properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands,
causes of action, immunities, titles and interests of it as
predecessor Registrar hereunder, and (ii) shall take any other action
necessary to duly assign, transfer and deliver to its successor all
property and records (including without limitation, the Register and
any cancelled Senior Bonds) held by it as Registrar. Should any
instrument or document in writing from the Issuer be requested by any
successor Registrar for vesting and conveying more fully and certainly
in and to that successor the properties, remedies, powers, rights,
duties, obligations, discretions, privileges, claims, demands, causes
of action, immunities, titles and interests vested or conveyed or
intended to be vested or conveyed hereby in or to a predecessor
Registrar, the Issuer shall execute, acknowledge and deliver that
instrument or document.
(e) Compensation and Other Applicable Provisions. The Trustee shall
pay to the Registrar from time to time reasonable compensation as authorized in
Section 5.2 hereof for its services, and the Trustee shall be entitled to be
reimbursed for such payments, subject to Section 5.2 hereof. The provisions of
Section 2.8 shall be applicable to the Registrar.
SECTION 5.11. Designation and Succession of Paying Agents. (a) The
Trustee shall be a Paying Agent for the Senior Bonds, and, with the consent of
the Issuer, the Trustee may appoint a Paying Agent or Agents with power to act
on its behalf and subject to its direction in the payment of Bond Service
Charges on the Senior Bonds. It is the responsibility of the Trustee to
establish the duties and responsibilities of any Paying Agent for the purposes
of this Indenture, to the extent not specified herein.
(b) Any corporation or association with or into which any Paying Agent
may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, consolidation or
conversion to which any Paying Agent shall be a party, or any corporation or
association succeeding to the corporate trust business of any Paying Agent,
shall be the successor of that Paying Agent hereunder, if that successor
corporation or association is otherwise eligible hereunder, without the
execution or filing of any paper or any further act on the part of the parties
hereto or the Paying Agent or that successor corporation or association.
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(c) Any Paying Agent may at any time resign by giving written notice
of resignation to the Trustee, to the Registrar and to the Issuer. The Trustee
may at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent, to the Registrar and to the Issuer.
Upon receiving such a notice of resignation or upon such termination, or in
case at any time any Paying Agent shall cease to be eligible under this
Section, the Trustee may appoint a successor Paying Agent. The Trustee shall
give written notice of appointment of a successor Paying Agent to the Issuer
and the Registrar and shall mail, within ten days after that appointment,
notice thereof to all Holders as their names and addresses appear on the
Register on the date of that appointment.
(d) The Trustee shall pay to any Paying Agent from time to time
reasonable compensation as authorized in Section 5.2 hereof for its services,
and the Trustee shall be entitled to be reimbursed for such payments, subject
to Section 5.2 hereof.
(e) The provisions of Section 2.8 shall be applicable to any Paying
Agent.
SECTION 5.12. Dealing in Senior Bonds. The Trustee, a Registrar and a
Paying Agent, their affiliates, and any directors, officers, partners,
employees or agents thereof, in good faith, may become the owners of Senior
Bonds secured hereby with the same rights which it or they would have hereunder
if the Trustee, the Registrar or Paying Agents did not serve in those
capacities.
SECTION 5.13. Representations and Covenants of Trustee. The Trustee
hereby represents that it is an [ALABAMA STATE BANKING CORPORATION] duly
organized and validly existing under the laws of the State of Alabama, in good
standing and duly authorized to exercise corporate trust powers in the State,
and that it has an unimpaired reported capital and surplus of not less than
$15,000,000. The Trustee covenants that it will take such action, if any, as is
necessary to remain in good standing and duly authorized to exercise corporate
trust powers in the State, and that it will maintain an unimpaired reported
capital and surplus of not less than $15,000,000.
[End of Article V]
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ARTICLE VI.
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND HOLDERS
SECTION 6.1. Defaults; Events of Default. The occurrence of any of the
following events is defined as and declared to be and to constitute an Event of
Default hereunder:
(a) Payment of any interest on any Senior Bond shall not be
made when and as that interest shall become due and payable, and the
failure to make such payment is not cured within two (2) Business Days
after written notice of such failure is received by the Issuer;
(b) Payment of the principal of or any premium on any Senior
Bond shall not be made when and as that principal or premium shall
become due and payable, whether at stated maturity, by redemption
(unless the notice of such redemption shall state that such redemption
is conditional upon the deposit of sufficient funds with the Trustee),
by acceleration or otherwise, and the failure to make such payment is
not cured within two (2) Business Days after written notice of such
failure is received by the Issuer;
(c) Failure by the Issuer to observe or perform any other
covenant, agreement or obligation on its part to be observed or
performed contained in this Indenture or in the Senior Bonds, which
failure shall have continued for a period of 60 days after written
notice, by registered or certified mail, to the Issuer specifying the
failure and requiring that it be remedied, which notice may be given
by the Trustee in its discretion and shall be given by the Trustee at
the written request of the Holders of not less than a majority in
aggregate principal amount of Senior Bonds then outstanding;
(d) The Issuer shall: (i) commence a proceeding under any
federal or state insolvency, reorganization or similar law, or have
such a proceeding commenced against it and either have an order of
insolvency or reorganization entered against it or have the proceeding
remain undismissed and unstayed for 90 days; or (ii) have a receiver,
conservator, liquidator or trustee appointed for it or for the whole
or any substantial part of its property.
The term "default" or "failure" as used in this Article means a
default or failure by the Issuer in the observance or performance of any of the
covenants, agreements or obligations on its part to be observed or performed
contained in this Indenture or in the Senior Bonds.
SECTION 6.2. Notice of Default. If an Event of Default shall occur,
the Trustee shall give written notice of the Event of Default, by registered or
certified mail, to the Issuer, the Registrar, any Paying Agent and the Holders
of the Senior Bonds, within ten days after the Trustee has knowledge of the
Event of Default, provided that such Event of Default shall not have been cured
to the knowledge of the Trustee.
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SECTION 6.3. Acceleration.
(i) Upon the occurrence of an Event of Default as specified
in paragraphs (a) and (b) of Section 6.1 hereof, the Trustee shall,
and upon the occurrence of any other Event of Default defined in said
Section 6.1, the Trustee may and upon the written request of the
Majority Holders shall declare, by a notice in writing delivered to
the Issuer, the principal of all Senior Bonds then outstanding (if not
then due and payable), together with interest accrued thereon, to be
due and payable immediately.
(ii) Any such declaration shall be by notice in writing to
the Issuer and, upon said declaration, principal and interest on all
Senior Bonds shall become and be immediately due and payable. The
Trustee immediately upon such declaration shall give notice thereof in
the same manner as provided in Section 3.3 hereof with respect to the
redemption of the Senior Bonds. Such notice shall specify, if known,
the date on which payment of principal and interest shall be tendered
to the Holders of the Senior Bonds. Interest shall accrue to the
payment date determined by the Trustee pursuant to such declaration or
the actual payment date, if later. Upon any declaration of
acceleration hereunder, the Trustee shall immediately exercise such
rights as it may have to declare all payments hereunder to be
immediately due and payable.
SECTION 6.4. Other Remedies; Rights of Holders. (a) With or without
taking action under Section 6.3 hereof, upon the occurrence and continuance of
an Event of Default, the Trustee may pursue any other available remedy to
enforce the payment of Bond Service Charges or the observance and performance
of any other covenant, agreement or obligation under this Indenture, or any
other instrument providing security, directly or indirectly, for the Senior
Bonds.
(b) If, upon the occurrence and continuance of an Event of Default
under Section 6.1 hereof, the Trustee is requested so to do by the Holders of
at least a majority in aggregate principal amount of Senior Bonds outstanding,
the Trustee (subject to the provisions of Sections 5.1 and 5.2) shall exercise
any rights and powers conferred by this Section and by Section 6.3 hereof.
(c) No remedy conferred upon or reserved to the Trustee (or to the
Holders) by this Indenture is intended to be exclusive of any other remedy.
Each remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or otherwise to the Trustee or to the Holders now or hereafter
existing.
(d) No delay in exercising or omission to exercise any remedy, right
or power accruing upon any default or Event of Default shall impair that
remedy, right or power or shall be construed to be a waiver of any default or
Event of Default or acquiescence therein. Every remedy, right and power may be
exercised from time to time and as often as may be deemed to be expedient.
(e) No waiver of any default or Event of Default hereunder, whether by
the Trustee or by the Holders, shall extend to or shall affect any subsequent
default or Event of Default or shall impair any remedy, right or power
consequent thereon.
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(f) In exercising any remedy, right or power hereunder, the Trustee
shall take any action which would best serve the interests of the Holders in
the judgment of the Trustee, applying the standards described in Sections 5.1
and 5.2 hereof.
