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IRON MOUNTAIN INCORPORATED
8 3/4% SENIOR SUBORDINATED NOTES DUE 2009
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INDENTURE
Dated as of October 24, 1997
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THE BANK OF NEW YORK,
as Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)................................................. 7.10
(a)(2)................................................ 7.10
(a)(3) ............................................... N.A.
(a)(4)................................................ N.A.
(a)(5)................................................ 7.10
(b) .................................................. 7.10
(c) .................................................. N.A.
311 (a) ................................................... 7.11
(b) .................................................. 7.11
(c) .................................................. N.A.
312 (a).................................................... 2.05
(b)................................................... 12.03
(c) .................................................. 12.03
313 (a) ................................................... 7.06
(b)(1) ............................................... N.A.
(b)(2) ............................................... 7.06;7.07
(c) .................................................. 7.06;12.02
(d)................................................... 7.06
314 (a) ................................................... 4.03;12.02
(b) .................................................. N.A.
(c)(1) ............................................... 12.04
(c)(2) ............................................... 12.04
(c)(3) ............................................... N.A.
(d)................................................... N.A.
(e) ................................................. 12.05
(f)................................................... N.A.
315 (a).................................................... 7.01
(b)................................................... 7.05,12.02
(c) ................................................. 7.01
(d)................................................... 7.01
(e)................................................... 6.11
316 (a)(last sentence) .................................... 2.09
(a)(1)(A)............................................. 6.05
(a)(1)(B) ............................................ 6.04
(a)(2) ............................................... N.A.
(b) .................................................. 6.07
(c) .................................................. 2.13
317 (a)(1) ................................................ 6.08
(a)(2)................................................ 6.09
(b) .................................................. 2.04
318 (a).................................................... 12.01
(b)................................................... N.A.
(c)................................................... 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION
BY REFERENCE...............................................1
Section 1.01. Definitions................................................1
Section 1.02. Other Definitions.........................................16
Section 1.03. Incorporation by Reference of Trust Indenture Act.........17
Section 1.04. Rules of Construction.....................................17
ARTICLE 2 THE NOTES.................................................18
Section 2.01. Form and Dating...........................................18
Section 2.02. Execution and Authentication..............................18
Section 2.03. Registrar, Paying Agent...................................19
Section 2.04. Paying Agent to Hold Money in Trust.......................20
Section 2.05. Lists of Holders of the Notes.............................20
Section 2.06. Transfer and Exchange.....................................20
Section 2.07. Replacement Notes.........................................24
Section 2.08. Outstanding Notes.........................................24
Section 2.09. Treasury Notes............................................24
Section 2.10. Temporary Notes...........................................25
Section 2.11. Cancellation..............................................25
Section 2.12. Defaulted Interest........................................25
Section 2.13. Record Date...............................................25
Section 2.14. CUSIP Number..............................................26
Section 2.15. Computation of Interest...................................26
Section 2.16. Exchange of Series A Notes for Series B Notes.............26
Section 2.17. Legends...................................................27
ARTICLE 3 REDEMPTION AND OFFERS TO PURCHASE.........................28
Section 3.01. Notices to Trustee........................................28
Section 3.02. Selection of Notes to Be Redeemed.........................28
Section 3.03. Notice of Redemption......................................28
Section 3.04. Effect of Notice of Redemption............................29
Section 3.05. Deposit of Redemption Price...............................29
Section 3.06. Notes Redeemed in Part....................................30
Section 3.07. Optional Redemption.......................................30
Section 3.08. Mandatory Redemption......................................31
Section 3.09. Asset Sale Offers.........................................31
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TABLE OF CONTENTS (cont.)
Page
ARTICLE 4 COVENANTS..................................................33
Section 4.01. Payment of Notes...........................................33
Section 4.02. Maintenance of Office or Agency............................33
Section 4.03. Reports....................................................34
Section 4.04. Compliance Certificate.....................................34
Section 4.05. Taxes......................................................35
Section 4.06. Stay, Extension and Usury Laws.............................35
Section 4.07. Restricted Payments........................................36
Section 4.08. Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries..........................38
Section 4.09. Incurrence of Indebtedness and Issuance
of Preferred Stock.........................................39
Section 4.10. Asset Sales................................................39
Section 4.11. Transactions with Affiliates...............................41
Section 4.12. Liens......................................................42
Section 4.13. Additional Subsidiary Guarantees...........................42
Section 4.14. Offer to Purchase Upon Change of Control...................43
Section 4.15. Corporate Existence........................................44
Section 4.16. Certain Senior Subordinated Debt...........................44
Section 4.17. Designation of unrestricted subsidiaries...................45
Section 4.18. Limitation on Sale and Leaseback Transactions..............45
ARTICLE 5 SUCCESSORS.................................................46
Section 5.01. Merger, Consolidation, or Sale of Assets...................46
Section 5.02. Successor Corporation Substituted..........................46
ARTICLE 6 CERTAIN DEFAULT PROVISIONS.................................47
Section 6.01. Events of Default..........................................47
Section 6.02. Acceleration...............................................49
Section 6.03. Other Remedies.............................................49
Section 6.04. Waiver of Past Defaults....................................50
Section 6.05. Control by Majority........................................50
Section 6.06. Limitation on Suits........................................50
Section 6.07. Rights of Holders of Notes to Receive Payment..............51
Section 6.08. Collection Suit by Trustee.................................51
Section 6.09. Trustee May File Proofs of Claim...........................51
Section 6.10. Priorities.................................................52
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TABLE OF CONTENTS (cont.)
Page
Section 6.11. Undertaking for Costs......................................52
ARTICLE 7 TRUSTEE ...................................................53
Section 7.01. Duties of Trustee..........................................53
Section 7.02. Rights of Trustee..........................................54
Section 7.03. Individual Rights of Trustee...............................54
Section 7.04. Trustee's Disclaimer.......................................55
Section 7.05. Notice of Defaults.........................................55
Section 7.06. Reports by Trustee to Holders of the Notes.................55
Section 7.07. Compensation and Indemnity.................................55
Section 7.08. Replacement of Trustee.....................................56
Section 7.09. Successor Trustee by Merger, etc...........................57
Section 7.10. Eligibility; Disqualification..............................58
Section 7.11. Preferential Collection of Claims Against Company..........58
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT
DEFEASANCE.................................................58
Section 8.01. Option to Effect Legal Defeasance or
Covenant Defeasance........................................58
Section 8.02. Legal Defeasance and Discharge.............................58
Section 8.03. Covenant Defeasance........................................59
Section 8.04. Conditions to Legal or Covenant Defeasance.................59
Section 8.05. Deposited Money and Government Securities
to be Held in Trust; Other Miscellaneous Provisions........61
Section 8.06. Repayment to Company.......................................61
Section 8.07. Reinstatement..............................................62
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER ..........................62
Section 9.01. Without Consent of Holders of Notes........................62
Section 9.02. With Consent of Holders of Notes...........................63
Section 9.03. Compliance with Trust Indenture Act........................64
Section 9.04. Revocation and Effect of Consents..........................64
Section 9.05. Notation on or Exchange of Notes...........................65
Section 9.06. Trustee to Sign Amendments, etc............................65
ARTICLE 10 SUBORDINATION.............................................65
Section 10.01. Agreement to Subordinate..................................65
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TABLE OF CONTENTS (cont.)
Page
Section 10.02. Liquidation; Dissolution; Bankruptcy.........................65
Section 10.03. Default on Designated Senior Debt............................66
Section 10.04. Acceleration of Notes........................................67
Section 10.05. When Distribution Must be Paid Over..........................67
Section 10.06. Notice By Company............................................67
Section 10.07. Subrogation..................................................67
Section 10.08. Relative Rights..............................................68
Section 10.09. Subordination May Not Be Impaired by Company.................68
Section 10.10. Distribution or Notice to Representative.....................68
Section 10.11. Rights of Trustee and Paying Agent...........................69
Section 10.12. Authorization to Effect Subordination........................69
Section 10.13. Amendments...................................................69
ARTICLE 11 SUBSIDIARY GUARANTEES.....................................69
Section 11.01. Subsidiary Guarantee.........................................69
Section 11.02. Subordination................................................71
Section 11.03. Liquidation; Dissolution; Bankruptcy.........................71
Section 11.04. Default on Senior Debt of the Guarantor......................72
Section 11.05. Acceleration of Notes........................................72
Section 11.06. When Distribution Must Be Paid Over..........................72
Section 11.07. Notice by a Guarantor........................................73
Section 11.08. Subrogation..................................................73
Section 11.09. Relative Rights..............................................74
Section 11.10. Subordination May Not Be Impaired
By Any Guarantor..........................................74
Section 11.11. Distribution or Notice to Representative.....................74
Section 11.12. Rights of Trustee and Paying Agent........................75
Section 11.13. Authorization to Effect Subordination.....................75
Section 11.14. Amendments................................................75
Section 11.15. Limitation of Guarantor's Liability..........................75
Section 11.16. Restricted Subsidiaries May Consolidate, etc.,
on Certain Terms..........................................76
Section 11.17. Releases Following Sale of Assets or
Designation as Unrestricted Subsidiary....................76
ARTICLE 12 MISCELLANEOUS.............................................77
Section 12.01. Trust Indenture Act Controls..............................77
NYMAIN02 Doc: 209277_6
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TABLE OF CONTENTS (cont.)
Page
Section 12.02. Notices......................................................77
Section 12.03. Communication by Holders of Notes with
Other Holders of Notes....................................78
Section 12.04. Certificate and Opinion as to Conditions Precedent........78
Section 12.05. Statements Required in Certificate or Opinion.............78
Section 12.06. Rules by Trustee and Agents...............................79
Section 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders................................79
Section 12.08. Governing Law.............................................79
Section 12.09. No Adverse Interpretation of Other Agreements.............79
Section 12.10. Successors................................................79
Section 12.11. Severability..............................................80
Section 12.12. Counterpart Originals.....................................80
Section 12.13. Table of Contents, Headings, etc..........................80
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF SUPPLEMENTAL INDENTURE
Exhibit C FORM OF NOTATION ON NOTE RELATING TO
GUARANTEE
Exhibit D CERTIFICATE OF TRANSFEROR
Exhibit E PURCHASER LETTER
-vi-
INDENTURE dated as of October 24, 1997 among Iron Mountain
Incorporated, a Delaware corporation (the "Company"), the Restricted
Subsidiaries signatories hereto and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee").
The Company, the Restricted Subsidiaries signatory hereto and the
Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 8 3/4% Senior Subordinated Notes due 2009:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person, (a)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person
and (b) Indebtedness encumbering any asset acquired by such specified Person.
"Acquisition EBITDA" means, as of any date of determination, with
respect to an Acquisition EBITDA Entity, the sum of (a) EBITDA of such
Acquisition EBITDA Entity for its last fiscal quarter for which financial
statements are available at such date of determination (adjusted to give pro
forma effect to any acquisition or disposition of a business or Person by such
Acquisition EBITDA Entity consummated during the period covered by, or after the
date of, such quarterly financial statements), multiplied by four (or if such
quarterly statements are not available, EBITDA for the most recent fiscal year
for which financial statements are available), plus (b) projected quantifiable
improvements in operating results (on an annualized basis) due to cost
reductions calculated in good faith by the Company or one of its Restricted
Subsidiaries, as certified by an Officers' Certificate filed with the Trustee,
without giving effect to any operating losses of the acquired Person.
"Acquisition EBITDA Entity" means, as of any date of determination, a
business or Person (a) which has been acquired by the Company or one of its
Restricted Subsidiaries and with respect to which financial results on a
consolidated basis with the Company have not been made available for an entire
fiscal quarter or (b) which is to be acquired in whole or in part with
Indebtedness, the incurrence of which will require the calculation on such date
of the Acquisition EBITDA of such Acquisition EBITDA Entity for purposes of
Section 4.09 hereof.
"Adjusted EBITDA" means, as of any date of determination and without
duplication, the sum of (a) EBITDA of the Company and its Restricted
Subsidiaries for the most recent fiscal quarter for which internal financial
statements are available at such date of determination, multiplied by four, and
(b) Acquisition EBITDA of each business or Person that
is an Acquisition EBITDA Entity as of such date of determination, multiplied by
a fraction, (i) the numerator of which is three minus the number of months
(and/or any portion thereof ) in such most recent fiscal quarter for which the
financial results of such Acquisition EBITDA Entity are included in the EBITDA
of the Company and its Restricted Subsidiaries under clause (a) above, and (ii)
the denominator of which is three. The effects of unusual or non-recurring items
in respect of the Company, a Restricted Subsidiary or an Acquisition EBITDA
Entity occurring in any period shall be excluded in the calculation of Adjusted
EBITDA.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, will mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control. Notwithstanding the foregoing, none of the
Initial Purchasers nor any of their Affiliates will be deemed to be Affiliates
of the Company.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, as of the time of determination, the greater of (a) the fair
market value of the property subject to such arrangement (as determined by the
Board of Directors of the Company) and (b) the present value (discounted at the
rate of interest implicit in such transaction) of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale and Leaseback Transaction (including any period for which such lease
has been extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
2
"Cash Equivalents" means (a) securities with maturities of one year or
less from the date of acquisition, issued, fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit,
time deposits, overnight bank deposits, bankers acceptances and repurchase
agreements issued by a Qualified Issuer having maturities of 270 days or less
from the date of acquisition, (c) commercial paper of an issuer rated at least
A-2 by Standard & Poor's Rating Group, a division of McGraw Hill, Inc., or P-2
by ▇▇▇▇▇'▇ Investors Service, or carrying an equivalent rating by a nationally
recognized rating agency if both of the two named rating agencies cease
publishing ratings of investments and having maturities of 270 days or less from
the date of acquisition, (d) money market accounts or funds with or issued by
Qualified Issuers and (e) Investments in money market funds substantially all of
the assets of which are comprised of securities and other obligations of the
types described in clauses (a) through (c) above.