SECTION 6.5. Appointment of Receivers. Upon the occurrence of an Event
of Default, and upon the filing of a suit or other commencement of judicial
proceedings to enforce the rights of the Trustee and the Senior Bondholders
under this Indenture, the Trustee shall be entitled, as a matter of right, to
the appointment of a receiver or receivers of the Trust Estate and of the
revenues, earnings, income, products and profits thereof, pending such
proceedings, with such powers as the court making such appointment shall
confer.
SECTION 6.6. Right of Holders to Direct Proceedings. Anything to the
contrary in this Indenture notwithstanding, the Holders of a majority in
aggregate principal amount of Senior Bonds then outstanding shall have the
right at any time to direct, by an instrument or document or instruments or
documents in writing executed and delivered to the Trustee, the method and
place of conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture or any other
proceedings hereunder and any settlement thereof; provided, that (i) any
direction shall not be other than in accordance with the provisions of law and
of this Indenture, (ii) the Trustee shall be indemnified as provided in
Sections 5.1 and 5.2 and, (iii) the Trustee may take any other action which it
deems to be proper and which is not inconsistent with the direction.
SECTION 6.7. Application of Moneys. After payment of any costs,
expenses, liabilities and advances paid, incurred or made by the Trustee in the
collection of moneys pursuant to any right given or action taken under the
provisions of this Article (including without limitation, reasonable attorneys'
fees and expenses, except as limited by law or judicial order or decision
entered in any action taken under this Article VI), all moneys received by the
Trustee, shall be applied as follows, subject to any provision made pursuant to
Sections 3.4 or 4.5 hereof:
(a) unless the principal of all of the Senior Bonds shall
have become, or shall have been declared to be, due and payable, all
of those moneys shall be deposited in the Bond Fund and shall be
applied;
First-To the payment to the Holders entitled thereto of all
installments of interest then due on the Senior Bonds, in the order of
the dates of maturity of the installments of that interest, beginning
with the earliest date of maturity and if the amount available is not
sufficient to pay in full any particular installment, then to the
payment thereof ratably, according to the amounts due on that
installment, to the Holders entitled thereto, without any
discrimination or privilege, except as to any difference in the
respective rates of interest specified in the Senior Bonds; and
Second-To the payment to the Holders entitled thereto of the
unpaid principal of any of the Senior Bonds which shall have become
due (other than Senior Bonds previously called for redemption for the
payment of which moneys are held pursuant to the provisions of this
Indenture), whether at stated maturity, by redemption or otherwise, in
the order of their due dates, beginning with the earliest due date,
with interest on those
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Senior Bonds from the respective dates upon which they become due at
the rates specified in those Senior Bonds, and if the amount available
is not sufficient to pay in full all Senior Bonds due on any
particular date, together with that interest, then to the payment
thereof ratably, according to the amounts of principal due on that
date, to the Holders entitled thereto, without any discrimination or
privilege, except as to any difference in the respective rates of
interest specified in the Senior Bonds.
(b) If the principal of all of the Senior Bonds shall have become due
or shall have been declared to be due and payable pursuant to this Article, all
of those moneys shall be deposited into the Senior Bond Fund and shall be
applied to the payment of the principal and interest then due and unpaid upon
the Senior Bonds, without preference or priority of principal over interest, of
interest over principal, of any installment of interest over any other
installment of interest, or of any Senior Bond over any other Senior Bond,
ratably, according to the amounts due respectively for principal and interest,
to the Holders entitled thereto, without any discrimination or privilege,
except as to any difference in the respective rates of interest specified in
the Senior Bonds.
(c) Whenever moneys are to be applied pursuant to the provisions of
this Section, those moneys shall be applied at such times, and from time to
time, as the Trustee shall determine, having due regard to the amount of moneys
available for application and the likelihood of additional moneys becoming
available for application in the future. Whenever the Trustee shall direct the
application of those moneys, it shall fix the date upon which the application
is to be made, and upon that date, interest shall cease to accrue on the
amounts of principal, if any, to be paid on that date, provided the moneys are
available therefor. The Trustee shall give notice of the deposit with it of any
moneys and of the fixing of that date, and shall not be required to make
payment of principal of and any premium on a Senior Bond to the Holder thereof,
until the Senior Bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if it is paid fully.
SECTION 6.8. Remedies Vested in Trustee. All rights of action
(including without limitation, the right to file proof of claims) under this
Indenture or under any of the Senior Bonds may be enforced by the Trustee
without the possession of any of the Senior Bonds or the production thereof in
any trial or other proceeding relating thereto. Any suit or proceeding
instituted by the Trustee shall be brought in its name as Trustee without the
necessity of joining any Holders as plaintiffs or defendants. Any recovery of
judgment shall be for the benefit of the Holders of the outstanding Senior
Bonds, subject to the provisions of this Indenture.
SECTION 6.9. Rights and Remedies of Holders. A Holder shall not have
any right to institute any suit, action or proceeding for the enforcement of
this Indenture, for the execution of any trust hereof, or for the exercise of
any other remedy hereunder, unless:
(a) there has occurred and is continuing an Event of Default
of which the Trustee has been properly notified or of which it is
deemed to have notice under Section 5.1 hereof,
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(b) the Holders of at least a majority in aggregate principal
amount of Senior Bonds then outstanding shall have made written
request to the Trustee and shall have afforded the Trustee reasonable
opportunity to proceed to exercise the remedies, rights and powers
granted herein or to institute the suit, action or proceeding in its
own name, and shall have offered indemnity to the Trustee as provided
in Sections 5.1 and 5.2 hereof, and
(c) the Trustee thereafter shall have failed or refused to
exercise the remedies, rights and powers granted herein or to
institute the suit, action or proceeding in its own name.
At the option of the Trustee, that notification (or notice), request,
opportunity and offer of indemnity are conditions precedent in every case to
the institution of any suit, action or proceeding described above. Anything in
the foregoing to the contrary notwithstanding, no Holder of any Senior Bond
shall have any right to institute any suit, action or proceeding at law or in
equity for the enforcement of this Indenture or for the execution of any trust
hereof or for the appointment of a receiver or any other remedy hereunder.
No one or more Holders of the Senior Bonds shall have any right to
affect, disturb or prejudice in any manner whatsoever the security or benefit
of this Indenture by its or their action, or to enforce, except in the manner
provided herein, any remedy, right or power hereunder. Any suit, action or
proceedings shall be instituted, had and maintained in the manner provided
herein for the benefit of the Holders of all Senior Bonds then outstanding.
Nothing in this Indenture shall affect or impair, however, the right of any
Holder to enforce the payment of the Bond Service Charges on any Senior Bond
owned by that Holder at and after the maturity thereof, at the place, from the
sources and in the manner expressed in that Senior Bond.
SECTION 6.10. Termination of Proceedings. In case the Trustee shall
have proceeded to enforce any remedy, right or power under this Indenture in
any suit, action or proceedings, and the suit, action or proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, the Issuer, the Trustee and the Holders shall be
restored to their former positions and rights hereunder, respectively, and all
rights, remedies and powers of the Trustee shall continue as if no suit, action
or proceedings had been taken.
SECTION 6.11. Waivers of Events of Default. Except as hereinafter
provided, the Trustee, by notice to the Company and the Issuer, may waive any
Event of Default hereunder and its consequences and may rescind and annul any
declaration of maturity of principal of the Senior Bonds.
There shall not be so waived, however, any Event of Default described
in paragraph (a) or (b) of Section 6.1 hereof except with the written consent
of the Holders of all Senior Bonds then outstanding nor shall any declaration
of acceleration in connection therewith be rescinded or annulled except with
the written consent of the Holders of at least 66 2/3% of the principal amount
of Senior Bonds outstanding. In the case of the waiver or rescission and
annulment, or in case any suit, action or proceedings taken by the Trustee on
account of any Event of Default shall have been discontinued, abandoned or
determined adversely to it, the Issuer, the Trustee
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and the Holders shall be restored to their former positions and rights
hereunder, respectively. No waiver or rescission shall extend to any subsequent
or other Event of Default or impair any right consequent thereon.
(End of Article VI)
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ARTICLE VII.
SUPPLEMENTAL INDENTURES
SECTION 7.1. Supplemental Indentures Generally. The Issuer and the
Trustee may enter into indentures supplemental to this Indenture, as provided
in this Article and pursuant to the other provisions therefor in this
Indenture, including particularly, Section 2.1 hereof.
SECTION 7.2. Supplemental Indentures Not Requiring Consent of Holders.