"Change of Control" means the occurrence of any of the following
events:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than the Principal
Stockholders (or any of them), is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than a majority of the voting power of all classes
of Voting Stock of the Company;
(b) the Company consolidates with, or merges with or into,
another Person or conveys, transfers, leases or otherwise disposes of
all or substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock
of the Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where (i) the
outstanding Voting Stock of the Company is not converted or exchanged
at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation) or is converted into or exchanged for
(A) Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person or (B) cash, securities and other property (other
than Capital Stock described in the foregoing clause (A)) of the
surviving or transferee Person in an amount that could be paid as a
Restricted Payment pursuant to Section 4.07 hereof and (ii) immediately
after such transaction, no "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), other than the
Principal Stockholders (or any of them), is the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than a majority of the total outstanding Voting
Stock of the surviving or transferee Person;
(c) during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors
(together with any new directors whose election to such Board of
Directors, or whose nomination for election by the stockholders of the
Company, was approved by a vote of 662/3% of the directors then still
in office who were either directors at the beginning of such
3
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution other than in a transaction which complies
with the provisions of Section 5.01 hereof.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Consolidated Adjusted Net Income" means, for any period, the net
income (or net loss) of the Company and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted
to the extent included in calculating such net income or loss by excluding (a)
any net after-tax extraordinary gains or losses (less all fees and expenses
relating thereto), (b) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to Asset Sales, (c) the portion of net
income (or loss) of any Person (other than the Company or a Restricted
Subsidiary), including Unrestricted Subsidiaries, in which the Company or any
Restricted Subsidiary has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to the Company or any
Restricted Subsidiary in cash dividends or distributions by such Person during
such period, and (d) the net income (or loss) of any Person combined with the
Company or any Restricted Subsidiary on a "pooling of interests" basis
attributable to any period prior to the date of combination.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the amount which, in conformity with GAAP, would be
set forth opposite the caption "interest expense" (or any like caption) on a
consolidated statement of operations of the Company and its Restricted
Subsidiaries for such period, including, without limitation, (i) amortization of
debt discount, (ii) the net cost of interest rate contracts (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation, (iv) amortization of debt issuance costs and (v) the interest
component of Capital Lease Obligations of the Company and its Restricted
Subsidiaries, plus (b) all interest on any Indebtedness of any other Person
guaranteed and paid by the Company or any of its Restricted Subsidiaries;
provided, however, that Consolidated Interest Expense will not include any gain
or loss from extinguishment of debt, including write-off of debt issuance costs.
"Consolidated Non-Cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and its
Restricted Subsidiaries reducing Consolidated Adjusted Net Income for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such non-cash charge that requires an accrual of or reserve for cash charges
for any future period).
4
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the lenders party to the Credit Agreement, or any
successor or successors party thereto.
"Credit Agreement" means the Second Amended and Restated Credit
Agreement dated as of September 26, 1997 among the Company, the lenders party
thereto and the Credit Agent, as amended, restated, supplemented, modified,
renewed, refunded, increased, extended, replaced or refinanced from time to
time.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" means a Note that evidences a part of the Notes and
is authenticated and delivered to, and registered in the name of the Holder
thereof, in the form of the Note attached hereto as Exhibit A, that does not
contain the paragraph referred to in footnotes 1, 2 and 3 and the additional
schedule referred to in footnote 4 thereof.
"Depositary" means, with respect to Notes issuable in whole or in part
in the form of the Global Note, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Notes as contemplated by
Section 2.01.
"Designated Senior Debt" means (a) Senior Bank Debt and (b) other
Senior Debt the principal amount of which is $50.0 million or more at the date
of designation by the Company in a written instrument delivered to the Trustee;
provided that Senior Debt designated as Designated Senior Debt pursuant to
clause (b) shall cease to be Designated Senior Debt at any time that the
aggregate principal amount thereof outstanding is $10.0 million or less.
"Disqualified Stock" means any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the Holder thereof, in whole or in part, in each case on or
prior to the stated maturity of the Notes.
"distribution" means, for purposes of Articles 10 and 11, a
distribution consisting of cash, securities or other property, by set-off or
otherwise.
"Dollars" and "$" mean lawful money of the United States of America.
"DTC" means The Depository Trust Company.
5
"EBITDA" means for any period Consolidated Adjusted Net Income for such
period increased by (a) Consolidated Interest Expense for such period, plus (b)
Consolidated Income Tax Expense for such period, plus (c) Consolidated Non-Cash
Charges for such period.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Proceeds" means (a) with respect to Equity Interests (or debt
securities converted into Equity Interests) issued or sold for cash Dollars, the
aggregate amount of such cash Dollars and (b) with respect to Equity Interests
(or debt securities converted into Equity Interests) issued or sold for any
consideration other than cash Dollars, the aggregate Market Price thereof
computed on the date of the issuance or sale thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Series B Notes for
Series A Notes.
"Excluded Restricted Subsidiary" means any Wholly Owned Restricted
Subsidiary principally engaged in the records management business (including,
without limitation, the Company's outsourcing and staffing businesses) domiciled
outside the United States of America if the issuance of a Subsidiary Guarantee
by such Subsidiary would, as determined in a resolution of the Board of
Directors set forth in an Officers' Certificate delivered to the Trustee, create
a tax disadvantage that is material in relation to the aggregate amount of the
Company's and any Restricted Subsidiary's Investment or proposed Investment
therein.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than under the Credit Agreement) in existence on the date of
this Indenture, until such amounts are repaid.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Global Note" means a Note that evidences all or part of the Notes and
is authenticated and delivered to, and registered in the name of, the Depositary
for the Notes or a nominee thereof, in the form of the Note attached hereto as
Exhibit A, that contains the paragraph referred to in footnotes 1, 2 and 3 and
the additional schedule referred to in footnote 4 thereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
6
"Guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
obligation to reimburse amounts drawn down under letters of credit securing such
obligations.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (b) other agreements
or arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Note is registered.
"IAI" means an institutional "accredited investor" as defined in Rule
501(A)(1), (2), (3) or (7) of Regulation D under the Securities Act.
"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, and
whether or not contingent, (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or services,
(e) every Capital Lease Obligation and every obligation of such Person in
respect of Sale and Leaseback Transactions that would be required to be
capitalized on the balance sheet in accordance with GAAP, (f) all Disqualified
Stock of such Person valued at the greater of its voluntary or involuntary
maximum fixed repurchase price, plus accrued and unpaid dividends (unless
included in such maximum repurchase price), (g) all obligations of such Person
under or with respect to Hedging Obligations which would be required to be
reflected on the balance sheet as a liability of such Person in accordance with
GAAP and (h) every obligation of the type referred to in clauses (a) through (g)
of another Person and dividends of another Person the payment of which, in
either case, such Person has guaranteed. For purposes of this definition, the
"maximum fixed repurchase price" of any Disqualified Stock that does not have a
fixed repurchase price will be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were repurchased on any date on
which Indebtedness is required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Stock, such fair market value will be determined in good faith by
the board of directors of the issuer of such Disqualified Stock. Notwithstanding
the foregoing, trade accounts payable and accrued liabilities arising in the
ordinary course of business and any liability for federal, state or local taxes
or other taxes owed by such Person will not be considered Indebtedness for
purposes of this definition. The amount outstanding at any time of any
Indebtedness issued with original issue discount is the aggregate principal
amount at maturity of such Indebtedness, less the remaining unamortized portion
of the original issue discount of such Indebtedness at such time, as determined
in accordance with GAAP.
7
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Initial Purchasers" means Bear, ▇▇▇▇▇▇▇ & Co. Inc., Chase Securities
Inc., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Company, L.L.C. and Prudential Securities Incorporated.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans
(including Guarantees), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
"Issuance Date" means the closing date for the sale and original
issuance of the Series A Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest will accrue for
the intervening period.
"Leverage Ratio" means, at any date, the ratio of (a) the aggregate
principal amount of Indebtedness of the Company and its Restricted Subsidiaries
outstanding as of the most recent available quarterly or annual balance sheet to
(b) Adjusted EBITDA, after giving pro forma effect, without duplication, to (i)
the incurrence, repayment or retirement of any Indebtedness by the Company or
its Restricted Subsidiaries since the last day of the most recent full fiscal
quarter of the Company, (ii) if the Leverage Ratio is being determined in
connection with the incurrence of Indebtedness by the Company or a Restricted
Subsidiary, such Indebtedness to be incurred, and (iii) the Indebtedness to be
incurred in connection with the acquisition of any Acquisition EBITDA Entity.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code, or equivalent statutes, of any jurisdiction).
"Liquidated Damages" has the meaning set out in the Registration Rights
Agreement.
"Make-Whole Amount" means, with respect to any Note, an amount equal to
the excess, if any, of (a) the present value of the remaining principal, premium
and interest payments that would be payable with respect to such Note if such
Note were redeemed on September 30,
8
2002, computed using a discount rate equal to the Treasury Rate plus 75 basis
points, over (b) the outstanding principal amount of such Note.
"Make-Whole Average Life" means, with respect to any date of redemption
of Notes, the number of years (calculated to the nearest one-twelfth) from such
redemption date to September 30, 2002.
"Make-Whole Price" means, with respect to any Note, the greater of (a)
the sum of the principal amount of Make-Whole Amount with respect to such Note,
and (b) the redemption price of such Note on September 30, 2002.
"Market Price" means, (a) with respect to the calculation of Equity
Proceeds from the issuance or sale of debt securities which have been converted
into Equity Interests, the value received upon the original issuance or sale of
such converted debt securities, as determined reasonably and in good faith by
the Board of Directors, and (b) with respect to the calculation of Equity
Proceeds from the issuance or sale of Equity Interests, the average of the daily
closing prices for such Equity Interests for the 20 consecutive trading days
preceding the date of such computation. The closing price for each day will be
(a) such closing price on the NYSE Consolidated Tape (or any successor
consolidated tape reporting transactions on the New York Stock Exchange) or, if
such composite tape is not in use or does not report transactions in such Equity
Interests, or if such Equity Interests are listed on a stock exchange other than
the New York Stock Exchange (including for this purpose the Nasdaq National
Market), the last reported sale price regular way for such day, or in case no
such reported sale takes place on such day, the average of the closing bid and
asked prices regular way for such day, in each case on the principal national
securities exchange on which such Equity Interests are listed or admitted to
trading (which will be the national securities exchange on which the greatest
number of such Equity Interests have been traded during such 20 consecutive
trading days), or (b) if such Equity Interests are not listed or admitted to
trading on any such exchange, the average of the closing bid and asked prices
thereof in the over-the-counter market as reported by the National Association
of Securities Dealers Automated Quotation System or any successor system, or if
not included therein, the average of the closing bid and asked prices thereof
furnished by two members of the National Association of Securities Dealers
selected reasonably and in good faith by the Board of Directors for that
purpose. In the absence of one or more such quotations, the Market Price for
such Equity Interests will be determined reasonably and in good faith by the
Board of Directors.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale,
which amount is equal to the excess, if any, of (a) the cash received by the
Company or such Restricted Subsidiary (including any cash payments received by
way of deferred payment pursuant to, or monetization of, a note or installment
receivable or otherwise, but only as and when received) in connection with such
disposition over (b) the sum of (i) the amount of any Indebtedness which is
secured by such asset and which is required to be repaid in connection with the
disposition thereof, plus (ii) the reasonable out-of-pocket expenses incurred by
the Company or such Restricted Subsidiary, as the case may be, in connection
with such disposition or in connection with the transfer of such amount from
such Restricted Subsidiary to the Company, plus (iii) provisions for taxes,
including income
9
taxes, attributable to the disposition of such asset or attributable to required
prepayments or repayments of Indebtedness with the proceeds thereof, plus (iv)
if the Company does not first receive a transfer of such amount from the
relevant Restricted Subsidiary with respect to the disposition of an asset by
such Restricted Subsidiary and such Restricted Subsidiary intends to make such
transfer as soon as practicable, the out-of-pocket expenses and taxes that the
Company reasonably estimates will be incurred by the Company or such Restricted
Subsidiary in connection with such transfer at the time such transfer is
expected to be received by the Company (including, without limitation,
withholding taxes on the remittance of such amount).
"1996 Indenture" means the Indenture dated as of October 1, 1996 among
the Company, the Restricted Subsidiaries parties thereto as guarantors and First
Bank National Association, as trustee, pursuant to which the 1996 Notes were
issued.
"1996 Notes" means the 101/8% Senior Subordinated Notes due 2006 issued
under the 1996 Indenture.
"Notes" means, collectively, the Series A Notes and the Series B Notes.
"Obligations" means any principal, interest (including post-petition
interest, whether or not allowed as a claim in any proceeding), penalties, fees,
costs, expenses, indemnifications, reimbursements, damages and other liabilities
payable under or in connection with any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed, unless otherwise
specified, by any two of the Chairman of the Board, a Vice Chairman of the
Board, the President, the Chief Financial Officer, the Controller or an
Executive Vice President of the Company, and delivered to the Trustee, that
meets the requirements of Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Permitted Investments" means (a) any Investments in the Company or in
a Restricted Subsidiary (other than an Excluded Restricted Subsidiary) of the
Company, including without limitation the Guarantee of Indebtedness permitted
under Section 4.09 hereof; (b) any Investments in Cash Equivalents; (c)
Investments by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment (i) such Person becomes a Restricted
Subsidiary (other than an Excluded Restricted Subsidiary) of the Company or (ii)
such Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary (other than an Excluded
10
Restricted Subsidiary) of the Company; (d) Investments in assets (including
accounts and notes receivable) owned or used in the ordinary course of business;
(e) Investments for any purpose related to the Company's records management
business (including, without limitation, the Company's outsourcing and staffing
businesses) in an aggregate outstanding principal amount not to exceed $10.0
million; and (f) Investments by the Company or a Restricted Subsidiary (other
than an Excluded Restricted Subsidiary) in one or more Excluded Restricted
Subsidiaries, the aggregate outstanding amount of which does not exceed 10% of
the consolidated assets of the Company and its Restricted Subsidiaries.
"Permitted Liens" means:
(a) Liens existing as of the Issuance Date;
(b) Liens on property or assets of the Company or any
Restricted Subsidiary securing Senior Debt;
(c) Liens on any property or assets of a Restricted Subsidiary
granted in favor of the Company or any Wholly Owned Restricted
Subsidiary;
(d) Liens securing the Notes or the Subsidiary Guarantees;
(e) any interest or title of a lessor under any Capital Lease
Obligation or Sale and Leaseback Transaction so long as the
Indebtedness, if any, secured by such Lien does not exceed the
principal amount of Indebtedness permitted under Section 4.09 hereof;
(f) Liens securing Acquired Debt created prior to (and not in
connection with or in contemplation of) the incurrence of such
Indebtedness by the Company or any Restricted Subsidiary; provided that
such Lien does not extend to any property or assets of the Company or
any Restricted Subsidiary other than the assets acquired in connection
with the incurrence of such Acquired Debt;
(g) Liens securing Hedging Obligations permitted to be
incurred pursuant to clause (g) of Section 4.09 hereof;
(h) Liens arising from purchase money mortgages and purchase
money security interests, or in respect of the construction of property
or assets, incurred in the ordinary course of the business of the
Company or a Restricted Subsidiary; provided that (i) the related
Indebtedness is not secured by any property or assets of the Company or
any Restricted Subsidiary other than the property and assets so
acquired or constructed and (ii) the Lien securing such Indebtedness is
created within 60 days of such acquisition or construction;
(i) statutory Liens or landlords' and carriers',
warehousemen's, mechanics', suppliers', materialmen's, repairmen's or
other like Liens arising in
11
the ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceedings,
if a reserve or other appropriate provision, if any, as is then
required in conformity with GAAP has been made therefor;
(j) Liens for taxes, assessments, government charges or claims
with respect to amounts not yet delinquent or that are being contested
in good faith by appropriate proceedings diligently conducted, if a
reserve or other appropriate provision, if any, as is required in
conformity with GAAP has been made therefor;
(k) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance bonds and other obligations of
a like nature incurred in the ordinary course of business (other than
contracts for the payment of money);
(l) easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering in any material respect with
the business of the Company or any Restricted Subsidiary incurred in
the ordinary course of business;
(m) Liens arising by reason of any judgment, decree or order
of any court so long as such Lien is adequately bonded and any
appropriate legal proceedings that may have been duly initiated for the
review of such judgment, decree or order shall not have been finally
terminated or the period within which such proceedings may be initiated
shall not have expired;
(n) Liens arising under options or agreements to sell assets;
(o) other Liens securing obligations incurred in the ordinary
course of business, which obligations do not exceed $1.0 million in the
aggregate at any one time outstanding; and
(p) any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clauses (a) through (o);
provided that any such extension, renewal or replacement does not
extend to any additional property or assets.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or any government or any agency or political
subdivision thereof.