Without the consent of, or notice to, any of the Holders, the Issuer and the
Trustee may enter into indentures supplemental to this Indenture which shall
not, in the opinion of the Issuer and the Trustee, be inconsistent with the
terms and provisions hereof for any one or more of the following purposes:
(a) To cure any ambiguity, inconsistency or formal defect or
omission in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority that
lawfully may be granted to or conferred upon the Holders or the
Trustee;
(c) To assign additional revenues under this Indenture;
(d) To accept additional security and instruments and
documents of further assurance;
(e) To add to the covenants, agreements and obligations of
the Issuer under this Indenture, other covenants, agreements and
obligations to be observed for the protection of the Holders, or to
surrender or limit any right, power or authority reserved to or
conferred upon the Issuer in this Indenture;
(f) To evidence any succession to the Issuer and the
assumption by its successor of the covenants, agreements and
obligations of the Issuer under this Indenture and the Senior Bonds;
(g) To permit the use of a book entry system to identify the
owner of an interest in an obligation issued by the Issuer under this
Indenture, whether that obligation was formerly, or could be,
evidenced by a tangible security;
(h) To permit the Trustee to comply with any obligations
imposed upon it by law;
(i) To specify further the duties and responsibilities of,
and to define further the relationship among, the Trustee, the
Registrar and any Paying Agents;
(j) To achieve compliance of this Indenture with any
applicable federal securities or tax law; and
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(k) To permit any other amendment which, in the judgment of
the Trustee, is not to the prejudice of the Trustee or the Holders.
The provisions of Subsections 7.2(h) and (j) shall not be deemed to
constitute a waiver by the Trustee, the Registrar, the Issuer or any Holder of
any right which it may have in the absence of those provisions to contest the
application of any change in law to this Indenture or the Senior Bonds.
SECTION 7.3. Indentures Requiring Consent of Holders. (a) Exclusive of
Supplemental Indentures to which reference is made in Section 7.2 hereof and
subject to the terms, provisions and limitations contained in this Section, and
not otherwise, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Senior Bonds at the time outstanding,
evidenced as provided in this Indenture, the Issuer and the Trustee may execute
and deliver Supplemental Indentures adding any provisions to, changing in any
manner or eliminating any of the provisions of this Indenture or any
Supplemental Indenture or restricting in any manner the rights of the Holders.
Nothing in this Section 7.3 or Section 7.2 hereof shall permit, however, or be
construed as permitting:
(i) without the consent of the Holder of each Senior Bond so
affected, (i) an extension of the maturity of the principal of or the
interest on any Senior Bond, or (ii) a reduction in the principal
amount of any Senior Bond or the rate of interest or premium thereon;
or
(ii) without the consent of the Holders of all Senior Bonds
so affected, (i) the creation of a privilege or priority of any Senior
Bond or Senior Bonds over any other Senior Bond or Senior Bonds, or
(ii) a reduction in the aggregate principal amount of the Senior Bonds
required for consent to a Supplemental Indenture.
(b) If the Issuer shall request that the Trustee execute and deliver
any Supplemental Indenture for any of the purposes of this Section, upon being
satisfactorily indemnified with respect to its expenses in connection
therewith, the Trustee shall cause notice of the proposed execution and
delivery of the Supplemental Indenture to be mailed by first class mail,
postage prepaid, to all Holders of Senior Bonds then outstanding at their
addresses as they appear on the Register at the close of business on the
fifteenth day preceding that mailing.
(c) The Trustee shall not be subject to any liability to any Holder by
reason of the Trustee's failure to mail, or the failure of any Holder to
receive, the notice required by this Section. Any failure of that nature shall
not affect the validity of the Supplemental Indenture when there has been
consent thereto as provided in this Section. The notice shall set forth briefly
the nature of the proposed Supplemental Indenture and shall state that copies
thereof are on file at the principal corporate trust office of the Trustee for
inspection by all Holders.
(d) If the Trustee shall receive, within a period prescribed by the
Issuer, of not less than 60 days, but not exceeding one year, following the
mailing of the notice, an instrument or document or instruments or documents,
in form to which the Trustee does not reasonably object, purporting to be
executed by the Holders of not less than a majority in aggregate principal
amount of the Senior Bonds then outstanding (which instrument or document or
instruments or
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documents shall refer to the proposed Supplemental Indenture in the form
described in the notice and specifically shall consent to the Supplemental
Indenture in substantially that form), the Trustee shall, but shall not
otherwise, execute and deliver the Supplemental Indenture in substantially the
form to which reference is made in the notice as being on file with the
Trustee, without liability or responsibility to any Holder, regardless of
whether that Holder shall have consented thereto.
(e) Any consent shall be binding upon the Holder of the Senior Bond
giving the consent and, anything herein to the contrary notwithstanding, upon
any subsequent Holder of that Senior Bond and of any Senior Bond issued in
exchange therefor (regardless of whether the subsequent Holder has notice of
the consent to the Supplemental Indenture). A consent may be revoked in
writing, however, by the Holder who gave the consent or by a subsequent Holder
of the Senior Bond by a revocation of such consent received by the Trustee
prior to the execution and delivery by the Trustee of the Supplemental
Indenture. At any time after the Holders of the required percentage of Senior
Bonds shall have filed their consents to the Supplemental Indenture, the
Trustee shall make and file with the Issuer a written statement that the
Holders of the required percentage of Senior Bonds have filed those consents.
That written statement shall be conclusive evidence that the consents have been
so filed.
(f) If the Holders of the required percentage in aggregate principal
amount of Senior Bonds outstanding shall have consented to the Supplemental
Indenture, as provided in this Section, no Holder shall have any right (a) to
object to (i) the execution or delivery of the Supplemental Indenture, (ii) any
of the terms and provisions contained therein, or (iii) the operation thereof,
(b) to question the propriety of the execution and delivery thereof, or (c) to
enjoin or restrain the Trustee or the Issuer from that execution or delivery or
from taking any action pursuant to the provisions thereof.
SECTION 7.4. Authorization to Trustee; Effect of Supplement. The
Trustee is authorized to join with the Issuer in the execution and delivery of
any Supplemental Indenture in accordance with this Article and to make the
further agreements and stipulations which may be contained therein. Thereafter,
(a) that Supplemental Indenture shall form a part of this Indenture;
(b) all terms and conditions contained in that Supplemental Indenture
as to any provision authorized to be contained therein shall be deemed to be a
part of the terms and conditions of this Indenture for any and all purposes;
(c) this Indenture shall be deemed to be modified and amended in
accordance with the Supplemental Indenture; and
(d) the respective rights, duties and obligations under this Indenture
of the Issuer, the Trustee, the Registrar, the Paying Agents, and all Holders
of Senior Bonds then outstanding shall be determined, exercised and enforced
hereunder in a manner which is subject in all respects to those modifications
and amendments made by the Supplemental Indenture.
Express reference to any executed and delivered Supplemental Indenture may be
made in the text of any Senior Bonds issued thereafter, if that reference is
deemed necessary or desirable by the
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Trustee or the Issuer. A copy of any Supplemental Indenture for which provision
is made in this Article, except a Supplemental Indenture described in clause
(g) of Section 7.2 hereof, shall be mailed by the Trustee to the Registrar and
each Paying Agent. The Trustee shall not be required to execute any
Supplemental Indenture containing provisions adverse to the Trustee.
SECTION 7.5. Opinion of Counsel. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, the opinion of any
counsel approved by it as conclusive evidence that (i) any proposed
Supplemental Indenture complies with the provisions of this Indenture, and (ii)
it is proper for the Trustee to join in the execution of that Supplemental
Indenture under the provisions of this Article. That counsel may be counsel for
the Issuer.
SECTION 7.6. Modification by Unanimous Consent. Notwithstanding
anything contained elsewhere in this Indenture, the rights and obligations of
the Issuer and of the Holders, and the terms and provisions of the Senior Bonds
and this Indenture or any Supplemental Indenture, may be modified or altered in
any respect with the consent of (i) the Issuer, (ii) the Holders of all of the
Senior Bonds then outstanding.
(End of Article VII)
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ARTICLE VIII.
DEFEASANCE
SECTION 8.1. Release of Indenture. If (i) the Issuer shall pay all of
the outstanding Senior Bonds, or shall cause them to be paid and discharged, or
if there otherwise shall be paid to the Holders of the outstanding Senior
Bonds, all Bond Service Charges due or to become due thereon, and (ii)
provision also shall be made for the payment of all other sums payable
hereunder, then this Indenture shall cease, determine and become null and void
(except for those provisions surviving by reason of Section 8.3 hereof in the
event the Senior Bonds are deemed paid and discharged pursuant to Section 8.2
hereof), and the covenants, agreements and obligations of the Issuer hereunder
shall be released, discharged and satisfied.