"Principal Stockholders" means each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Schooner
Capital Corporation, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and their respective
Affiliates.
"QIB" means "qualified institutional buyer" as defined in Rule 144A.
12
"Qualified Equity Offering" means an offering of Capital Stock, other
than Disqualified Stock, of the Company for Dollars, whether registered or
exempt from registration under the Securities Act.
"Qualified Issuer" means (a) any lender party to the Credit Agreement
or (b) any commercial bank (i) which has capital and surplus in excess of
$500,000,000 and (ii) the outstanding short-term debt securities of which are
rated at least A-2 by Standard & Poor's Rating Group, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc. or at least P-2 by ▇▇▇▇▇'▇ Investors Service, or carry an equivalent rating
by a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments.
"Qualifying Sale and Leaseback Transaction" means any Sale and
Leaseback Transaction between the Company or any of its Restricted Subsidiaries
and any bank, insurance company or other lender or investor providing for the
leasing to the Company or such Restricted Subsidiary of any property (real or
personal) which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor and where the
property in question has been constructed or acquired after the date of this
Indenture.
"Refinancing Indebtedness" means new Indebtedness incurred or given in
exchange for, or the proceeds of which are used to repay, redeem, defease,
extend, refinance, renew, replace or refund, other Indebtedness; provided,
however, that (a) the principal amount of such new Indebtedness shall not exceed
the principal amount of Indebtedness so repaid, redeemed, defeased, extended,
refinanced, renewed, replaced or refunded (plus the amount of fees, premiums,
consent fees, prepayment penalties and expenses incurred in connection
therewith); (b) such Refinancing Indebtedness shall have a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity of
the Indebtedness so repaid, redeemed, defeased, extended, refinanced, renewed,
replaced or refunded or shall mature after the maturity date of the Notes; (c)
to the extent such Refinancing Indebtedness refinances Indebtedness that has a
final maturity date occurring after the maturity date of the Notes, such new
Indebtedness shall have a final scheduled maturity not earlier than the final
scheduled maturity of the Indebtedness so repaid, redeemed, defeased, extended,
refinanced, renewed, replaced or refunded and shall not permit redemption at the
option of the holder earlier than the earliest date of redemption at the option
of the holder of the Indebtedness so repaid, redeemed, defeased, extended,
refinanced, renewed, replaced or refunded; (d) to the extent such Refinancing
Indebtedness refinances Indebtedness subordinate to the Notes, such Refinancing
Indebtedness shall be subordinated in right of payment to the Notes and to the
extent such Refinancing Indebtedness refinances Notes or Indebtedness pari passu
with the Notes, such Refinancing Indebtedness shall be pari passu with or
subordinated in right of payment to the Notes, in each case on terms at least as
favorable to the holders of Notes as those contained in the documentation
governing the Indebtedness so repaid, redeemed, defeased, extended, refinanced,
renewed, replaced or refunded; and (e) with respect to Refinancing Indebtedness
incurred by a Restricted Subsidiary, such Refinancing Indebtedness shall rank no
more senior, and shall be at least as subordinated, in right of payment to the
Subsidiary Guarantee of such Restricted Subsidiary as the Indebtedness being
repaid, redeemed, defeased, extended, refinanced, renewed, replaced or refunded.
13
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issuance Date, by and among the Company, the
Guarantors and the Initial Purchasers, as amended or supplemented from time to
time.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means, for purposes of Articles 10 and 11, the Credit
Agent or other agent, trustee or representative for any Senior Debt of the
Company or, with respect to any Restricted Subsidiary, for any Senior Debt of
such Restricted Subsidiary.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Securities" means Notes that bear or are required to bear
the legends set forth in Exhibit A hereto.
"Restricted Subsidiary" means (a) each direct or indirect Subsidiary of
the Company existing on the date of this Indenture and (b) any other direct or
indirect Subsidiary of the Company formed, acquired or existing after the date
of this Indenture, in each case which is not designated by the Board of
Directors as an "Unrestricted Subsidiary."
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which a Person sells or transfers any property
or asset in connection with the leasing, or the resale against installment
payments, of such property or asset to the seller or transferor.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Bank Debt" means all Obligations outstanding under or in
connection with the Credit Agreement (including Guarantees of such Obligations
by Subsidiaries of the Company).
"Senior Debt" means (a) the Senior Bank Debt and (b) any other
Indebtedness permitted to be incurred by the Company or any Restricted
Subsidiary, as the case may be, under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Notes.
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall not
include (i) any
14
liability for federal, state, local or other taxes owed or owing by the Company,
(ii) any Indebtedness of the Company to any of its Subsidiaries or other
Affiliates, (iii) any trade payables or (iv) any Indebtedness that is incurred
in violation of this Indenture.
"Series A Notes" means the Company's 8 3/4% Series A Senior
Subordinated Notes due 2009, as amended or supplemented from time to time
pursuant to the terms hereof, that are issued under this Indenture.
"Series B Notes" means the Company's 8 3/4% Series B Senior
Subordinated Notes due 2009, as amended or supplemented from time to time
pursuant to the terms hereof, that are issued under this Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
"Subsidiary Guarantee" means a Guarantee of a Guarantor pursuant to
Article 11 hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as provided in Section 9.03.
"Treasury Rate" means, at any time of computation, the yield to
maturity at such time (as compiled by and published in the most recent Federal
Reserve Statistical Release H.15(519), which has become publicly available at
least two business days prior to the date of the redemption notice or if such
Statistical Release is no longer published, any publicly available source of
similar market data) of United States Treasury securities with a constant
maturity most nearly equal to the Make-Whole Average Life; provided, however,
that if the Make-Whole Average Life is not equal to the constant maturity of the
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the
Make-Whole Average Life is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
15
"Unrestricted Subsidiary" means (a) any Subsidiary that is designated
by the Board of Directors as an Unrestricted Subsidiary in accordance with
Section 4.17 hereof and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. person" means U.S. person as defined in Regulation S.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary of
the Company all of the outstanding Capital Stock or other ownership interests of
which (other than director's qualifying shares) shall at the time be owned by
the Company or by one of more Wholly Owned Restricted Subsidiaries of the
Company.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"....................... 4.11
"Asset Sale".................................. 4.10
"Asset Sale Offer"............................ 4.10
"Benefitted Party"............................ 11.01
"Change of Control Offer"..................... 4.14
"Change of Control Payment"................... 4.14
"Change of Control Payment Date".............. 4.14
"Covenant Defeasance"......................... 8.03
"Commencement Date"........................... 4.10
"Company Order"............................... 2.02
"Event of Default"............................ 6.01
"Excess Proceeds"............................. 4.10
"Guarantor"................................... 11.01
"incur"....................................... 4.09
"Legal Defeasance" ........................... 8.02
"Non-Monetary Default"........................ 10.03
16
"Offer Amount"................................ 3.09
"Offer Period"................................ 3.09
"Paying Agent"................................ 2.03
"Payment Blockage Notice"..................... 10.03
"Payment Default"............................. 10.03
"Purchase Date"............................... 3.09
"Registrar"................................... 2.03
"Restricted Payments"......................... 4.07
"Separation Date"............................. 2.06
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture, other than
those provisions of the TIA that may be excluded herein, which provision shall
be excluded to the extent specifically excluded in this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes and the Subsidiary Guarantees,
if any;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, the Guarantors and any
successor obligor upon the Notes or any Subsidiary Guarantee, as the case may
be.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule or regulation
promulgated by the SEC under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
17
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act or the
Exchange Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The notation on each Note
relating to the Subsidiary Guarantees shall be substantially in the form set
forth on Exhibit C, which is part of this Indenture. The Notes may have
notations, legends or endorsements approved as to form by the Company and
required by law, stock exchange rule, agreements to which the Company or each
Restricted Subsidiary is subject, or usage. Each Note shall be dated the date of
its authentication. The Notes shall be issuable only in denominations of $1,000
and integral multiples thereof.
The Notes shall, in accordance with the following provisions, be
issuable (i) in whole or in part in the form of the Global Note and, in such
case, the Depositary for such Global Note shall be designated by the Company in
an Officers' Certificate delivered to the Trustee on or prior to the Issuance
Date and (ii) in definitive form in the form of one or more Definitive Notes.
The Global Note shall represent the aggregate amount of outstanding Notes of all
Holders other than, in the case of Notes that are Restricted Securities, Holders
that are IAIs, from time to time en dorsed thereon; provided, that the aggregate
amount of outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. In the case
of Notes that are Restricted Securities, Definitive Notes shall be issued to all
Holders that are IAIs in the aggregate amount of outstanding Notes held by such
Holders. Any en dorsement of the Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof. Every Global Note
authenticated and delivered hereunder will bear a legend substantially in the
form thereof set forth on Exhibit A hereto.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Notes and may be in facsimile form. An Officer of each Guarantor shall sign the
Subsidiary Guarantee for such Guarantor by manual or facsimile signature.
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If an Officer of the Company or a Guarantor whose signature is on a
Note or a Subsidiary Guarantee, as the case may be, no longer holds that office
at the time the Note is authenticated, the Note or the Subsidiary Guarantee, as
the case may be, shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature of the Trustee shall be conclusive evidence that
the Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company (a "Company Order"), authenticate Notes for original
issue up to an aggregate principal amount stated in paragraph 4 of the Notes.
The aggregate principal amount of Notes outstanding at any time shall not exceed
$250,000,000 except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or any Guarantor or an Affiliate of the Company
or any Guarantor.
SECTION 2.03. REGISTRAR, PAYING AGENT AND DEPOSITARY.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange (including any
co-registrar, the "Registrar") and (ii) an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent, Registrar or co-registrar without prior notice to any Holder of a Note.
The Company shall notify the Trustee and the Trustee shall notify the Holders of
the Notes of the name and address of any Agent not a party to this Indenture.
The Company or any Guarantor may act as Paying Agent, Registrar or co-registrar.
The Company shall enter into an appropriate agency agreement with any Agent not
a party to this Indenture, which shall be subject to any obligations imposed by
the provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes.
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The Company initially appoints DTC to act as Depositary with respect
to the Global Note. The Trustee shall act as custodian for the Depositary with
respect to the Global Note.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders of the Notes or the Trustee all money held by the Paying Agent for
the payment of principal of, premium, if any, and interest on the Notes, and
shall promptly notify the Trustee of any Default by the Company or the
Guarantors in making any such payment. While any such Default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Guarantor) shall have no further liability for the money
delivered to the Trustee. If the Company or a Guarantor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
of the Notes, subject to Article 10 hereof, all money held by it as Paying
Agent. Upon any bankruptcy or reorganization proceeding relating to the Company
or a Guarantor, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. LISTS OF HOLDERS OF THE NOTES.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of the Notes and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company and/or the Guarantors shall furnish to
the Trustee at least seven Business Days before each interest payment date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Holders of the Notes, including the aggregate principal amount of
the Notes held by each thereof, and the Company and each Guarantor shall
otherwise comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented by a Holder to the Registrar with a request (1) to register the
transfer of the Definitive Notes or (2) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other au thorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided that any Definitive
Notes presented or surrendered for registration of transfer or exchange (A)
shall be duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by the Holder thereof or by his
attorney duly authorized in writing; (B) unless the Global Note has previously
been exchanged in whole for Definitive Notes, shall only be exchanged for an
interest in the Global Note in accordance with Section 2.06(b) if such
Definitive Notes are being transferred (i) pursuant to an effective registration
statement under the Securities Act; (ii) to a QIB in reliance on Rule 144A; or
(iii) outside the United States to a non-U.S. person in reliance on Regulation
S; and (C) in the case of a Restricted Security, such request shall be
accompanied by
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the following additional documents: (i) if such Restricted Security is being
delivered to the Regis trar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect (in substantially the
form of Exhibit D attached hereto) and a letter containing certain
representations and agreements (in substantially the form of Exhibit E attached
hereto); or (ii) if such Restricted Security is being transferred to an IAI in
reliance on an exemption from the registration requirements of the Securities
Act, other than to a QIB in reliance on Rule 144A or outside the United States
to a non-U.S. person in reliance on Regulation S, a certification to that effect
(in substantially the form of Exhibit D attached hereto), and a letter
containing certain representations and agreements (in substantially the form of
Exhibit E attached hereto) and, if requested by the Company or the Trustee, an
opinion of counsel reasonably acceptable to the Com pany and the Trustee to the
effect that such transfer is in compliance with the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial Interest in the
Global Note. A Definitive Note may be exchanged for a beneficial interest in the
Global Note only upon receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with: (i) written instructions directing the Trustee to
make an endorsement on the Global Note to reflect an increase in the aggregate
princi pal amount of the Notes represented by the Global Note, and (ii) if such
Definitive Note is a Restricted Security, a certification (in substantially the
form of Exhibit D attached hereto) to the effect that such Definitive Note is
either being transferred to a QIB in reliance on Rule 144A or outside the United
States to a non-U.S. person in reliance on Regulation S; in which case the
Trustee shall cancel such Definitive Note and cause the aggregate principal
amount of Notes represented by the Global Note to be increased accordingly. If
no Global Note is then outstanding, the Company shall issue and the Trustee
shall authenticate a new Global Note in the appropriate principal amount.
(c) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note. A beneficial interest in the Global Note may be exchanged for a
Definitive Note only in the case of a Restricted Security, and upon receipt by
the Trustee of written transfer instructions (or such other form of instructions
as is customary for the Depositary) from the Depositary (or its nominee) on
behalf of any Person having a beneficial interest in a Global Note that such
Restricted Security is being transferred to an IAI in reliance on an exemption
from the registration requirements of the Securities Act, other than to a QIB in
reliance on Rule 144A or outside the United States to a non- U.S. person in
reliance on Regulation S, provided however that such request is accompanied by a
certification to that effect (in substantially the form of Exhibit D attached
hereto) and a letter containing certain representations and agreements (in
substantially the form of Exhibit E attached hereto) and, if requested by the
Company or the Trustee, an opinion of counsel reasonably acceptable to the
Company and the Trustee to the effect that such transfer is in compliance with
the Securities Act, in which case the Trustee shall, in accordance with the
standing instructions and procedures existing between the Depositary and the
Trustee, cause the aggregate principal amount of the Global Note to be reduced
accordingly and, following such reduction, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the transferee a
Definitive Note in the appropriate principal amount.
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Definitive Notes issued in exchange for a beneficial interest in a
Global Note shall be registered in such names and in such authorized
denominations as the Depositary shall instruct the Trustee.
(d) Transfer and Exchange of beneficial interests in the Global Note.
The transfer and exchange of beneficial interests in the Global Note shall be
effected through the Depositary in accordance with this Indenture and the
procedures of the Depositary therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.
When a Global Note is presented to the Registrar with a request (1)
to register the transfer of the Global Note or (2) to exchange such Global Notes
for an equal principal amount of Notes of other denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met; provided, however, that any Note presented or surrendered
for registration of transfer or exchange (A) shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar and the Trustee duly executed by the Holder thereof or by his attorney
duly authorized in writing and (B) in the case of a Restricted Security, such
request shall be accompanied by the following additional documents: (i) if such
Restricted Security is being transferred to the Person designated by the
Depositary as being the beneficial owner, a certification to that effect (in
substantially the form of Exhibit D attached hereto), (ii) if such Restricted
Security is being transferred to a QIB in accordance with Rule 144A or pursuant
to an effective registration statement under the Securities Act, a certification
to that effect (in substantially the form of Exhibit D attached hereto), or
(iii) if such Restricted Security is being transferred in reliance on another
exemption from the registration requirements of the Securities Act, a
certification to that effect (in substantially the form of Exhibit D attached
hereto) and, if requested by the Company or the Trustee, an opinion of counsel
reasonably acceptable to the Company and to the Trustee to the effect that such
transfer is in compliance with the Securities Act. To permit registrations of
transfer and exchanges, the Company shall issue and the Trustee shall
authenticate Notes at the Registrar's request, subject to such rules as the
Trustee may reasonably require.
(e) Cancellation and/or Adjustment of the Global Note. At such time
as all beneficial interests in the Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the Global Note shall be
returned to or retained and cancelled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in the Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the aggregate principal
amount of Notes represented by such Global Note shall be reduced accordingly and
an endorsement shall be made on such Global Note by the Trustee to reflect such
reduction.
(f) General Provisions Relating to Transfers and Exchanges. To permit
registrations of transfers and exchanges effected in accordance with this
Indenture, the Company shall execute and the Trustee shall authenticate the
Global Note and any Definitive Notes at the Registrar's request. The Global Note
and any Definitive Notes issued upon any registration of transfer or exchange of
beneficial interests in the Global Note or the Definitive Notes shall be legal,
valid and binding obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this
22
Indenture, as the Definitive Notes or Global Notes surrendered upon such
registration of transfer or exchange.
Neither the Company nor the Registrar shall be required to (a) issue,
register the transfer of or exchange Notes during a period beginning at the
opening of business on a Business Day 15 days before the day of mailing of any
notice of redemption of Notes under Section 3.02 hereof and ending at the close
of business on the day of such mailing or (b) register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
No service fee shall be charged to any Holder of a Note for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 9.05 hereof, which shall be paid by
the Company).
Prior to due presentment to the Trustee for registration of the
transfer of any Note, the Trustee, any Agent, the Company and each Guarantor may
deem and treat the Person in whose name any Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of,
premium, if any, and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Trustee, any
Agent, the Company or any Guarantor shall be affected by notice to the contrary.
(g) General Provisions Relating to the Global Note. Notwithstanding
any other provision in this Indenture, no Global Note may be transferred to, or
registered or exchanged for Notes registered in the name of, any Person other
than the Depositary for such Global Note or any nominee thereof, and no such
transfer may be registered, unless (i) such Depositary (A) notifies the Company
that it is unwilling or unable to continue as Depositary for such Global Note or
(B) ceases to be a clearing agency registered under the Exchange Act, (ii) the
Company delivers to the Trustee an Officers' Certificate stating that such
Global Note shall be so transferable, registrable, and exchangeable, and such
transfers shall be registrable, or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Notes evidenced by such
Global Note. Notwithstanding any other provision in this Indenture, a Global
Note to which the restriction set forth in the preceding sentence shall have
ceased to apply may be transferred only to, and may be registered and exchanged
for Notes registered only in the name or names of, such Person or Persons as the
Depositary for such Global Note shall have directed and no transfer thereof
other than such a transfer may be registered. Every Note authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global Note to which the restriction set forth in the first sentence of this
paragraph shall apply, whether pursuant to this Section 2.06 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global Note.
(h) Exchange of Series A Notes for Series B Notes. The Series A Notes
may be exchanged for Series B Notes pursuant to the terms of the Exchange Offer
in accordance with the procedures set out under Section 2.16 hereof.
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SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company, shall authenticate a
replacement Note (accompanied by a notation of the Subsidiary Guarantees duly
endorsed by each Guarantor) if the Trustee's requirements for replacements of
Notes are met. An indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee, the Company and the Guarantors to
protect the Company, the Guarantors, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Note is
replaced. Each of the Company, the Guarantors and the Trustee may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
the Guarantors and shall be entitled to all of the benefits of this Indenture
equally and ratably with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding. If a
Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a bona fide purchaser. If the principal amount of any Note is considered
paid under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue. Subject to Section 2.09 hereof, a Note does not cease to be
outstanding because the Company, a Guarantor, a Subsidiary of the Company or a
Guarantor or an Affiliate of the Company or a Guarantor holds the Note.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, any Guarantor, any of their respective Subsidiaries or any Affiliate of
the Company or any Guarantor shall be considered as though not outstanding,
except that for purposes of determining whether the Trustee shall be protected
in relying on any such direction, waiver or consent, only Notes which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
considered. Notwithstanding the foregoing, Notes that are to be acquired by the
Company, any Guarantor, any Subsidiary of the Company or any Guarantor or an
Affiliate of the Company or any Guarantor pursuant to an exchange offer, tender
offer or other agreement shall not be deemed to be owned by the Company, such
Guarantor, a Subsidiary of the Company or such Guarantor or an Affiliate of the
Company or such Guarantor until legal title to such Notes passes to the Company,
such Guarantor, such Subsidiary or such Affiliate, as the case may be.
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SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes (accompanied by a
notation of the Subsidiary Guarantees duly endorsed by each Guarantor).
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company and the Trustee consider appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of the written order of the Company signed by two Officers
of the Company, shall authenticate definitive Notes (accompanied by a notation
of the Subsidiary Guarantees duly endorsed by each Guarantor) in exchange for
temporary Notes. Until such exchange, temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall return canceled Notes
to the Company. The Company may not issue new Notes to replace Notes that it has
redeemed or paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company and the Guarantors default in a payment of interest on
the Notes, the Company or any such Guarantor (to the extent of its obligations
under its Subsidiary Guarantee) shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Holders of the Notes on a subsequent special record date,
which date shall be at the earliest practicable date but in all events at least
five Business Days prior to the payment date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall fix or cause to be
fixed each such special record date and payment date, and shall, promptly
thereafter, notify the Trustee of any such date. At least 15 days before the
special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail to Holders of the Notes a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders
of the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA ss. 316(c).
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SECTION 2.14. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number and, if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company will
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.15. COMPUTATION OF INTEREST.
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months.
SECTION 2.16. EXCHANGE OF SERIES A NOTES FOR SERIES B NOTES
The Series A Notes may be exchanged for Series B Notes pursuant to the
terms of the Exchange Offer. The Trustee and Registrar shall make the exchange
as follows:
The Company shall present the Trustee with an Officers' Certificate
certifying the following:
(a) upon issuance of the Series B Notes, the transactions contemplated
by the Exchange Offer have been consummated;
(b) the principal amount of Series A Notes properly tendered in the
Exchange Offer that are represented by a Global Note for Series B Notes shall be
registered and sent for each such Holder; and
(c) the principal amount of Series A Notes properly tendered in the
Exchange Offer that are represented by Definitive Notes, the name of each Holder
of such Definitive Notes, the principal amount at maturity properly tendered in
the Exchange Offer by each such Holder, and the name and address to which
Definitive Notes for Series B Notes shall be registered and sent for each such
Holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Series B Notes have been
registered under Section 5 of the Securities Act and this Indenture has been
qualified under the TIA and (iii) a Company Order, shall authenticate (A) a
Global Note for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of Series A Notes represented by a Global Note
indicated in such Officers' Certificate as having been properly tendered and (B)
Definitive Notes for Series B Notes in an aggregate principal amount equal to
the aggregate principal amount of Series A Notes registered in the names of the
Holders and represented by the Definitive Notes indicated in such Officers'
Certificate as having been properly tendered.
26
If the principal amount at maturity of the Global Note for the Series
B Notes is less than the principal amount at maturity of the Global Note for the
Series A Notes, the Trustee shall make an endorsement on such Global Note for
Series A Notes indicating a reduction in the principal amount at maturity
represented thereby.
The Trustee shall deliver such Definitive Notes for Series B Notes to
the Holders thereof as indicated in such Officers' Certificate.
SECTION 2.17. LEGENDS.
(a) Except as permitted by subsections (b) or (c) hereof, each Note
shall bear legends relating to restrictions on transfer pursuant to the
securities laws in substantially the form set forth on Exhibit A attached
hereto.
(b) Upon any sale or transfer of a Restricted Security (including any
Restricted Security represented by a Global Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective registration statement under the
Securities Act: (i) in the case of any Restricted Security that is a Definitive
Note, the Registrar shall permit the Holder thereof to exchange such Restricted
Security for a Definitive Note that does not bear the legends required by
subsection (a) above; and (ii) in the case of any Restricted Security
represented by a Global Note, such Restricted Security shall not be required to
bear the legends required by subsection (a) above, but shall continue to be
subject to the provisions of Section 2.06(d) hereof; provided however, that with
respect to any request for an exchange of a Restricted Security that is
represented by a Global Note for a Defini tive Note that does not bear the
legends required by subsection (a) above, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in writing to the Registrar that such
re quest is being made pursuant to Rule 144.
(c) The Company (and the Restricted Subsidiaries) shall issue and the
Trustee shall authenticate Series B Notes in exchange for Series A Notes
accepted for exchange in the Exchange Offer. The Series B Notes shall not bear
the legends required by subsection (a) above unless the Holder of such Series A
Notes is either (i) a broker-dealer who purchased such Series A Notes directly
from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act, (ii) a Person participating in the
distribution of the Series A Notes or (iii) a Person who is an affiliate (as
defined in Rule 144A) of the Company.
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ARTICLE 3
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the Section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the applicable Holders of
the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate, provided that no Notes of
$1,000 or less shall be redeemed in part. In the event of partial redemption by
lot, the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes (including CUSIP number) to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price (including accrued interest and Liquidated
Damages, if any, to the redemption date);
28
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest and Liquidated Damages, if any, on Notes called for redemption
shall cease to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional. On and after the redemption date, unless the Company defaults in
the payment of the redemption price, interest and Liquidated Damages, if any,
will cease to accrue on the Notes or portions thereof called for redemption and
all rights of Holders with respect to such Notes will terminate except for the
right to receive payment of the redemption price upon surrender for redemption.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest and Liquidated Damages, if any, on all
Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest and Liquidated Damages, if any, on,
all Notes to be redeemed.
29
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest and Liquidated Damages, if any, shall
cease to accrue on the Notes or the portions of Notes called for redemption,
whether or not such Notes are presented for payment. If a Note is redeemed on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest and Liquidated Damages, if any, shall
be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest and Liquidated Damages, if any,
shall be paid on the unpaid principal, from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note (accompanied by a
notation of the Subsidiary Guarantees duly endorsed by each Guarantor) equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
Prior to September 30, 2002, the Notes will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 day's notice, at the Make-Whole Price, plus accrued and
unpaid interest and Liquidated Damages, if any, to but excluding the applicable
redemption date. On and after September 30, 2002, the Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest and Liquidated Damages, if any, to but excluding the applicable
redemption date, if redeemed during the twelve-month period beginning on
September 30 of the years indicated below:
Year Percentage
2002.................................. 104.375%
2003.................................. 102.916%
2004.................................. 101.458%
2005 and thereafter................... 100.000%
Notwithstanding the foregoing, at any time during the first 36 months
after the date of issuance of the Notes, the Company may redeem up to 35% of the
initial principal amount of the Notes originally issued with the net proceeds of
one or more Qualified Equity Offerings at a redemption price equal to 108.75% of
the principal amount of such Notes, plus accrued and unpaid interest and
Liquidated Damages, if any, to but excluding the redemption date; provided, that
at least 65% of the principal amount of Notes originally issued remains
outstanding
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immediately after the occurrence of any such redemption and that such redemption
occurs within 60 days following the closing of any such Qualified Equity
Offering.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth below under Section 4.10 and Section 4.14 hereof,
the Company shall not be required to make sinking fund or redemption payments
with respect to the Notes.
SECTION 3.09. ASSET SALE OFFERS.
In the event that the Company shall commence an Asset Sale Offer
pursuant to Section 4.10 hereof, it shall follow the procedures specified below:
The Asset Sale Offer shall remain open for 20 Business Days after the
Commencement Date relating to such Asset Sale Offer, except to the extent
required to be extended by applicable law (as so extended, the "Offer Period").
No later than one Business Day after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount (the "Offer
Amount") of Notes required to be purchased in such Asset Sale Offer pursuant to
Sections 3.02 and 4.10 hereof or, if less than the Offer Amount has been
tendered, all Notes tendered in response to the Asset Sale Offer.
If the Purchase Date is on or after an interest payment record date
and on or before the related interest payment date, any interest and Liquidated
Damages accrued to such Purchase Date shall be paid to the Person in whose name
a Note is registered at the close of business on such record date, and no
additional interest or Liquidated Damages shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
On the Commencement Date of any Asset Sale Offer, the Company shall
send or cause to be sent, by first class mail, a notice to each of the Holders,
with a copy to the Trustee. Such notice, which shall govern the terms of the
Asset Sale Offer, shall contain all instructions and materials necessary to
enable the Holders to tender Notes pursuant to the Asset Sale Offer and shall
state:
(1) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(2) the Offer Amount, the Purchase Price and the Purchase Date;
(3) that any Note not tendered or accepted for payment shall continue
to accrue interest and Liquidated Damages, if any;
(4) that, unless the Company defaults in the payment of the Purchase
Price, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest and Liquidated Damages, if
any, after the Purchase Date;
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(5) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address
specified in the notice prior to the close of business on the
Business Day preceding the Purchase Date;
(6) that Holders shall be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be,
receives, not later than the close of business on the Business
Day preceding the termination of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to
have the Note purchased;
(7) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Trustee shall select the
Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(8) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
On or before 12:00 p.m. on each Purchase Date, the Company shall
irrevocably deposit with the Trustee or Paying Agent in immediately available
funds the aggregate Purchase Price with respect to a principal amount of Notes
equal to the Offer Amount, together with accrued interest and Liquidated
Damages, if any, thereon, to be held for payment in accordance with the terms of
this Section 3.09. On the Purchase Date, the Company shall, to the extent
lawful, (i) accept for payment, on a pro rata basis to the extent necessary, an
aggregate principal amount equal to the Offer Amount of Notes tendered pursuant
to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes or portions thereof tendered, (ii) deliver or cause the Paying Agent or
depositary, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09. The Company, depositary or Paying Agent, as the case
may be, shall promptly (but in any case not later than three Business Days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the Purchase Price with respect to the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Note, and the Trustee shall authenticate and mail or deliver such new Note, to
such Holder, equal in principal amount to any unpurchased portion of such
Holder's Notes surrendered. Any Note not accepted in the Asset Sale Offer shall
be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce in a newspaper of general circulation the
results of the Asset Sale Offer on the Purchase Date.