Thereupon, and subject to the provisions of Section 8.3
hereof if applicable,
(i) the Trustee shall release this Indenture (except for
those provisions surviving by reason of Section 8.3 hereof in the
event the Senior Bonds are deemed paid and discharged pursuant to
Section 8.2 hereof), and shall execute and deliver to the Issuer any
instruments or documents in writing as shall be requisite to evidence
that release and discharge or as reasonably may be requested by the
Issuer, and
(ii) the Trustee and any other Paying Agents shall assign and
deliver to the Issuer any property subject at the time to the lien of
this Indenture which then may be in their possession, except amounts
in the Senior Bond Fund required (a) to be paid to the Issuer under
Section 4.5 hereof, or (b) to be held by the Trustee and the Paying
Agents under Section 8.2 hereof or otherwise for the payment of Bond
Service Charges.
SECTION 8.2. Payment and Discharge of Senior Bonds. (a) All or any
part of the Senior Bonds shall be deemed to have been paid and discharged
within the meaning of this Indenture, including without limitation, Section 8.1
hereof, if:
(i) the Trustee as paying agent and any Paying Agents shall
have received, in trust for and irrevocably committed thereto,
sufficient moneys, or
(ii) the Trustee shall have received, in trust for and
irrevocably committed thereto, noncallable Government Obligations
which are certified by an independent public accounting firm of
national reputation to be of such maturities or redemption dates and
interest payment dates, and to bear such interest, as will be
sufficient together with any moneys to which reference is made in
subparagraph (a) above, without further investment or reinvestment of
either the principal amount thereof or the interest earnings therefrom
(which earnings are to be held likewise in trust and so committed,
except as provided herein),
for the payment of all Bond Service Charges on those Senior Bonds, at their
maturity or redemption date, as the case may be, or if a default in payment
shall have occurred on any maturity or redemption date, then for the payment of
all Bond Service Charges thereon to the date of the tender of payment;
provided, if any of those Senior Bonds are to be redeemed prior to
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the maturity thereof, notice of that redemption shall have been duly given or
irrevocable provision satisfactory to the Trustee shall have been duly made for
the giving of that notice.
(b) Any moneys held by the Trustee in accordance with the provisions
of this Section may be invested by the Trustee only in noncallable Government
Obligations having maturity dates, or having redemption dates which, at the
option of the holder of those obligations, shall be not later than the date or
dates at which moneys will be required for the purposes described above. To the
extent that any income or interest earned by, or increment to, the investments
held under this Section is determined from time to time by the Trustee to be in
excess of the amount required to be held by the Trustee for the purposes of
this Section, that income, interest or increment shall be transferred at the
time of that determination in the manner provided in Section 4.5 hereof for
transfers of amounts remaining in the Bond Fund.
(c) If any Senior Bonds shall be deemed paid and discharged pursuant
to this Section 8.2, then within 15 days after such Senior Bonds are so deemed
paid and discharged the Trustee shall cause a written notice by first class
mail, postage prepaid, to be given to each Holder thereof as shown on the
Register on the date on which such Senior Bonds are deemed paid and discharged.
Such notice shall state the numbers of the Senior Bonds deemed paid and
discharged or state that all Senior Bonds of a particular series are deemed
paid and discharged, set forth a description of the obligations held pursuant
to subparagraph (b) of the first paragraph of this Section 8.2 and specify any
date or dates on which any of the Senior Bonds are to be called for redemption
pursuant to notice of redemption given or irrevocable provisions made for such
notice pursuant to the first paragraph of this Section 8.2.
SECTION 8.3. Survival of Certain Provisions. Notwithstanding the
foregoing, any provisions of this Indenture which relate to the maturity of
Senior Bonds, interest payments and dates thereof, optional and mandatory
redemption provisions, exchange, transfer and registration of Senior Bonds,
replacement of mutilated, destroyed, lost or stolen Senior Bonds, the
safekeeping and cancellation of Senior Bonds, non-presentment of Senior Bonds,
the holding of moneys in trust, and repayments to the Issuer from the Senior
Bond Fund and the duties of the Trustee and the Registrar in connection with
all of the foregoing, shall remain in effect and be binding upon the Trustee,
the Registrar, Paying Agents and the Holders notwithstanding the release and
discharge of this Indenture. The provisions of this Article shall survive the
release, discharge and satisfaction of this Indenture.
(End of Article VIII)
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ARTICLE IX.
COVENANTS AND AGREEMENTS
OF THE ISSUER
SECTION 9.1. Covenants and Agreements of the Issuer. In addition to
any other covenants and agreements of the Issuer contained in this Indenture,
the Issuer further covenants and agrees with the Holders and the Trustee as
follows:
(a) Payment of Bond Service Charges. The Issuer will pay all
Bond Service Charges, or cause them to be paid, solely from the
sources provided herein, on the dates, at the places and in the manner
provided in this Indenture.
(b) Revenues and Assignment of Revenues. The Issuer will not
assign the Pledged Revenues or create or authorize to be created any
debt, lien or charge thereon, other than the assignment thereof under
this Indenture and as otherwise permitted by this Indenture.
(c) Recordings and Filings. At its own expense, the Issuer
will cause this Indenture and any related instrument or documents
relating to the assignment made by it under this Indenture to secure
the Senior Bonds, to be recorded and filed in the manner and in the
places which may be required by law in order to preserve and protect
fully the security of the Holders and the rights of the Trustee
hereunder.
(d) Inspection of Landfill Books. All books, instruments and
documents in the Issuer's possession relating to the Landfill and the
Pledged Revenues shall be open to inspection and copying at all times
during the Issuer's regular business hours by any accountants or other
agents of the Trustee which the Trustee may designate from time to
time.
(e) Registrar. At reasonable times and under reasonable
regulations established by the Registrar, the Register may be
inspected and copied by the Trustee, by Holders of twenty-five percent
or more in principal amount of the Senior Bonds then outstanding, or a
designated representative thereof.
SECTION 9.2. Observance and Performance of Covenants, Authority and
Actions. The Issuer will observe and perform faithfully at all times all
covenants, agreements, authority, actions, undertakings, stipulations and
provisions to be observed or performed on its part under the Indenture and the
Senior Bonds which are executed, authenticated and delivered under this
Indenture, and under all proceedings of the Issuer pertaining thereto.
The Issuer represents and warrants that
(a) It is duly authorized under its articles of
incorporation, bylaws and by resolution of its board of directors to
issue the Senior Bonds, to execute and deliver this Indenture and to
provide the security for payment of the Bond Service Charges in the
manner and to the extent set forth in this Indenture.
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(b) All actions required on its part to be performed for the
issuance, sale and delivery of the Senior Bonds and for the execution
and delivery of this Indenture have been or will be taken duly and
effectively.
(c) The Senior Bonds will be valid and enforceable special
obligations of the Issuer according to their terms.
SECTION 9.3. Enforcement of Issuer's Obligations. Each obligation of
the Issuer required to be undertaken pursuant to this Indenture and the Senior
Bonds is binding upon the Issuer, and upon each officer or employee thereof as
may have from time to time the authority under law to take any action on behalf
of the Issuer which may be necessary to perform all or any part of that
obligation, as a duty of the Issuer.
SECTION 9.4. Priority of Pledge. The pledge herein made of the Pledged
Revenues and any other revenues and receipts from the Landfill shall be prior
and superior to any pledge thereof hereafter made for the benefit of any other
securities hereafter issued or any contract hereafter made by the Issuer. In
the event that the Issuer should hereafter issue any other securities payable,
in whole or in part, out of the revenues or receipts to be derived from the
Landfill or for which any part of said revenues or receipts may be pledged or
any part of the Landfill may be mortgaged, or in the event the Issuer should
hereafter make any contract payable, in whole or in part, out of said revenues
and receipts or for which any part of said revenues and receipts may be pledged
or any part of the Landfill may be mortgaged, the Issuer will, in the
proceedings under which any such securities or contract are hereafter
authorized, recognize the priority of the pledge of said revenues and receipts
made herein for the benefit of the Senior Bonds.
SECTION 9.5. Maintenance, Repairs, Changes, Alterations, Taxes and
Other Charges. The Issuer will continuously maintain the Landfill in good
operating condition (reasonable wear and tear excepted), making from time to
time all necessary and proper renewals thereof and repairs and replacements
thereto (including, without limitation, exterior and structural repairs,
renewals and replacements), or the Issuer will cause the Landfill and said
improvements to be so maintained and such repairs and replacements to be so
made.
The Issuer will pay, or will cause to be paid, (a) all taxes and
governmental charges of any kind whatsoever that may be lawfully assessed or
levied against or with respect to the Landfill or any part thereof including,
without limiting the generality of the foregoing, any taxes levied upon or with
respect to the Landfill (or the receipts, income or profits of the Issuer
therefrom) which, if not paid, would become a lien on the Landfill prior to or
on a parity with the lien of the Indenture or a charge on the revenues and
receipts therefrom prior to or on a parity with the charge thereon and the
pledge and assignment thereof created and made in the Indenture, (b) all
utility and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Landfill, and (c) all assessments and charges
lawfully made by any governmental body for public improvements that may be
secured by a lien on the Landfill; provided, however, that with respect to
special assessments or other governmental charges that may lawfully be paid in
installments over a period of years, the Issuer shall be obligated to pay, or
cause to be paid, only such installments as come due while any part of the
principal of and the interest (and premium, if any) on the Senior Bonds remains
outstanding and unpaid. The Issuer
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may, however, defer or cause to be deferred payment of any such taxes, charges
or assessments pending the bona fide contest thereof unless the Trustee shall
be of the opinion that by such action the lien of the Indenture as to any part
of the Landfill shall be endangered or the Landfill or any part thereof shall
be subject to loss or forfeiture, in which event any such payment then due
shall not be deferred.
SECTION 9.6. Sale of Landfill Prohibited Except Under Certain
Conditions. The Issuer will not, except as permitted or contemplated hereby,
hereafter sell or otherwise dispose of the whole or any part of the Landfill
until the principal of and the interest (and premium, if any) on all the Senior
Bonds have been paid in full, or unless and until provision for such payment
has been made.
SECTION 9.7. Freedom of Landfill from Prior Liens. The Issuer will
keep the Landfill free from all liens and encumbrances (other than Permitted
Encumbrances), but it may defer payment pending the bona fide contest of any
claim unless the Trustee shall be of the opinion that by such action the lien
of the Indenture as to any part of the Landfill shall be materially endangered
or the Landfill or any part thereof shall be subject to loss or forfeiture, in
which event any such payment then due shall not be deferred. Nothing herein
contained shall be construed to prevent the Issuer from hereafter purchasing
(with funds other than the proceeds of the Senior Bonds), for use in connection
with or as a part of the Landfill, additional property on conditional or lease
sale contract or subject to vendor's lien or purchase money mortgage, and as to
all property so purchased, the Indenture shall be subject and subordinate to
such conditional or lease sale contract, vendor's lien or purchase money
mortgage.
SECTION 9.8. Payment of Trustee Charges. The Issuer will discharge,
pay or satisfactorily provide to the Trustee, or cause to be discharged, paid
or provided, all liabilities, expenses and advances reasonably incurred,
disbursed or made by the Trustee in the execution of the trusts hereby created
(including the reasonable compensation and expenses and disbursements of its
counsel and of all other persons not regularly in its employ), and it will from
time to time pay to the Trustee, or cause to be paid, reasonable compensation
for its services hereunder, including extra compensation for unusual or
extraordinary services. All such liabilities, expenses, advances and
compensation shall be secured hereby, shall be entitled to priority of payment
over the principal of and the interest (and premium, if any) on the Senior
Bonds and shall bear interest until paid at (a) an annual rate equal to the
Interest Rate for Advances, or (b) the highest annual rate then permitted under
the laws of the State of Alabama (whichever of the foregoing (a) or (b) is
less), from and after the respective dates thirty (30) days following the
respective dates on which the Trustee makes demand for the payment thereof.
SECTION 9.9. To Record and to Grant Further Assurances. The Issuer
will file the Indenture (or an appropriate notice thereof), and all
Supplemental Indentures hereafter executed (or appropriate notices thereof), in
such public office or offices in which said documents are required by law to be
filed in order to constitute constructive notice thereof and to preserve and
protect fully the rights and security afforded thereby to the Trustee and to
the Holders of the Senior Bonds. In addition, the Issuer
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(a) will, upon reasonable request, execute and deliver such
further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectually the purpose of the
Indenture, and in particular (without in any way limiting the
generality of the foregoing) to make subject to the charge or lien
hereof (1) the revenues from any property hereafter acquired as a part
of the Landfill, or (2) other Pledged Revenues, to transfer to any
successor Trustee or Trustees the assets, powers, instruments and
funds held in trust hereunder and to confirm the lien of the Indenture
with respect to any Senior Bonds issued hereunder, and
(b) will take all actions that at the time and from time to
time may be necessary (or, in the opinion of the Trustee, may be
necessary) to perfect, preserve, protect and secure the interests of
the Issuer and the Trustee, or either, in and to the Pledged Revenues,
including, without limitation, the filing of all financing and
continuation statements that may at the time be required under the
Alabama Uniform Commercial Code.
No failure to request such further instruments or further acts shall be deemed
a waiver of any right to the execution and delivery of such instruments or the
doing of such acts or be deemed to affect the interpretation of any provisions
of the Indenture.
SECTION 9.10. Insurance Required. The Issuer will, not later than the
date of delivery of this Indenture, provide and thereafter continuously
maintain in effect or cause to be provided and thereafter continuously
maintained in effect, insurance with respect to the Landfill against such
risks, with such limits and deductibles and to such extent, as are customarily
insured against by businesses owning and operating construction and demolition
disposal facilities similar in size and character to the Landfill, paying (or
causing to be paid) as the same become due all premiums with respect thereto,
including, but not necessarily limited to:
(a) Insurance against loss or damage to the Landfill and any other
improvements at the time situated at the Landfill by fire, lightning or other
casualty, including malicious mischief or vandalism, with uniform standard
extended coverage endorsement limited only as may be provided in the standard
form of extended coverage endorsement at the time in use in the applicable
state, to the extent of such amount as is necessary to provide for full payment
of the costs of repairing or replacing the property damaged or destroyed or, if
insurance to such extent is not available, to the extent of the full insurable
value (as determined by a recognized insurer) of the Landfill and any other
such improvements, with a deductible not to exceed $__________;
(b) If there are any boilers or pressure vessels located at the
Landfill, boiler or pressure vessel insurance in an amount customarily carried
in the case of industrial operations similar to those at the Landfill;
(c) Comprehensive general liability insurance against liability for
personal or bodily injury to or death of persons and for damage to or loss of
property occurring on or about the site of the Landfill or in any way related
to the operations being conducted at the Landfill or in or about the Landfill,
in the minimum amounts of $1,000,000 for total death and bodily injury claims
and for property damage resulting from any one accident or occurrence; and
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(d) Workmen's compensation coverage, disability benefits insurance and
any other type of insurance required by the laws of the applicable state.
All policies evidencing the insurance required by the terms of the
preceding paragraph shall be taken out and maintained in generally-recognized
responsible insurance companies, qualified under the laws of South Carolina to
assume the respective risks undertaken and shall contain an agreement on the
part of the insurer issuing such policy that the same shall not be cancelled by
such insurer unless thirty (30) days' prior written notice of such cancellation
shall have been given to the Trustee. All such insurance policies, other than
those evidencing the insurance required by subparagraph (c) of the preceding
paragraph and such other policies or portions thereof as may evidence insurance
against liability for injury to persons or property of others, shall name as
insured the Trustee and shall contain standard mortgage clauses providing for
all losses in excess of $100,000 to be paid to the Trustee; provided, however,
that all losses (including those in excess of $100,000) may be adjusted by the
Issuer, subject, in the case of any single loss in excess of $100,000, to the
approval of the Trustee. Policies, binders or certificates evidencing the
insurance required to be carried by this Section 9.10 shall be deposited with
the Trustee. Prior to the expiration or cancellation of any such policy, the
Issuer will furnish to the Trustee evidence reasonably satisfactory to the
Trustee that such policy has been renewed or replaced by another policy or that
there is no necessity therefor under this Indenture. Anything herein to the
contrary notwithstanding, any insurance required by the provisions hereof may
be evidenced by a blanket policy covering risks in addition to those hereby
required to be covered, but if and only if appropriate allocation certificates
and loss payable endorsements are furnished to the Trustee. All insurance
required herein shall name the Trustee as additional insured parties. All
policies issued hereunder shall contain a provision that notice in writing be
given to the Trustee by the insurer at least thirty (30) days prior to any
modification or cancellation of the policy.
SECTION 9.11. Maintenance of Corporate Existence; Consolidation or
Merger.
(a) Until payment in full of the Senior Bonds, the Issuer shall
maintain its existence, will not transfer all or substantially all of its
assets and will not consolidate with or merge into another corporation, without
the express written consent of the Bondholders of a majority in principal
amount of the Senior Bonds; provided, however, the Issuer may, without the
prior written consent of the Majority Holders, consolidate with or merge into
any direct or indirect wholly-owned subsidiary of the Issuer or the Company,
and may consolidate with or merge into another corporation or transfer all or
substantially all of its assets and if desired, thereafter dissolve and
terminate its existence, but only on the condition that (a) the resulting
corporation or transferee as applicable, shall expressly assume and agree in
writing to perform all of the Issuer's obligations under this Indenture, and is
duly qualified to do business in the State, (b) the resulting corporation or
transferee, as applicable, has a consolidated net worth, determined in
accordance with generally accepted accounting principles, equal to or greater
than the consolidated worth of the Issuer immediately prior to such
consolidation or merger or transfer and (c) the resulting corporation or
transferee, as applicable, shall not have any unresolved legal or
administrative proceedings pending before any court or other tribunal, the
results of which could materially and adversely affect such corporation's or
transferee's net worth, its ability to assume the Issuer's obligation under
this Indenture, or its ability to operate the Landfill.