32
The Asset Sale Offer shall be made by the Company in compliance with
all applicable laws, including, without limitation, Regulation 14E of the
Exchange Act and the rules thereunder, to the extent applicable, and all other
applicable federal and state securities laws.
Each purchase pursuant to this Section 3.09 shall be made pursuant to
the provisions of the second paragraph of Section 3.05 hereof to the extent
applicable.
In the event the amount of Excess Proceeds to be applied to an Asset
Sale Offer would result in the purchase of a principal amount of Notes which is
not evenly divisible by $1,000, the Trustee shall promptly refund to the Company
the portion of such Excess Proceeds that is not necessary to purchase the
immediately lesser principal amount of Notes that is so divisible.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Restricted
Subsidiary, holds as of 10:00 a.m. Eastern Time on the due date money deposited
by the Company in immediately available funds and designated for and sufficient
to pay all principal, premium, if any, and interest then due. The Company shall
pay any and all amounts, including without limitation Liquidated Damages, if
any, on the dates and in the manner required under the Registration Rights
Agreement.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company or any Restricted Subsidiary in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
33
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company will furnish to the Holders of
Notes (i) all quarterly and annual financial information that would be required
to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company
were required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants and (ii) all financial information that would be
required to be included in a Form 8-K filed with the SEC if the Company were
required to file such reports. In addition, whether or not required by the rules
and regulations of the SEC, the Company will file a copy of all such information
and reports with the SEC for public availability (unless the SEC will not accept
such a filing) and make such information available to investors who request it
in writing. Notwithstanding anything to the contrary contained herein, the
Trustee shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
(b) So long as is required for an offer or sale of the Notes to qualify
for an exemption under Rule 144A, the Company (and the Restricted Subsidiaries)
shall, upon request, provide the information required by clause (d)(4)
thereunder to each Holder and to each beneficial owner and prospective purchaser
of Notes identified by any Holder of Restricted Securities.
(c) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate, one of the signers of which
shall be the principal executive, principal financial or principal accounting
officer of the Company, stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made
34
under the supervision of the signing Officers with a view to determining whether
the Company and each Restricted Subsidiary has kept, observed, performed and
fulfilled its obligations under this Indenture (including with respect to any
Restricted Payments made during such year, the basis upon which the calculations
required by Section 4.07 hereof were computed, which calculations may be based
on the Company's latest available financial statements), and further stating, as
to each such Officer signing such certificate, that to the best of his or her
knowledge, the Company and each Restricted Subsidiary has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company and each
Restricted Subsidiary, as the case may be, is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company and each
Restricted Subsidiary, as the case may be, is taking or proposes to take with
respect thereto.
(b) So long as not contrary to the then current professional standards
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03 hereof shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements, nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof insofar as they pertain to
accounting matters or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except (i) such as are contested in good faith and by appropriate proceedings or
(ii) the nonpayment of which would not materially adversely affect the business,
condition (financial or otherwise), operations, performance or properties of the
Company and its Subsidiaries, taken as a whole.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time
35
hereafter in force, that may affect the covenants or the performance of this
Indenture; and each of the Company and the Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly: (a) declare or pay any dividend or make
any distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the Company or such
Restricted Subsidiary or dividends or distributions payable to the Company or
any Restricted Subsidiary); (b) purchase, redeem or otherwise acquire or retire
for value any Equity Interests of the Company or any Restricted Subsidiary or
other Affiliate of the Company (other than any such Equity Interests owned by
the Company or any Restricted Subsidiary); (c) purchase, redeem or otherwise
acquire or retire prior to scheduled maturity for value any Indebtedness that is
subordinated in right of payment to the Notes; or (d) make any Investment other
than a Permitted Investment (all such payments and other actions set forth in
clauses (a) through (d) above being collectively referred to as "Restricted
Payments"), unless, at the time of such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(ii) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the test set forth in
the first paragraph of Section 4.09 hereof; and
(iii) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture is less than (x) the
cumulative EBITDA of the Company minus 1.75 times the cumulative
Consolidated Interest Expense of the Company, in each case for the period
(taken as one accounting period) from June 30, 1996, to the end of the
Company's most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment, plus (y)
the aggregate net Equity Proceeds received by the Company from the issuance
or sale since the date of the 1996 Indenture of Equity Interests of the
Company or of debt securities of the Company that have been converted into
such Equity Interests (other than Equity Interests or convertible debt
securities sold to a Restricted Subsidiary of the Company and other than
Disqualified Stock or debt securities that have been converted into
Disqualified Stock), plus (z) $2.0 million.
The foregoing provisions will not prohibit (A) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (B) the redemption, repurchase, retirement or other acquisition or
retirement for value of any Equity Interests of the Company in exchange for, or
with
36
the net cash proceeds of, the substantially concurrent sale (other than to a
Restricted Subsidiary of the Company) of other Equity Interests of the Company
(other than any Disqualified Stock); (C) the defeasance, redemption, repurchase,
retirement or other acquisition or retirement for value of Indebtedness that is
subordinated or pari passu in right of payment to the Notes in exchange for, or
with the net cash proceeds of, a substantially concurrent issuance and sale
(other than to a Restricted Subsidiary of the Company) of Equity Interests of
the Company (other than Disqualified Stock); (D) the defeasance, redemption,
repurchase, retirement or other acquisition or retirement for value of
Indebtedness that is subordinated or pari passu in right of payment to the Notes
in exchange for, or with the net cash proceeds of, a substantially concurrent
issue and sale (other than to the Company or any of its Restricted Subsidiaries)
of Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated
or pari passu in right of payment to the Notes at a purchase price not greater
than 101% of the principal amount of such Indebtedness in the event of a Change
of Control in accordance with provisions similar to the covenant set forth in
Section 4.14 hereof, provided that prior to or contemporaneously with such
repurchase the Company has made the Change of Control Offer as provided in such
covenant with respect to the Notes and has repurchased all Notes validly
tendered for payment in connection with such Change of Control Offer; and (F)
additional payments to current or former employees or directors of the Company
for repurchases of stock, stock options or other equity interests, provided that
the aggregate amount of all such payments under this clause (F) does not exceed
$500,000 in any year and $2.0 million in the aggregate.
The Restricted Payments described in clauses (B), (C), (E) and (F) of
the immediately preceding paragraph will be Restricted Payments that will be
permitted to be taken in accordance with such paragraph but will reduce the
amount that would otherwise be available for Restricted Payments under clause
(iii) of the first paragraph of this section, and the Restricted Payments
described in clauses (A) and (D) of the immediately preceding paragraph will be
Restricted Payments that will be permitted to be taken in accordance with such
paragraph and will not reduce the amount that would otherwise be available for
Restricted Payments under clause (iii) of the first paragraph of this section.
If an Investment results in the making of a Restricted Payment, the
aggregate amount of all Restricted Payments deemed to have been made as
calculated under the foregoing provision will be reduced by the amount of any
net reduction in such Investment (resulting from the payment of interest or
dividends, loan repayment, transfer of assets or otherwise) to the extent such
net reduction is not included in the Company's EBITDA; provided, however, that
the total amount by which the aggregate amount of all Restricted Payments may be
reduced may not exceed the lesser of (a) the cash proceeds received by the
Company and its Restricted Subsidiaries in connection with such net reduction
and (b) the initial amount of such Investment.
If the aggregate amount of all Restricted Payments calculated under
the foregoing provision includes an Investment in an Unrestricted Subsidiary or
other Person that thereafter becomes a Restricted Subsidiary, such Investment
will no longer be counted as a Restricted Payment for purposes of calculating
the aggregate amount of Restricted Payments. For the purpose of making any
calculations under this Indenture, (a) an Investment will include the fair
market value of the net assets of any Restricted Subsidiary at the time that
such Restricted
37
Subsidiary is designated an Unrestricted Subsidiary and will exclude the fair
market value of the net assets of any Unrestricted Subsidiary that is designated
as a Restricted Subsidiary, (b) any property transferred to or from an
Unrestricted Subsidiary will be valued at fair market value at the time of such
transfer, provided that, in each case, the fair market value of an asset or
property is as determined by the Board of Directors in good faith, and (c)
subject to the foregoing, the amount of any Restricted Payment, if other than
cash, will be determined by the Board of Directors, whose good faith
determination will be conclusive.
The Board of Directors may designate a Restricted Subsidiary to be an
Unrestricted Subsidiary in compliance with Section 4.17 hereof. Upon such
designation, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments made at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.07. Such designation will only be
permitted if such Restricted Payment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) (i) pay dividends or make any other distributions
to the Company or any of its Restricted Subsidiaries (A) on its Capital Stock or
(B) with respect to any other interest or participation in, or measured by, its
profits, or (ii) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries, (b) make loans or advances to the Company or any of its
Restricted Subsidiaries or (c) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (1) Existing Indebtedness as in
effect on the date of this Indenture, (2) the Credit Agreement as in effect as
of the date of this Indenture, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancing
thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are no more
restrictive in the aggregate with respect to such dividend and other payment
restrictions than those contained in the Credit Agreement as in effect on the
date of this Indenture, (3) this Indenture and the Notes, (4) applicable law,
(5) any instrument governing Indebtedness or Capital Stock of a Person acquired
by the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, provided that the EBITDA of such Person is not taken into account in
determining whether such acquisition was permitted by the terms of this
Indenture, (6) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices, (7) restrictions
on the transfer of property subject to purchase money obligations or Capital
Lease Obligations otherwise permitted by clause (e) of Section 4.09 hereof,
38
or (8) permitted Refinancing Indebtedness, provided that the restrictions
contained in the agreements governing such Refinancing Indebtedness are no more
restrictive in the aggregate than those contained in the agreements governing
the Indebtedness being refinanced.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty
or otherwise become directly or indirectly liable with respect to (collectively,
"incur") any Indebtedness (including Acquired Debt) and the Company will not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company may incur Indebtedness and may permit
a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence
and after giving effect thereto the Leverage Ratio would be less than 6.5 to
1.0.
The foregoing limitations will not apply to (a) the incurrence by the
Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount
not to exceed $100.0 million at any one time outstanding, (b) the issuance by
the Restricted Subsidiaries of Subsidiary Guarantees, (c) the incurrence by the
Company and its Restricted Subsidiaries of the Existing Indebtedness, (d) the
issuance by the Company of the Notes, (e) the incurrence by the Company and its
Restricted Subsidiaries of Capital Lease Obligations and/or additional
Indebtedness constituting purchase money obligations up to an aggregate of $2.5
million at any one time outstanding, provided that the Liens securing such
Indebtedness constitute Permitted Liens, (f) the incurrence of Indebtedness
between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted
Subsidiaries, (g) Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be outstanding,
(h) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness arising out of letters of credit, performance bonds, surety bonds
and bankers' acceptances incurred in the ordinary course of business up to an
aggregate of $2.0 million at any one time outstanding, (i) the incurrence by the
Company and its Restricted Subsidiaries of Indebtedness consisting of
guarantees, indemnities or obligations in respect of purchase price adjustments
in connection with the acquisition or disposition of assets, including, without
limitation, shares of Capital Stock, and (j) the incurrence by the Company and
its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for,
or the proceeds of which are used to repay, redeem, defease, extend, refinance,
renew, replace or refund, Indebtedness referred to in clauses (b) through (e)
above, and this clause (j).
SECTION 4.10. ASSET SALES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, (a) sell, lease, convey or otherwise dispose of any assets
(including by way of a Sale and Leaseback Transaction, but excluding a
Qualifying Sale and Leaseback Transaction) other than sales of inventory in the
ordinary course of business (provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company will be
governed by the provisions of Section 4.14 hereof and/or the provisions of
Section 5.01 hereof, and not by the provisions of this Section 4.10), or (b)
issue or sell Equity Interests of any of its Restricted
39
Subsidiaries, that, in the case of either clause (a) or (b) above, whether in a
single transaction or a series of related transactions, (i) have a fair market
value in excess of $1.0 million, or (ii) result in Net Proceeds in excess of
$1.0 million (each of the foregoing, an "Asset Sale"), unless (x) the Company
(or the Restricted Subsidiary, as the case may be) receives consideration at the
time of such Asset Sale at least equal to the fair market value (evidenced by an
Officers' Certificate delivered to the Trustee, and for Asset Sales having a
fair market value or resulting in net proceeds in excess of $5.0 million,
evidenced by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the assets sold or otherwise disposed
of and (y) at least 75% of the consideration therefor received by the Company or
such Restricted Subsidiary is in the form of cash or like-kind assets (in each
case as determined in good faith by the Company, evidenced by a resolution of
the Board of Directors and certified by an Officers' Certificate delivered to
the Trustee); provided, however, that the amount of (A) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance sheet
or in the notes thereto) of the Company or such Restricted Subsidiary (other
than liabilities that are by their terms subordinated to the Notes or any
Subsidiary Guarantee) that are assumed by the transferee of any such assets and
(B) any notes or other obligations received by the Company or such Restricted
Subsidiary from such transferee that are immediately converted by the Company or
such Restricted Subsidiary into cash (to the extent of the cash received) or
Cash Equivalents, shall be deemed to be cash for purposes of this provision; and
provided, further, that the 75% limitation referred to in the foregoing clause
(y) shall not apply to any Asset Sale in which the cash portion of the
consideration received therefrom is equal to or greater than what the after-tax
proceeds would have been had such Asset Sale complied with the aforementioned
75% limitation. A transfer of assets or issuance of Equity Interests by the
Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary will
not be deemed to be an Asset Sale.
Within 360 days of any Asset Sale, the Company may, at its option,
apply an amount equal to the Net Proceeds from such Asset Sale either (a) to
permanently reduce Senior Debt, or (b) to an investment in a Restricted
Subsidiary or in another business or capital expenditure or other
long-term/tangible assets, in each case, in the same line of business as the
Company or any of its Restricted Subsidiaries was engaged in on the date of this
Indenture or in businesses similar or reasonably related thereto. Pending the
final application of any such Net Proceeds, the Company may temporarily reduce
Senior Bank Debt or otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture. Any Net Proceeds from such Asset Sale that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $5.0 million, the Company shall make an offer to all Holders of
Notes and the holders of any future Indebtedness ranking pari passu with the
Notes, which Indebtedness contains similar provisions requiring the Company to
repurchase such Indebtedness (an "Asset Sale Offer"), to purchase the maximum
principal amount of Notes and such other Indebtedness that may be purchased out
of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase, in accordance with the procedures set forth in this Indenture;
provided, however, that prior to making any such Asset Sale Offer, the Company
may, to the extent required by the 1996 Indenture, use such Excess Proceeds to
repurchase the 1996 Notes. To the extent that the aggregate amount of Notes and
other pari
40
passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes to be purchased on a pro rata basis. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
An Asset Sale Offer shall be made pursuant to the provisions of
Section 3.09 hereof. No later than the date which is five Business Days after
the date on which the aggregate amount of Excess Proceeds exceeds $5 million,
the Company shall notify the Trustee of such Asset Sale Offer and provide the
Trustee with an Officers' Certificate setting forth the calculations used in
determining the amount of Net Proceeds to be applied to the purchase of Notes.