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(b) In the event a transfer of assets under this Section is made to a
corporation, such corporation may thereafter, transfer all or substantially all
of its assets to another corporation, or consolidate with or merge into another
corporation, or permit one or more other corporations to consolidate with or
merge into it, but only on the condition that the surviving or resulting
corporation or transferee satisfies the requirements of the preceding paragraph
of this Section.
(c) If a transfer of assets, consolidation or merger is made as
provided in this Section, the provisions of this Section shall continue in full
force and effect and no further such transfer of assets, consolidation or
merger shall be made except in compliance with the provisions of this Section.
(d) At least 30 days prior to any transfer of assets, consolidation or
merger under this Section, the transferee or surviving or resulting entity
shall provide written notice of such proposed event to the Issuer and the
Trustee and, prior to such transfer, consolidation or merger the transferee or
surviving or resulting entity shall provide evidence satisfactory to the Issuer
and the Trustee that all requirements of this Section have been satisfied.
SECTION 9.12. Disposition of Condemnation Award. If title to all or
any part of the Landfill shall be taken through the exercise of the power of
eminent domain, the entire condemnation award referable thereto shall be paid
to and held by the Trustee and shall thereafter be applied by the Trustee in
the manner and for the purposes specified in this Indenture.
(End of Article IX)
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ARTICLE X.
MEETINGS OF HOLDERS
SECTION 10.1. Purposes of Meetings. A meeting of Holders, or of the
Holders of any series of Senior Bonds, may be called at any time and from time
to time pursuant to the provisions of this Article X to the extent relevant to
the Holders of all of the Senior Bonds of Senior Bonds of that series, as the
case may be, to take any action (i) authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Senior Bonds, or
of that series, (ii) under any provision of this Indenture or (iii) authorized
or permitted by law.
SECTION 10.2. Call of Meetings. (a) The Trustee may call at any time a
meeting of Holders pursuant to Section 10.1 to be held at any reasonable time
and place the Trustee shall determine. Notice of such meeting, setting forth
the time, place and generally the subject thereof, shall be mailed by first
class mail, postage prepaid, not fewer than 15 nor more than 90 days prior to
the date of the meeting to the Holders at their addresses as they appear on the
Register on the fifteenth day preceding such mailing, which fifteenth day,
preceding the mailing shall be the record date for the meeting.
(b) If at any time the Issuer or the Holders of at least twenty-five
percent in aggregate principal amount of the Senior Bonds, or if applicable,
the affected series of Senior Bonds, then outstanding, shall have requested the
Trustee to call a meeting of Holders, by written request setting forth the
purpose of the meeting, and the Trustee shall not have mailed the notice of the
meeting within 20 days after receipt of the request, then the Issuer or the
Holders of Senior Bonds in the amount above specified may determine the time
and the place of the meeting and may call the meeting to take any action
authorized in Section 10.1 by mailing notice thereof as provided above.
(c) Any meetings of Holders, or the Holders of any series of Senior
Bonds affected by a particular matter, shall be valid without notice, if the
Holders of all Senior Bonds, or if applicable, the affected series of Senior
Bonds, then outstanding are present in person or by proxy, or if notice is
waived before or after the meeting by the Holders of all Senior Bonds, or if
applicable, the affected series of Senior Bonds, outstanding who were not so
present at the meeting, and if the Issuer and the Trustee are either present by
duly authorized representatives or have waived notice, before or after the
meeting.
SECTION 10.3. Voting. To be entitled to vote at any meeting of
Holders, a Person shall (a) be a Holder of one or more outstanding Senior
Bonds, or if applicable, of the affected series of Senior Bonds, as of the
record date for the meeting as determined above, or (b) be a person appointed
by an instrument or document in writing as proxy by a Person who is a Holder as
of the record date for the meeting, of one or more outstanding Senior Bonds or,
if applicable, of the affected series of Senior Bonds. Each Holder or proxy
shall be entitled to one vote for each $5,000 principal amount of Senior Bonds
held or represented by it. The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Senior Bonds or of their representatives by proxy
and the identifying number or numbers of the Senior Bonds held or represented
by them.
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SECTION 10.4. Meetings. (a) Notwithstanding any other provision of
this Indenture, the Trustee may make any reasonable regulations which it may
deem to be advisable for meetings of Holders, with regard to
(i) proof of the holding of Senior Bonds and of the
appointment of proxies,
(ii) the appointment and duties of inspectors of votes,
(iii) recordation of the proceedings of those meetings,
(iv) the execution, submission and examination of proxies and
other evidence of the right to vote, and
(v) any other matters concerning the conduct, adjournment or
reconvening of meetings which it may think fit.
(b) The Trustee shall appoint a temporary chair of the meeting by an
instrument or document in writing, unless the meeting shall have been called by
the Issuer or by the Holders, as provided in Section 10.2, in which case the
Issuer or the Holders calling the meeting, as the case may be, shall appoint a
temporary chair in like manner. A permanent chair and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in principal
amount of the Senior Bonds represented at the meeting and entitled to vote.
(c) The only Persons who shall be entitled to be present or to speak
at any meeting of Holders shall be the Persons entitled to vote at the meeting
and their counsel, any representatives of the Trustee or Registrar and their
counsel and any representatives of the Issuer and its counsel.
SECTION 10.5. Miscellaneous. Nothing contained in this Article X shall
be deemed or construed to authorize or permit any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Holders under any of the provisions of this Indenture or of the Senior
Bonds by reason of any call of a meeting of Holders or any right conferred
expressly or impliedly hereunder to make a call.
(End of Article X)
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ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. Limitation of Rights. With the exception of rights
conferred expressly in this Indenture, nothing expressed or mentioned in or to
be implied from this Indenture or the Senior Bonds is intended or shall be
construed to give to any Person other than the parties hereto, the Registrar,
the Paying Agents, and the Holders of the Senior Bonds any legal or equitable
right, remedy, power or claim under or with respect to this Indenture or any
covenants, agreements, conditions and provisions contained herein. This
Indenture and all of those covenants, agreements, conditions and provisions are
intended to be, and are, for the sole and exclusive benefit of the parties
hereto, the Registrar, the Paying Agents and the Holders of the Senior Bonds,
as provided herein.
SECTION 11.2. Severability. In case any section or provision of this
Indenture, or any covenant, agreement, stipulation, obligation, act or action,
or part thereof, made, assumed, entered into or taken under this Indenture, or
any application thereof, is held to be illegal or invalid for any reason, or is
inoperable at any time, that illegality, invalidity or inoperability shall not
affect the remainder thereof or any other section or provision of this
Indenture or any other covenant, agreement, stipulation, obligation, act or
action, or part thereof, made, assumed, entered into or taken under this
Indenture, all of which shall be construed and enforced at the time as if the
illegal, invalid or inoperable portion were not contained therein.
Any illegality, invalidity or inoperability shall not affect any
legal, valid and operable section, provision, covenant, agreement, stipulation,
obligation, act, action, part or application, all of which shall be deemed to
be effective, operative, made, assumed, entered into or taken in the manner and
to the full extent permitted by law from time to time.
SECTION 11.3. Notices. Except as provided in Section 6.2 hereof, it
shall be sufficient service or giving of any notice, request, complaint, demand
or other instrument or document, if it is duly mailed by first class, certified
or registered mail, or delivered by hand. Notices to the Issuer and the Trustee
shall be addressed as follows:
(a) WCA Shiloh Landfill, L.L.C., Xxx Xxxxxxxx, Xxxxxxx, Xxxxx
00000, Attn: Vice-President;
(b) If to the Trustee, at Regions Bank, Montgomery, Alabama
_________________, ___, ___________,
Duplicate copies of each notice, request, complaint, demand or other instrument
or document given hereunder by the Issuer or the Trustee to one or more of the
others also shall be given to all of the others. The foregoing parties may
designate, by notice given hereunder, any further or different addresses to
which any subsequent notice, request, complaint, demand or other instrument or
document shall be sent. The Trustee shall designate, by notice to the Issuer
the addresses to which notices or copies thereof shall be sent to the Registrar
and the Paying Agents.