The Company shall commence or cause to be commenced the Asset Sale Offer on a
date no later than 15 Business Days after such notice (the "Commencement Date").
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with a non-Affiliated Person and (b) the Company delivers
to the Trustee (i) with respect to any Affiliate Transaction involving aggregate
payments in excess of $1.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (a) above and such Affiliate Transaction is approved by a
majority of the disinterested members of the Board of Directors and (ii) with
respect to any Affiliate Transaction involving aggregate payments in excess of
$5.0 million, an opinion as to the fairness to the Company or such Restricted
Subsidiary from a financial point of view issued by an investment banking firm
of national standing; provided, however, that (A) any employment agreement
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and consistent with the past practice of the Company
or such Restricted Subsidiary, (B) transactions between or among the Company
and/or its Restricted Subsidiaries, (C) transactions permitted by the provisions
of Section 4.07 hereof and (D) the grant of stock, stock options or other equity
interests to employees and directors of the Company in accordance with duly
adopted Company stock grant, stock option and similar plans, in each case, shall
not be deemed Affiliate Transactions; and further provided that (1) the
provisions of clause (b) shall not apply to sales of inventory by the Company or
any Restricted Subsidiary to any Affiliate in the ordinary course of business
and (2) the provisions of clause (b)(ii) shall not apply to loans or advances to
the Company or any Restricted Subsidiary from, or equity investments in the
Company or any Restricted Subsidiary by, any Affiliate to the extent permitted
by Section 4.09 hereof.
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SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than a Permitted Lien) upon any property or assets now
owned or hereafter acquired, or any income, profits or proceeds therefrom, or
assign or otherwise convey any right to receive income therefrom, unless (a) in
the case of any Lien securing any Indebtedness that is subordinate to the Notes,
the Notes are secured by a Lien on such property, assets or proceeds that is
senior in priority to such Lien and (b) in the case of any other Lien, the Notes
are equally and ratably secured with the obligation or liability secured by such
Lien.
SECTION 4.13. ADDITIONAL SUBSIDIARY GUARANTEES.
If any entity (other than an Excluded Restricted Subsidiary) shall
become a Restricted Subsidiary after the date of this Indenture, then such
Restricted Subsidiary shall execute a Subsidiary Guarantee and deliver an
opinion of counsel with respect thereto, in accordance with the terms of this
Indenture.
No Restricted Subsidiary shall consolidate with or merge with or into
(whether or not such Restricted Subsidiary is the surviving Person), another
Person (other than the Company) whether or not affiliated with such Restricted
Subsidiary unless (a) subject to the provisions of the following paragraph, the
Person formed by or surviving any such consolidation or merger (if other than
such Restricted Subsidiary) assumes all the obligations of such Restricted
Subsidiary under its Subsidiary Guarantee, if any, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee; (b)
immediately after giving effect to such transaction, no Default or Event of
Default exists; and (c) such Restricted Subsidiary, or any Person formed by or
surviving any such consolidation or merger, would be permitted to incur,
immediately after giving effect to such transaction, at least $1.00 of
additional Indebtedness pursuant to Section 4.09 hereof.
In the event of (a) a sale or other disposition of all of the assets
of any Guarantor by way of merger, consolidation or otherwise, (b) a sale or
other disposition of all of the capital stock of any Guarantor, or (c) the
designation of a Guarantor as an Unrestricted Subsidiary in accordance with the
terms of Section 4.17, then such Guarantor (in the event of a sale or other
disposition, by way of such a merger, consolidation or otherwise, of all of the
capital stock of such Guarantor, or in the event of the designation of such
Guarantor as an Unrestricted Subsidiary) or the corporation acquiring the
property (in the event of a sale or other disposition of all of the assets of
such Guarantor) shall be released and relieved of any obligations under its
Subsidiary Guarantee; provided that the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Indenture.
42
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes will
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, to but excluding the date of purchase
(the "Change of Control Payment"). Within 30 calendar days following any Change
of Control, the Company will mail a notice to each Holder stating:
(a) that the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Notes tendered will be accepted for
payment;
(b) the purchase price and the purchase date, which will be no
earlier than 30 calendar days nor later than 60 calendar days from the
date such notice is mailed (the "Change of Control Payment Date");
(c) that any Note not tendered will continue to accrue
interest;
(d) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest and
Liquidated Damages, if any, on and after the Change of Control Payment
Date;
(e) that Holders electing to have any Notes purchased pursuant
to a Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent at the address
specified in such notice prior to the close of business on the fifth
Business Day preceding the Change of Control Payment Date;
(f) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have such Notes
purchased; and
(g) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable to the repurchase of the Notes in connection
with a Change of Control.
43
On the Change of Control Payment Date, the Company will, to the
extent lawful, (a) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (b) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (c) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company. The Paying Agent will
promptly mail to each Holder of Notes so accepted the Change of Control Payment
for such Notes, and the Trustee will promptly authenticate and mail to each
Holder a new Note equal in principal amount to any unpurchased portion of the
Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof. Prior to complying
with the provisions of this Section 4.14, but in any event within 90 calendar
days following a Change of Control, the Company shall either repay all
outstanding Senior Debt or obtain the requisite consents, if any, under all
agreements governing outstanding Senior Debt to permit the repurchase of Notes
required by this Section 4.14. The Company shall publicly announce in The Wall
Street Journal, or if no longer published, a national newspaper of general
circulation, the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Article 5 and Article 11 hereof, as the case may be, the
Company and each of the Restricted Subsidiaries shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of their
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company, any such Restricted
Subsidiary or any such Subsidiary, as the case may be, and (ii) the rights
(charter and statutory), licenses and franchises of the Company, the Restricted
Subsidiaries and their respective Subsidiaries; provided, however, that the
Company and the Restricted Subsidiaries shall not be required to preserve any
such right, license or franchise, or the corporate, partnership or other
existence of any of their respective Subsidiaries, if an officer of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company, the Restricted Subsidiaries and their
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
SECTION 4.16. CERTAIN SENIOR SUBORDINATED DEBT.
Notwithstanding the provisions of Section 4.09 hereof, (a) the
Company shall not incur any Indebtedness that is subordinated or junior in right
of payment to any Senior Debt of the Company and senior in any respect in right
of payment to the Notes, and (b) the Company shall not permit any Restricted
Subsidiary to incur any Indebtedness that is subordinated or junior in right of
payment to its Senior Debt and senior in any respect in right of payment to its
Subsidiary Guarantee.
44
SECTION 4.17. DESIGNATION OF UNRESTRICTED SUBSIDIARIES.
The Board of Directors may designate any Subsidiary (including any
Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as: (i) neither the Company nor any Restricted
Subsidiary is directly or indirectly liable for any Indebtedness of such
Subsidiary; (ii) no default with respect to any Indebtedness of such Subsidiary
would permit (upon notice, lapse of time or otherwise) any holder of any other
Indebtedness of the Company or any Restricted Subsidiary to declare a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; (iii) any Investment in such Subsidiary
deemed to be made as a result of designating such Subsidiary an Unrestricted
Subsidiary will not violate the provisions of Section 4.07 hereof; (iv) neither
the Company nor any Restricted Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than (A) those that might be obtained at the time
from Persons who are not Affiliates of the Company or (B) administrative, tax
sharing and other ordinary course contracts, agreements, arrangements and
understandings or obligations entered into in the ordinary course of business;
and (v) neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other Equity Interests in
such Subsidiary, or to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results, other than as permitted under Section 4.07 hereof. Notwithstanding the
foregoing, the Company may not designate as an Unrestricted Subsidiary any
Subsidiary which, on the date of this Indenture, is a Significant Subsidiary,
and may not sell, transfer or otherwise dispose of any properties or assets of
any such Significant Subsidiary to an Unrestricted Subsidiary, other than in the
ordinary course of business.
The Board of Directors may designate any Unrestricted Subsidiary as a
Restricted Subsidiary; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be
permitted if (i) such Indebtedness is permitted under Section 4.09 hereof and
(ii) no Default or Event of Default would occur as a result of such designation.
SECTION 4.18. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary
to, enter into any Sale and Leaseback Transaction unless (a) the consideration
received in such Sale and Leaseback Transaction is at least equal to the fair
market value of the property sold, as determined by a resolution of the Board of
Directors, and (b) the Company or such Restricted Subsidiary could incur the
Attributable Indebtedness in respect of such Sale and Leaseback Transaction in
compliance with Section 4.09 hereof.
45
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless (a) the
Company is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia; (b) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of the Company under the Notes, this Indenture (pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee) and the Registration
Rights Agreement; (c) immediately after such transaction no Default or Event of
Default exists; and (d) the Company or any Person formed by or surviving any
such consolidation or merger, or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made will, at the time of
such transaction and after giving pro forma effect thereto, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the first paragraph
of Section 4.09 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company or the Company and its Subsidiaries on a consolidated basis in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture and the Registration Rights Agreement referring to
the "Company" shall refer instead to the successor corporation and not to the
Company), and may exercise every right and power of the Company under this
Indenture, the Notes and the Registration Rights Agreement with the same effect
as if such successor Person had been named as the Company herein; provided,
however, that the predecessor Company shall not be relieved from the obligation
to pay the principal of and interest on the Notes except in the case of a sale
of all of the Company's assets that meets the requirements of Section 5.01
hereof.
46
ARTICLE 6
CERTAIN DEFAULT PROVISIONS
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company and the Guarantors default in the payment of
interest or Liquidated Damages on the Notes (whether or not prohibited
by the subordination provisions of Article 10 or Article 11 hereof, as
the case may be) when the same becomes due and payable and such default
continues for a period of 30 days;
(b) the Company and the Guarantors default in the payment of
principal of or premium (including any Make-Whole Amount), if any, on
the Notes (whether or not prohibited by the subordination provisions of
Article 10 or Article 11 hereof, as the case may be) when the same
becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise;
(c) the Company fails to comply with the provisions of Section
4.14 hereof;
(d) the Company or the Guarantors fail to comply with any of
their other respective agreements or covenants in, or provisions of,
the Notes, the Subsidiary Guarantees or this Indenture and the Default
continues for the period and after the notice specified below;
(e) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is
Guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or Guarantee now exists or shall be created
hereafter if (i) such default results in the acceleration of such
Indebtedness prior to its express maturity or shall constitute a
default in the payment of such Indebtedness at final maturity of such
Indebtedness and (ii) the principal amount of such Indebtedness that
has been accelerated or not paid at maturity, together with the
principal amount of any other Indebtedness that has been accelerated or
not paid at maturity, exceeds $5.0 million;
(f) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such
judgments remain unpaid, undischarged or unstayed for a period of 60
days, provided that the aggregate of all such unpaid, undischarged or
unstayed judgments exceeds $5.0 million;
(g) except as otherwise permitted hereunder, any Subsidiary
Guarantee issued by a Guarantor shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Guarantor (or its successors or
47
assigns), or any Person acting on behalf of any Guarantor (or its
successors or assigns), shall deny or disaffirm its obligations in
writing under its Subsidiary Guarantee;
(h) the Company or any of its Restricted Subsidiaries that is
a Significant Subsidiary:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) admits in writing its inability generally to pay
its debts as the same become due,
in each case, pursuant to or within the meaning of any Bankruptcy Law;
or
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Restricted Subsidiary that is a Significant Subsidiary of the
Company in an involuntary case,
(ii) appoints a Custodian of the Company or any
Restricted Subsidiary that is a Significant Subsidiary of the
Company or for all or substantially all of the property of the
Company or any Restricted Subsidiary that is a Significant
Subsidiary of the Company, or
(iii) orders the liquidation of the Company or any
Restricted Subsidiary that is a Significant Subsidiary of the
Company,
and such order or decree remains unstayed and in effect for 60
consecutive days.
A Default under clause (d) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in principal amount of the
then outstanding Notes notify the Company and the Trustee, of the Default and
the Company does not cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
In the case of any Event of Default pursuant to the provisions of this
Section 6.01 occurring by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding payment
of the Make-Whole Price or premium, as applicable, that the Company would have
had to pay if the Company then had elected to redeem
48
the Notes pursuant to Section 3.07 hereof, the applicable Make-Whole Price, or
an equivalent premium, as the case may be, shall become and be immediately due
and payable to the extent permitted by law upon acceleration of the Notes as
provided below, anything in this Indenture or in the Notes to the contrary
notwithstanding.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clauses (h)(i) through (h)(v) and (i) of Section 6.01 hereof relating to the
Company or any Significant Subsidiary) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
then outstanding Notes by notice to the Company and the Trustee may declare the
unpaid principal of and any accrued interest and Liquidated Damages, if any, on
all the Notes to be due and payable. Upon such declaration the principal and
interest and Liquidated Damages, if any, shall be due and payable immediately
(together with the premium referred to in Section 6.01 hereof, if applicable);
provided, however, that if any Obligation with respect to Senior Bank Debt is
outstanding pursuant to the Credit Agreement upon a declaration of acceleration
of the Notes, the principal, premium, if any, and interest and Liquidated
Damages, if any, on the Notes will not be payable until the earlier of (1) the
day which is five Business Days after written notice of acceleration is received
by the Company and the Credit Agent, and (2) the date of acceleration of the
Indebtedness under the Credit Agreement. If an Event of Default specified in
clauses (h)(i) through (h)(v) or (i) of Section 6.01 hereof relating to the
Company or any Significant Subsidiary occurs, such an amount shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. In the event of a declaration of
acceleration of the Notes because an Event of Default has occurred and is
continuing as a result of the acceleration of any Indebtedness described in
Section 6.01(e) hereof, the declaration of acceleration of the Notes shall be
automatically annulled if the holders of any Indebtedness described in Section
6.01(e) have rescinded the declaration of acceleration in respect of such
Indebtedness within 30 days of the date of such declaration and if (a) the
annulment of the acceleration of the Notes would not conflict with any judgment
or decree of a competent jurisdiction, and (b) all existing Events of Default,
except non-payment of principal or interest on the Notes that became due solely
because of the acceleration of the Notes, have been cured or waived.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
49
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf of the Holders
of all of the Notes waive any existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the premium, if any, interest and Liquidated Damages, if any, on, or
the principal of the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes if, and only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default or the Trustee receives such notice
from the Company;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note. Nothing contained in this
50
Section 6.06 shall affect the right of a Holder of a Note to ▇▇▇ for enforcement
of any overdue payment thereon.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Subject to Articles 10 and 11 hereof, notwithstanding any other
provision of this Indenture, the right of any Holder of a Note to receive
payment of principal of, premium, if any, and interest and Liquidated Damages,
if any, on the Note, on or after the respective due dates expressed in the Note
(including in connection with a Purchase Offer), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, interest and Liquidated Damages, if
any, remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes, including the Guarantors), its creditors
or its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
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SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to the holders of Senior Debt of the Company or the
Restricted Subsidiaries, as the case may be, to the extent required by
Article 10 or Article 11 hereof, as applicable;
Third: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, interest and Liquidated Damages,
if any, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, premium, if
any, interest and Liquidated Damages, respectively; and
Fourth: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
52
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) Except with respect to Sections 4.01 and 4.04 herein, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article 4 hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.01(a), 6.01(b), 4.01 and 4.04 herein or (ii)
any
53
Default or Event of Default of which a Responsible Officer of the Trustee shall
have received written notification or obtained actual knowledge.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its choice and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any
Restricted Subsidiary or any Affiliate of the Company or any Restricted
Subsidiary with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction
54
under any provision of this Indenture, it shall not be responsible for the use
or application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
actually known to the Trustee, the Trustee shall mail to the Holders of the
Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest or Liquidated Damages, if any, on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Restricted Subsidiaries shall be jointly and
severally obligated to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for its
acceptance of this Indenture and services hereunder. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company and the Restricted Subsidiaries shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
The Company and the Restricted Subsidiaries shall indemnify each of the
Trustee and any predecessor Trustee against any and all losses, liabilities,
damages, claims or expenses, including taxes (other than taxes based on the
income of the Trustee), incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company and the
Restricted Subsidiaries (including this Section 7.07), and defending itself
against any claim (whether asserted by the
55
Company, any Restricted Subsidiary or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company and the
Restricted Subsidiaries of their obligations hereunder. The Company and the
Restricted Subsidiaries shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company and the
Restricted Subsidiaries shall pay the reasonable fees and expenses of such
counsel. The Company and the Restricted Subsidiaries need not pay for any
settlement made without their consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Restricted Subsidiaries under
this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
To secure the Company's and the Restricted Subsidiaries' payment
obligations in this Section, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
56
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, any
Restricted Subsidiary, or the Holders of Notes of at least 10% in principal
amount of the then outstanding Notes may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's and the Restricted Subsidiaries' obligations
under Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
57
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, each of the Company and the Guarantors, if any,
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with respect to
all outstanding Notes and Subsidiary Guarantees on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes, which
shall thereafter be deemed to be "outstanding" only for the purposes of Section
8.05 hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due, (b) the Company's
and Guarantors' obligations with respect to such Notes under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith and (d) this Article 8. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, each of the Company and the Guarantors, if any,
shall, subject to the satisfaction
58
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.05, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 and Article V hereof with respect
to the outstanding Notes and Subsidiary Guarantees on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture, such
Notes and the Subsidiary Guarantees, if any, shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(f)
and Section 6.01(h) and 6.01(i) hereof shall not constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest and Liquidated Damages, if any, on
the outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, of such principal or
installment of principal of, premium, if any, or interest on the
outstanding Notes;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States (which counsel may be an employee of the Company or
any Subsidiary of the Company) reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
Issuance Date, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same
59
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States (which counsel may be an employee of the Company or
any Subsidiary of the Company) reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 6.01(h)
and 6.01(i) hereof are concerned, at any time in the period ending on
the 91st day after the date of deposit (or greater period of time in
which any such deposit of trust funds may remain subject to Bankruptcy
Law insofar as those apply to the deposit by the Company);
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over any
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine,
60
to the Holders of such Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest and Liquidated Damages, if
any, but such money need not be segregated from other funds except to the extent
required by law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest, if any, on any Note and remaining unclaimed for two years after
such principal, and premium, if any, or interest, if any, have become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Restricted Subsidiaries' obligations
under this Indenture, the Notes and the Subsidiary Guarantees shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 8.02 or 8.03 hereof, as the case may
be; provided, however, that, if the Company and the Restricted Subsidiaries make
any payment of principal of, premium, if any, or interest, if any, on
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any Note following the reinstatement of its obligations, the Company and the
Restricted Subsidiaries shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's or any
Guarantor's obligations to the Holders of the Notes in the case of a
merger or consolidation pursuant to Article Five or Article 11 hereof,
as the case may be;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes (including providing for
additional Subsidiary Guarantees pursuant to Section 4.13 hereof) or
that does not materially adversely affect the legal rights hereunder of
any Holder of the Note; or
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including consents obtained
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in connection with a tender offer or exchange offer for the Notes), and, subject
to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes or Liquidated Damages, if any, except
a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence reasonably
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company and the Guarantors in the
execution of such amended or supplemental Indenture unless such amended or
supplemental Indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to Holders of Notes affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental Indenture
or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may waive compliance
in a particular instance by the Company or any Guarantor with any provision of
this Indenture, the Notes or the Subsidiary Guarantees. However, without the
consent of each Holder affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter any of the provisions with respect to the redemption
of the Notes in a manner adverse to the Holders of the Notes;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if
any, on the Notes (except a rescission of acceleration of the Notes by
the Holders of at least a majority in aggregate principal amount
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of the then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of or premium, if any, or interest or
Liquidated Damages, if any, on the Notes;
(g) waive a redemption payment with respect to any Note (other
than a payment required by Section 4.10 or Section 4.14 hereof);
(h) except pursuant to Article 4, Article 8 and Article 11
hereof, release any Guarantor from its obligations under its Subsidiary
Guarantee, or change any Subsidiary Guarantee in any manner that would
materially adversely affect the Holders; or
(i) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
(accompanied by a notation of the Subsidiary Guarantees duly endorsed by the
Restricted Subsidiaries) that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
and the Guarantors may not sign an amendment or supplemental Indenture until the
Board of Directors of the Company and each of the Guarantors approves it. In
executing any amended or supplemental indenture, the Trustee shall be entitled
to receive and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company, the Trustee and each Holder by accepting a Note agrees,
that the indebtedness and obligations evidenced by the Note (a) rank pari passu
with the 1996 Notes, and (b) are subordinated in right of payment, to the extent
and in the manner provided in this Article, to the prior payment in full, in
cash, of all Obligations with respect to Senior Debt of the Company (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the holders of
Senior Debt of the Company.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities:
(1) holders of Senior Debt of the Company shall be entitled to
receive payment in full in cash of all Obligations due in respect of
such Senior Debt of the Company (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Senior Debt of the Company, whether or not allowed as a
claim in such proceeding) before Holders shall be entitled to receive
any payment or distribution from the Company with respect to the Notes;
and
(2) until all Obligations with respect to Senior Debt of the
Company (as provided in subsection (1) above) are paid in full in cash,
any payment or distribution to which the Trustee or any Holder would be
entitled but for this Article shall be made to holders of Senior Debt
of the Company, as their interests may appear.
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SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any payment or distribution upon or in respect
of the Notes, including, without limitation, by way of set-off or otherwise, or
redeem (or make a deposit in redemption of), defease or acquire any of the
Notes, for cash, properties or securities if:
(i) a default in the payment of any principal, premium, if
any, or interest or other Obligations (a "Payment Default") with
respect to Senior Debt of the Company occurs and is continuing; or
(ii) a default (other than a Payment Default) or any event
that, after notice or passage of time would become a default (a
"Non-Monetary Default"), on Senior Debt of the Company occurs and is
continuing that then permits holders of the Senior Debt of the Company
to accelerate its maturity and the Trustee receives a notice of the
default (a "Payment Blockage Notice") from a Person who may give it
pursuant to Section 10.11 hereof. Any number of such Payment Blockage
Notices may be given, provided, however, that (i) not more than one
Payment Blockage Notice may be commenced during any period of 360
consecutive days and (ii) any Non-Monetary Default that existed or was
continuing on the date of delivery of any such notice to the Trustee
(to the extent the holder of Designated Senior Debt, or such trustee or
agent, giving such Payment Blockage Notice had knowledge of the same)
shall not be the basis for a subsequent Payment Blockage Notice, unless
such default has been cured or waived for a period of not less than 90
days.
The Company may and shall resume payments on and distributions in
respect of the Notes and all Obligations with respect thereto, and may acquire
such Notes or Obligations upon the earlier of:
(1) in the case of a payment default, the date upon which such
default is cured or waived, or
(2) in the case of a Non-Monetary Default, on the earlier of
the date on which such Non-Monetary Default is cured or waived or 179
days after the date on which the applicable Payment Blockage Notice is
received, if the maturity of such Senior Debt of the Company has not
been accelerated,
if this Article 10 otherwise permits the payment, distribution or acquisition at
the time thereof.
SECTION 10.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify Representatives of the holders of Senior Debt
of the Company of the acceleration.
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SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives from the Company
any payment of any Obligations with respect to the Notes at a time when the
Trustee or such Holder, as applicable, has actual knowledge that such payment is
prohibited by Section 10.02 or 10.03 hereof, such payment shall be held by the
Trustee or such Holder in trust for the benefit of, and shall be paid forthwith
over and delivered upon written request to, the holders of Senior Debt of the
Company, as their interests may appear, or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Debt of the
Company may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Senior Debt of the
Company remaining unpaid to the extent necessary to pay such Obligations in full
in accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt of the Company.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt of the Company shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt of the Company, and shall
not be liable to any such holders if the Trustee shall pay over or distribute to
or on behalf of Holders or the Company or any other Person money or assets to
which any holders of Senior Debt of the Company shall be entitled by virtue of
this Article 10, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt of the
Company as provided in this Article.
SECTION 10.07. SUBROGATION.
After all Obligations with respect to Senior Debt of the Company are
paid in full, in cash, and until the Notes are paid in full, Holders shall be
subrogated (equally and ratably with all other Indebtedness pari passu with the
Notes) to the rights of holders of Senior Debt of the Company to receive
distributions applicable to Senior Debt of the Company to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt of the Company. A distribution made under this Article to holders
of Senior Debt of the Company that otherwise would have been made to Holders is
not, as between the Company and Holders, a payment by the Company on the Notes.
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SECTION 10.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders of
Senior Debt of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt
of the Company; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt of the Company to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article 10 to pay principal of,
premium or interest on a Note on the due date, the failure is still a Default or
Event of Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt of the Company to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt of the Company, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt of the Company and other
Indebtedness of the Company, the amount or amounts thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent
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may continue to make payments on the Notes, unless the Trustee shall have
received at its Corporate Trust Office at least one Business Day prior to the
date of such payment a Payment Blockage Notice. Only the holders or the
Representative of holders of Designated Senior Debt of the Company may give a
Payment Blockage Notice. Nothing in this Article 10 shall impair the claims of,
or payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt of the Company with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file such
claim, the Representatives of the Senior Debt of the Company are hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
SECTION 10.13. AMENDMENTS.
The provisions of this Article 10 shall not be amended or modified
without the written consent of the holders of all Senior Debt of the Company.
ARTICLE 11
SUBSIDIARY GUARANTEES
SECTION 11.01. SUBSIDIARY GUARANTEE.
Each Subsidiary that is a signatory hereto and each Restricted
Subsidiary of the Company which in accordance with Section 4.13 hereof is
required to guarantee the obligations of the Company under the Notes (each, a
"Guarantor"), upon execution of a supplemental indenture, hereby jointly and
severally unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee irrespective of the validity or enforceability of this
Indenture, the Notes or the obligations of the Company under this Indenture or
the Notes, that: (i) the principal of and interest on and Liquidated Damages, if
any, with respect to the Notes will be paid in full when due, whether at the
maturity or interest payment or mandatory redemption date, by acceleration, call
for redemption or otherwise, and interest on the overdue principal of and
interest, if any, on the Notes and all other obligations of the Company to the
Holders or the Trustee under this Indenture or the Notes will be promptly paid
in full or performed, all in accordance with the terms of this Indenture and the
Notes; and (ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, they will be paid in full when due or
performed in accordance with the
69
terms of the extension or renewal, whether at maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed for whatever
reason, each Guarantor will be obligated to pay the same whether or not such
failure to pay has become an Event of Default which could cause acceleration
pursuant to Section 6.02 hereof. Each Guarantor agrees that this is a guarantee
of payment not a guarantee of collection.
Each Guarantor hereby agrees that its obligations with regard to this
Subsidiary Guarantee shall be joint and several and unconditional, irrespective
of the validity or enforceability of the Notes or the obligations of the Company
under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Notes or the obligations of the Company under this
Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (a) any right to require the Trustee, the Holders or the Company
(each, a "Benefitted Party") to proceed against the Company or any other Person
or to proceed against or exhaust any security held by a Benefitted Party at any
time or to pursue any other remedy in any Benefitted Party's power before
proceeding against such Guarantor; (b) the defense of the statute of limitations
in any action hereunder or in any action for the collection of any Indebtedness
or the performance of any obligation hereby guaranteed; (c) any defense that may
arise by reason of the incapacity, lack of authority, death or disability of any
other Person or the failure of a Benefitted Party to file or enforce a claim
against the estate (in administration, bankruptcy or any other proceeding) of
any other Person; (d) demand, protest and notice of any kind including but not
limited to notice of the existence, creation or incurring of any new or
additional Indebtedness or obligation or of any action or non-action on the part
of such Guarantor, the Company, any Benefitted Party, any creditor of such
Guarantor, the Company or on the part of any other Person whomsoever in
connection with any Indebtedness or obligations hereby guaranteed; (e) any
defense based upon an election of remedies by a Benefitted Party, including but
not limited to an election to proceed against such Guarantor for reimbursement;
(f) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (g) any defense arising because of a
Benefitted Party's election, in any proceeding instituted under Bankruptcy Law,
of the application of 11 U.S.C. Section 1111(b)(2); or (h) any defense based on
any borrowing or grant of a security interest under 11 U.S.C. Section 364. Each
Guarantor hereby covenants that its Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in its Subsidiary
Guarantee and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to either the Company or any Guarantor, or any Custodian acting in
relation to either the Company or such Guarantor, any amount paid by the Company
or such Guarantor to the Trustee or such Holder, the applicable Subsidiary
Guarantees, to the extent theretofore discharged, shall be reinstated and be in
full force and effect. Each Guarantor agrees that it will not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
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Each Guarantor further agrees that, as between such Guarantor, on the
one hand, and the Holders and the Trustee, on the other hand, (i) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Section
6.02 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration as to the
Company or any other obligor on the Notes of the obligations guaranteed hereby,
and (ii) in the event of any declaration of acceleration of those obligations as
provided in Section 6.02 hereof, those obligations (whether or not due and
payable) will forthwith become due and payable by such Guarantor for the purpose
of this Subsidiary Guarantee.
SECTION 11.02. SUBORDINATION.
Each Guarantor, the Trustee, and each Holder by accepting a Note
agrees, that the indebtedness and obligations under the Subsidiary Guarantees
(a) rank pari passu with the guarantees of the 1996 Notes provided under the
1996 Indenture and (b) are subordinated in right of payment, to the extent and
in the manner provided in this Article 11, to the prior payment in full, in
cash, of all Obligations with respect to Senior Debt of such Guarantor (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the holders of
Senior Debt of such Guarantor.