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In connection with any notice mailed pursuant to the provisions of
this Indenture, a certificate of the Trustee, the Issuer, the Registrar or the
Holders of the Senior Bonds, whichever or whoever mailed that notice, that the
notice was so mailed shall be conclusive evidence of the proper mailing of the
notice.
SECTION 11.4. Suspension of Mail. If because of the suspension of
delivery of first class mail or, for any other reason, the Trustee or any other
Person shall be unable to mail by the required class of mail any notice
required to be mailed by the provisions of this Indenture, the Trustee or any
other Person shall give such notice in such other manner as in the judgment of
the Trustee or such Person shall most effectively approximate mailing thereof,
and the giving of that notice in that manner for all purposes of this Indenture
shall be deemed to be in compliance with the requirement for the mailing
thereof. Except as otherwise provided herein, the mailing of any notice shall
be deemed complete upon deposit of that notice in the mail and the giving of
any notice by any other means of delivery shall be deemed complete upon receipt
of the notice by the delivery service.
SECTION 11.5. Payments Due on Saturdays, Sundays and Holidays. If any
Interest Payment Date, date of maturity of the principal of any Senior Bonds,
or date fixed for the redemption of any Senior Bonds is not a Business Day,
then payment of interest, principal and any redemption premium need not be made
by the Trustee or any Paying Agent on that date, but that payment may be made
on the next succeeding Business Day with the same force and effect as if that
payment were made on the Interest Payment Date, date of maturity or date fixed
for redemption, and no interest shall accrue for the period after that date.
SECTION 11.6. Instruments of Holders. Any writing, including without
limitation, any consent, request, direction, approval, objection or other
instrument or document, required under this Indenture to be executed by any
Holder may be in any number of concurrent writings of similar tenor and may be
executed by that Holder in person or by an agent or attorney appointed in
writing. Proof of (i) the execution of any writing, including without
limitation, any consent, request, direction, approval, objection or other
instrument or document, (ii) the execution of any writing appointing any agent
or attorney, and (iii) the ownership of Senior Bonds, shall be sufficient for
any of the purposes of this Indenture, if made in the following manner, and if
so made, shall be conclusive in favor of the Trustee with regard to any action
taken thereunder, namely:
(a) The fact and date of the execution by any person of any writing
may be proved by the certificate of any officer in any jurisdiction who has
power by law to take acknowledgments within the jurisdiction, that the person
signing the writing acknowledged that execution before that officer, or by
affidavit of any witness to that execution;
(b) The fact of ownership of Senior Bonds shall be proved by the
Register maintained by the Registrar.
Nothing contained herein shall be construed to limit the Trustee to
the foregoing proof, and the Trustee may accept any other evidence of the
matters stated therein which it deems to be sufficient. Any writing, including
without limitation, any consent, request, direction, approval, objection or
other instrument or document, of the Holder of any Senior Bond shall bind every
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further Holder of the same Senior Bond, with respect to anything done or
suffered to be done by the Issuer, the Trustee, the Registrar or any Paying
Agent pursuant to that writing.
SECTION 11.7. Priority of this Indenture. This Indenture shall be
superior to any liens which may be placed upon the Revenues or any other funds
or accounts created pursuant to this Indenture.
SECTION 11.8. Extent of Covenants; No Personal Liability. All
covenants, stipulations, obligations and agreements of the Issuer contained in
this Indenture are and shall be deemed to be covenants, stipulations,
obligations and agreements of the Issuer to the full extent authorized by the
Act and permitted by the Constitution of the State. No covenant, stipulation,
obligation or agreement of the Issuer contained in this Indenture shall be
deemed to be a covenant, stipulation, obligation or agreement of any present or
future member, officer, agent or employee of the Issuer in other than that
person's official capacity. Neither the members of the Board of Directors of
the Issuer nor any official executing the Senior Bonds, this Indenture or any
amendment or supplement hereto or thereto shall be liable personally on the
Senior Bonds or be subject to any personal liability or accountability by
reason of the issuance or execution hereunder or thereof.
SECTION 11.9. Binding Effect. This Indenture shall inure to the
benefit of and shall be binding upon the Issuer and the Trustee and their
respective successors and assigns, subject, however, to the limitations
contained herein.
SECTION 11.10. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be regarded as an original and all
of which shall constitute but one and the same instrument.
SECTION 11.11. Governing Law. This Indenture and the Senior Bonds
shall be deemed to be contracts made under the laws of the State and for all
purposes shall be governed by and construed in accordance with the laws of the
State, except to the extent that Alabama conflict of law rules would require
the substantive rules of law of any other jurisdiction to apply.
(End of Article XI)
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IN WITNESS WHEREOF, the Issuer and the Trustee, as Trustee and
Registrar, have executed this Trust Indenture all as of the date first above
written.
WCA SHILOH LANDFILL, L.L.C.
By:
-------------------------------------
Its:
---------------------------------
ATTEST:
By:
-------------------------------------
Its:
---------------------------------
REGIONS BANK, MONTGOMERY, ALABAMA
-----------------------------------------
as Trustee, Paying Agent and Registrar
By:
-------------------------------------
Agent
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STATE OF _______________ )
)
COUNTY OF )
I, ________________________________, a Notary Public in and for said
county in said state, hereby certify that ____________________, whose name as
_______________________ of WCA SHILOH LANDFILL, L.L.C., a Delaware limited
liability company, is signed to the foregoing instrument and who is known to
me, acknowledged before me on this day that, being informed of the contents of
the within instrument, he, as such officer and with full authority, executed
the same voluntarily for and as the act of said corporation.
GIVEN under my hand and official seal of office, this ____ day of
_________________, 2000.
-------------------------------------
Notary Public
My Commission Expires:
-------------------------------------
(NOTARIAL SEAL)
STATE OF _______________ )
)
COUNTY OF )
I, ________________________________, a Notary Public in and for said
county in said state, hereby certify that ___________________, whose name as
Agent of REGIONS BANK, a state banking association, is signed to the foregoing
instrument and who is known to me, acknowledged before me on this day that,
being informed of the contents of the within instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
GIVEN under my hand and official seal of office, this _____ day of
______________________, 2000.
-------------------------------------
Notary Public
My Commission Expires:
-------------------------------------
(NOTARIAL SEAL)
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EXHIBIT A
Senior Bond FORM
WCA SHILOH LANDFILL, L.L.C.
SENIOR SECURED BONDS
NO. R-____-
Interest
Maturity Date: Dated as of: Rate CUSIP Number
-------------- ------------ ---- ------------
_____________, 2020 _____________, 2000
WCA Shiloh Landfill, L.L.C. (the "Issuer"), a Delaware limited
liability company, for value received, promises to pay to
____________________________ or registered assigns, but solely from the sources
and in the manner referred to herein, the principal amount of
__________________________________ DOLLARS
on the aforesaid Maturity Date, unless this Senior Bond is called for earlier
redemption, and to pay from those sources interest thereon at the rate
described above, payable on July 1 and January 1 of each year, commencing July
1, 2000 (an "Interest Payment Date"), until the principal amount is paid or
duly provided for. Interest shall be calculated on the basis of a 360-day year
and twelve 30-day months. This Senior Bond will bear interest from the most
recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from its date.
The principal of this Senior Bond is payable upon presentation and
surrender hereof at the principal corporate trust office of the trustee,
presently Regions Bank, Montgomery, Alabama, (the "Trustee"). Interest is
payable on each Interest Payment Date by check or draft mailed to the person in
whose name this Senior Bond (or one or more predecessor Senior Bonds) is
registered (the "Holder") at the close of business on the fifteenth day of the
month immediately preceding that Interest Payment Date (the "Record Date") on
the registration books for this issue maintained by the Trustee, as Registrar,
at the address appearing therein, or, in certain circumstances, by wire
transfer as described in the Indenture. The principal of and interest on this
Senior Bond are payable in lawful money of the United States of America,
without deduction for the services of the paying agent.
This Senior Bond shall not be entitled to any security or benefit
under the Indenture or be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS SENIOR BOND SET
FORTH ON THE REVERSE SIDE. THOSE PROVISIONS SHALL HAVE THE SAME EFFECT FOR ALL
PURPOSES AS IF SET FORTH HERE.
A-1
60
It is certified and recited that there have been performed and have
happened in regular and due form, as required by law, all acts and conditions
necessary to be done or performed by the Issuer or to have happened (i)
precedent to and in the issuing of the Senior Bonds in order to make them
legal, valid and binding senior secured obligations of the Issuer, and (ii)
precedent to and in connection with the execution and delivery of the
Indenture; that payment in full for the Senior Bonds has been received.
IN WITNESS OF THE ABOVE, the Issuer has caused this Senior Bond to be
executed in the name of the Issuer by the manual or facsimile signatures of its
Chief Financial Officer and its Secretary, and its official seal to be
impressed hereon or a facsimile thereof to be placed hereon, as of the date
shown above.
WCA SHILOH LANDFILL, L.L.C.
[SEAL]
By: (facsimile)
----------------------------
Attest: (facsimile)
------------------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Senior Bond is one of the Senior Bonds described in the
within-mentioned Indenture.
REGIONS BANK, Montgomery, Alabama
Trustee
By:
----------------------------
Authorized Signer
A-2
61
[ON REVERSE SIDE OF SENIOR BOND]
GENERAL PROVISIONS
This Senior Bond is one of a duly authorized issue of Senior Secured
Bonds, (the "Senior Bonds"), issuable under the Trust Indenture dated as of
___________________, 2000 (the "Indenture") between the Issuer and the Trustee,
aggregating in principal amount $5,000,000. The Senior Bonds are being issued
for the purpose of financing the general operating expenses and working capital
needs of the Shiloh Landfill, a construction and demolition-type landfill
located near Travelers Rest, South Carolina (the "Landfill"), as defined in the
Indenture. The Senior Bonds are senior secured obligations of the Issuer,
issued or to be issued under and are to be secured and entitled equally and
ratably to the protection given by the Indenture.
Reference is made to the Indenture for a more complete description of
the Landfill, the provisions, among others, with respect to the nature and
extent of the security for the Senior Bonds, the rights, duties and obligations
of the Issuer, the Trustee and the Holders of the Senior Bonds, and the terms
and conditions upon which the Senior Bonds are issued and secured. Each Holder
assents, by its acceptance hereof, to all of the provisions of the Indenture.
Pursuant to the Indenture, the Issuer is required to make monthly
payments to the Trustee in the amounts and at the times necessary to pay the
principal, premium, if any, and interest (the "Bond Service Charges") on the
Senior Bonds.
Copies of the Indenture are on file in the principal corporate trust
office of the Trustee.
This Senior Bond is a senior secured obligation of the Issuer, ranking
pari passu with all other indebtedness of the Issuer, and the Bond Service
Charges on the Senior Bonds are payable from all legally available sources of
the Issuer, and are additionally secured by the Pledged Revenues, as defined
and as provided in the Indenture (being, generally, all rents, receipts, issues
and profits derived by the Issuer from the operation or ownership of the
Landfill to which the Issuer may be entitled, including but not limited to all
commercial receipts derived from commercial operation of the Landfill, such as
disposal fees, tipping fees and all other moneys to which the Issuer may be
entitled.)
The Senior Bonds are issuable only as fully registered Bonds in the
denominations of $5,000 and any integral multiple thereof and are exchangeable
for Senior Bonds of other authorized denominations in equal aggregate principal
amounts at the office of the Registrar specified on the face hereof, but only
in the manner and subject to the limitations provided in the Indenture. This
Senior Bond is transferable at the office of the Registrar, by the Holder in
person or by his attorney, duly authorized in writing, upon presentation and
surrender hereof to the Registrar. The Registrar is not required to transfer or
exchange (i) any Senior Bond during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Senior Bonds and ending at the close of business on the day of such mailing, or
(ii) any Senior Bonds so selected for redemption.
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REDEMPTION
The Senior Bonds are subject to redemption prior to stated maturity
pursuant to first class mailed notice thereof by the Trustee at least 30 days
prior to the redemption date, as follows:
(a) Mandatory Redemption Upon Unenforceability. The Senior Bonds are
subject to mandatory redemption in whole in the event that the Indenture shall
have become void or unenforceable or impossible of performance in accordance
with the intent and purpose of the parties as expressed therein by reason of
any changes in the Constitution of the State or the Constitution of the United
States of America, or by reason of legal or administrative action (whether
state or federal) or any final decree, judgement or order of any court (whether
state or federal) entered after the contest thereof with the opportunity for
the contest thereof by the Issuer, the Holder or the Trustee in good faith.
(b) Extraordinary Optional Redemption. The Senior Bonds are also
subject to redemption by the Issuer in whole, but not in part, at a redemption
price of 100% of the principal amount redeemed, plus interest accrued to the
redemption date if the Issuer exercises its option under this Indenture to
prepay the payments due hereunder upon the occurrence of any of the following
events:
(i) The Landfill shall have been damaged or destroyed (a) to
such extent that the Landfill cannot reasonably be restored within a
period of six months to the condition thereof immediately preceding
such damage or destruction, or (b) to such extent that the Issuer is
thereby prevented from carrying on its normal operations at the
Landfill for a period of six months; or
(ii) Title to, or the temporary use of, all or a substantial
portion of the Landfill shall have been taken under the exercise of
the power of eminent domain by any governmental authority, or person,
firm or corporation acting under governmental authority, (a) to such
extent that the Landfill cannot reasonably be restored within a period
of six months to a condition of usefulness comparable to that existing
prior to such taking, or (b) if such taking results in the Issuer
being thereby prevented from carrying on its normal operations at the
Landfill for a period of six months.
(c) Optional Redemption. The Senior Bonds are callable for redemption,
in whole or in part, at the option of the Issuer on any date on or after April
1, 2002 at a redemption price as set forth below (expressed as a percentage of
the outstanding principal amount):
REDEMPTION DATES
(DATES INCLUSIVE) REDEMPTION PRICES
April 1, 2002 through March 31, 2003 105%
April 1, 2003 through March 31, 2004 104%
April 1, 2004 through March 31, 2005 103%
April 1, 2005 through March 31, 2006 102%
April 1, 2006 through March 31, 2007 101%
April 1, 2007 and thereafter 100%
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and thereafter at a redemption price equal to 100% of the principal
amount, together in the case of any such redemption with accrued
interest to the date of redemption.
Except in the case of redemption pursuant to any mandatory redemption
provisions, Senior Bonds shall be redeemed only by written notice from the
Issuer to the Trustee. That notice shall specify the redemption date and the
principal amount of each maturity of Senior Bonds to be redeemed, and shall be
given at least 45 days prior to the redemption date or such shorter period as
shall be acceptable to the Trustee.
Unless waived in writing by any Holder of Senior Bonds to be redeemed
and except as provided below, official notice of redemption shall be given by
the Registrar on behalf of the Issuer by mailing a copy of an official
redemption notice by registered or certified mail to the Holder of each Senior
Bond to be redeemed, at the address of such Holder shown on the Senior Bond
Register, not less than 30 days nor more than 45 days prior to the date fixed
for redemption.
Failure to duly give official notice of redemption by mail or any
defect therein shall not affect the validity of the proceedings for the
redemption of any Senior Bond with respect to which no such failure or defect
has occurred. Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the registered
Holder receives notice.
Notice having been mailed in the manner provided in the Indenture, the
Senior Bonds and portions thereof called for redemption shall become due and
payable on the redemption date unless such notice of redemption is conditional,
in which case the Senior Bonds and portions thereof called for redemption will
become due and payable only if funds for the payment thereof are deposited with
the Trustee, and upon presentation and surrender thereof at the place or places
specified in that notice, shall be paid at the redemption price, including
interest accrued to the redemption date.
If money for the redemption of all of the Senior Bonds and portions
thereof to be redeemed, together with interest accrued thereon to the
redemption date, is held by the Trustee or any Paying Agent on the redemption
date, so as to be available therefor on that date and if notice of redemption
has been deposited in the mail as aforesaid, then from and after the redemption
date those Senior Bonds and portions thereof called for redemption shall cease
to bear interest and no longer shall be considered to be outstanding hereunder.
If those moneys shall not be so available on the redemption date, or that
notice shall not have been deposited in the mail as aforesaid, those Senior
Bonds and portions thereof shall continue to bear interest, until they are
paid, at the same rate as they would have borne had they not been called for
redemption.
All moneys deposited in the Bond Fund and held by the Trustee or a
Paying Agent for the redemption of particular Senior Bonds shall be held in
trust for the account of the Holders thereof and shall be paid to them,
respectively, upon presentation and surrender of those Senior Bonds.
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LEGAL OPINION
The following is a true copy of the opinion rendered by X. Xxxxxxxx
Simpler, Jr., P.C. in connection with the issuance of, and dated as of and
premised on facts and law in effect on the date of the original delivery of,
the Senior Bonds. A signed copy is on file with the Issuer.
[to be completed]
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ASSIGNMENT
For value received, the undersigned sells, assigns and transfers unto
____________________________________________________ the within Senior Secured
Bond and irrevocably constitutes and appoints _________________________
attorney to transfer that Senior Bond on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: _____________
-----------------------------
Signature
Signature Guaranteed:
--------------------
NOTICE: The assignor's signature to this assignment must correspond with the
name as it appears upon the face of the within Senior Bond in every particular,
without alteration or any change whatever.
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