SECTION 11.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of any Guarantor in a
liquidation or dissolution of such Guarantor or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to such Guarantor or its
property, in an assignment for the benefit of creditors or any marshaling of
such Guarantor's assets and liabilities:
(1) holders of Senior Debt of such Guarantor shall be entitled
to receive payment in full in cash of all Obligations due in respect of
such Senior Debt of such Guarantor (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Senior Debt of such Guarantor, whether or not allowed as a
claim in such proceeding) before the Holders shall be entitled to
receive any payment or distribution from the Guarantor with respect to
such Guarantor's Subsidiary Guarantee; and
(2) until all Obligations with respect to Senior Debt of such
Guarantor (as provided in subsection (1) above) are paid in full in
cash, any payment or distribution to which the Trustee or any Holder
would be entitled but for this Article shall be made to holders of
Senior Debt of such Guarantor, as their interests may appear.
SECTION 11.04. DEFAULT ON SENIOR DEBT OF THE GUARANTOR.
No Guarantor shall make any payment or distribution upon or in respect
of the Notes or its Subsidiary Guarantee, including, without limitation, by way
of set-off or otherwise, or redeem (or make a deposit in redemption of), defease
or acquire any of the Notes, for cash, properties or securities if:
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(i) a Payment Default with respect to Senior Debt of such
Guarantor occurs and is continuing; or
(ii) a Non-Monetary Default on Senior Debt of such Guarantor
occurs and is continuing that then permits holders of the Senior Debt
of such Guarantor to accelerate its maturity and the Trustee receives a
Payment Blockage Notice from a Person who may give it pursuant to
Section 11.12 hereof. Any number of such Payment Blockage Notices may
be given, provided, however, that (i) not more than one Payment
Blockage Notice may be commenced during any period of 360 consecutive
days and (ii) any default or event of default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to
the Trustee (to the extent the holder of Designated Senior Debt, or
such trustee or agent, giving such Payment Blockage Notice had
knowledge of the same) shall not be the basis for a subsequent Payment
Blockage Notice pursuant to Section 11.12 herein, unless such default
has been cured or waived for a period of not less than 90 consecutive
days.
Each Guarantor may and shall resume payments on and distributions in
respect of its Subsidiary Guarantee, the Notes and all Obligations with respect
thereto, and may acquire such Notes or Obligations upon the earlier of:
(1) in the case of a payment default, the date upon which such
default is cured or waived, or
(2) in the case of a Non-Monetary Default, on the earlier of
the date on which such Non-Monetary Default is cured or waived or 179
days after the date on which the applicable Payment Blockage Notice is
received, if the maturity of such Senior Debt of such Guarantor has not
been accelerated,
if this Article 11 otherwise permits the payment, distribution or acquisition at
the time thereof.
SECTION 11.05. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default,
each Guarantor shall promptly notify the Representative of the holders of Senior
Debt of such Guarantor of the acceleration.
SECTION 11.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives from a Guarantor
any payment of any Obligations with respect to the Notes or the Subsidiary
Guarantees at a time when the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by Section 11.03 or 11.04 hereof, such
payment shall be held by the Trustee or such Holder, in trust for the benefit
of, and shall be paid forthwith over and delivered upon written request to, the
holders of Senior Debt of such Guarantor, as their interests may appear, or
their Representative under the indenture or other agreement (if any) pursuant to
which Senior Debt of such Guarantor may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with
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respect to Senior Debt of such Guarantor remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt of such Guarantor.
With respect to the holders of Senior Debt of any Guarantor, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Debt of such Guarantor shall
be read into this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Debt of such Guarantor, and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders or the Company or any other Person money
or assets to which any holders of Senior Debt of such Guarantor shall be
entitled by virtue of this Article 11, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
SECTION 11.07. NOTICE BY A GUARANTOR.
Each Guarantor shall promptly notify the Trustee and the Paying Agent
of any facts known to such Guarantor that would cause a payment of any
Obligations with respect to the Notes or its Subsidiary Guarantee to violate
this Article, but failure to give such notice shall not affect the subordination
of its Subsidiary Guarantee or of the Notes to the Senior Debt of such Guarantor
as provided in this Article 11.
SECTION 11.08. SUBROGATION.
With respect to any Guarantor, after all Obligations with respect to
Senior Debt of such Guarantor is paid in full, in cash, and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with such Guarantor's Subsidiary Guarantee) to the
rights of holders of Senior Debt of such Guarantor to receive distributions
applicable to Senior Debt of such Guarantor to the extent that distributions
otherwise payable to the Holders have been applied to the payment of Senior Debt
of such Guarantor. A distribution made under this Article to holders of Senior
Debt of such Guarantor that otherwise would have been made to Holders is not, as
between such Guarantor and Holders, a payment by such Guarantor on the Notes or
the Subsidiary Guarantee.
SECTION 11.09. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders of
Senior Debt of each Guarantor. Nothing in this Indenture shall:
(1) impair, as between such Guarantor and the Holders, the
obligation of such Guarantor, which is absolute and unconditional, to
pay principal of and interest and Liquidated Damages, if any, on the
Notes in accordance with the terms of its Subsidiary Guarantee;
73
(2) affect the relative rights of Holders and creditors of
such Guarantor other than their rights in relation to holders of Senior
Debt of such Guarantor; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Debt of such Guarantor set forth herein to
receive distributions and payments otherwise payable to Holders.
If any Guarantor fails because of this Article 11 to pay principal of,
premium or interest or Liquidated Damages, if any, on a Note on the due date,
the failure is still a Default or Event of Default.
SECTION 11.10. SUBORDINATION MAY NOT BE IMPAIRED BY ANY GUARANTOR.
With respect to any Guarantor, no right of any holder of Senior Debt of
such Guarantor to enforce the subordination of the Indebtedness evidenced by the
Subsidiary Guarantee shall be impaired by any act or failure to act by such
Guarantor or any Holder or by failure of such Guarantor or any Holder to comply
with this Indenture.
SECTION 11.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
With respect to any Guarantor, whenever a distribution is to be made or
a notice given to holders of Senior Debt of such Guarantor, the distribution may
be made and the notice given to their Representative.
Upon any payment or distribution of assets of any Guarantor referred to
in this Article 11, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt of such Guarantor and other
Indebtedness of such Guarantor, the amount or amounts thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 11.
SECTION 11.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least one Business Day prior to the date of such
payment a Payment Blockage Notice. Only the Representative of holders of
Designated Senior Debt may give a Payment Blockage Notice. Nothing in this
Article 11 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
74
With respect to any Guarantor, the Trustee in its individual or any
other capacity may hold Senior Debt of such Guarantor with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
SECTION 11.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 11, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding relative to any
Guarantor referred to in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the Representatives of Senior Debt of
such Guarantor are hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
SECTION 11.14. AMENDMENTS.
With respect to any Guarantor, the provisions of Section 11.02 through
11.14 hereof shall not be amended or modified without the written consent of the
holders of all Senior Debt of such Guarantor.
SECTION 11.15. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and, by its acceptance hereof, the Trustee and each
Holder hereby confirm that it is its intention that the Subsidiary Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Subsidiary Guarantee. To effectuate the foregoing intention,
each such person hereby irrevocably agrees that the obligation of such Guarantor
under its Subsidiary Guarantee under this Article 11 shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all other
(contingent or other) liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 11, result
in the obligations of such Guarantor in respect of such maximum amount not
constituting a fraudulent transfer or conveyance under said laws. The Trustee
and each Holder by accepting the benefits hereof, confirms its intention that,
in the event of a bankruptcy, reorganization or other similar proceeding of the
Company or any Guarantor in which concurrent claims are made upon such Guarantor
hereunder, to the extent such claims will not be fully satisfied, each such
claimant with a valid claim against the Company shall be entitled to a ratable
share of all payments by such Guarantor in respect of such concurrent claims.
For all purposes of this Section 11.15, Senior Debt shall be deemed to have been
incurred prior to the incurrence of the obligations in respect of the Subsidiary
Guarantees.
75
SECTION 11.16. RESTRICTED SUBSIDIARIES MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
No Guarantor shall consolidate with or merge with or into (whether or
not such Guarantor is the surviving Person), another Person whether or not it is
affiliated with such Guarantor unless (i) subject to the provisions of Section
11.17 hereof, the Person formed by or surviving any such consolidation or merger
(if other than such Guarantor) assumes all the obligations of such Guarantor
pursuant to a supplemental indenture in form reasonably satisfactory to the
Trustee, under its Subsidiary Guarantee, the Notes and this Indenture, (ii)
immediately after giving effect to such transaction, no Default or Event of
Default exists, and (iii) such Guarantor, or any Person formed by or surviving
any such consolidation or merger, will be permitted to incur, immediately after
giving effect to such transaction, at least $1.00 of additional Indebtedness
pursuant to the first paragraph of Section 4.09 hereof. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee in
this Indenture and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor corporation shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor.
SECTION 11.17. RELEASES FOLLOWING SALE OF ASSETS OR DESIGNATION AS UNRESTRICTED
SUBSIDIARY.
In the event of (a) a sale or other disposition of all or substantially
all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or (b) a sale or other disposition of all of the capital stock of any
Guarantor, or (c) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary in accordance with the terms of Section 4.17 hereof, then such
Guarantor (in the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of such Guarantor, or in
the event of the designation of such Guarantor as an Unrestricted Subsidiary) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) shall
be released and relieved of its obligations under its Subsidiary Guarantee;
provided that the Net Proceeds of such sale or other disposition are applied in
accordance with Section 4.10 hereof.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties shall control.
SECTION 12.02. NOTICES.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or
76
certified, return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company or any Guarantor:
Iron Mountain Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee Administration
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, or by overnight air courier guaranteeing next day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA ss. 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
77
If the Company or any Guarantor mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Restricted Subsidiaries, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants provided for in this
Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
78
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, the
Subsidiary Guarantees, this Indenture, the Registration Rights Agreement or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note and the related Subsidiary
Guarantees waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and the Subsidiary
Guarantees.
SECTION 12.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and
the Notes and the Subsidiary Guarantees, as the case may be, shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture, in the Notes or in the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
79
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
80
SIGNATURES
Dated as of October 24, 1997 IRON MOUNTAIN INCORPORATED
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman and CEO
Dated as of October 24, 1997 Iron Mountain Records Management,
Inc., Metro Business Archives, Inc.,
Criterion Atlantic Property, Inc.,
Criterion Property, Inc., Hollywood
Property, Inc., IM San Diego, Inc.,
Iron Mountain Consulting Services,
Inc., Iron Mountain Data Protection
Services, Inc., Iron Mountain Records
Management of Maryland, Inc., Iron
Mountain Records Management of Ohio,
Inc., Iron Mountain Wilmington, Inc.,
Iron Mountain Records Management of
Missouri LLC, Iron Mountain Records
Management of Boston, Inc., Iron
Mountain Records Management of
Minnesota, Inc., Iron Mountain Records
Management of Michigan, Inc., Iron
Mountain Records Management of
Wisconsin, Inc., Iron Mountain Records
Management of San Antonio, Inc., Iron
Mountain Records Management of San
▇▇▇▇▇▇▇-▇▇, Inc., Iron Mountain
Records Management of the Northwest,
Inc., Iron Mountain/Critical Files,
Inc., Iron Mountain/Safesite, Inc.,
IM-AEI Acquisition Corp., Archives
Express, Incorporated, IM Billerica,
Inc., IM ▇▇▇▇▇▇▇, Inc., Iron Mountain
Records Management of Florida, Inc.,
Data Securities International, Inc.,
IM-3 Acquisition Corp., and Allegiance
Business Archives, Ltd.
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman and CEO
Dated as of October 24, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Trustee
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman and CEO
81
EXHIBIT A
(Face of Note)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITARY") TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRE
SENTATIVE OF DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DEPOSITARY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.1
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION.
EACH HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (5) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH TRANSFER,
EXECUTES AND DELIVERS TO THE COMPANY AND THE TRUSTEE A LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND AN OPINION OF COUNSEL
IF THE COMPANY OR THE TRUSTEE SO REQUESTS OR (6) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (AND BASED
ON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), SUBJECT IN EACH OF THE
FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT IT WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
--------
1 This paragraph should be included only if the Note is issued in global
form.
A - 1
8 3/4% Senior Subordinated Notes due 2009
No. $__________
IRON MOUNTAIN INCORPORATED
promises to pay to _______________________________________ or registered
assigns, the principal sum of _____________________________________ Dollars on
______, 2009.
Interest Payment Dates: March 31 and September 30.
Record Dates: March 15 and September 15.
CUSIP No. ▇▇▇▇▇▇▇▇▇
[Every Global Note authenticated and delivered hereunder will bear a legend in
substantially the following form:](2)
[This Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Note may not be transferred to, or registered or exchanged
for Notes registered in the name of, any Person other than the Depositary or a
nominee thereof, and no such transfer may be registered, except in the limited
circumstances described in the Indenture. Every Note authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, this Note
will be a Global Note subject to the foregoing, except in such limited
circumstances.]2
IRON MOUNTAIN INCORPORATED
By:____________________________________
Name:
Title:
By:____________________________________
[SEAL] Name:
Title:
Dated:
This is one of the Notes referred to in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee
By:_______________________________
Authorized Signatory
---------------
(2) This paragraph should be included only if the Note is issued in global
form.
A - 2
(Back of Note)
8 3/4% SENIOR SUBORDINATED NOTE
DUE 2009
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Interest. Iron Mountain Incorporated, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate and in the manner specified below.
The Company shall pay in cash interest on the principal amount of this
Note at the rate per annum of 8 3/4%. The Company will pay interest
semi-annually in arrears on March 31 and September 30 of each year, commencing
on March 31, 1998 or if any such day is not a Business Day (as defined in the
Indenture), on the next succeeding Business Day (each an "Interest Payment
Date"), to Holders of record on the immediately preceding March 15 and September
15.
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Notes. To the extent lawful, the Company shall pay
interest on overdue principal at the rate of 1% per annum in excess of the then
applicable interest rate on the Notes; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at the
same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay principal, premium, if
any, and interest by check payable in such money. It may mail an interest check
to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice to any Holder. The Company or any Restricted
Subsidiary may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of October 24, 1997 (the "Indenture") between the Company, the Restricted
Subsidiaries named therein and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) as in effect on
the date of the Indenture. The Notes are subject to all such terms, and Holders
of the Notes are referred to the Indenture and such act for a statement of such
terms. The terms of the Indenture shall govern any inconsistencies between the
Indenture and the
A - 3
Notes. The Notes are unsecured general obligations of the Company limited to
$250,000,000 in aggregate principal amount.
5. Optional Redemption. Prior to September 30, 2002, the Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the Make-Whole
Price, plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable redemption date. On and after September 30, 2002, the Notes
will be subject to redemption at any time at the option of the Company, in whole
or in part, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable redemption date, if redeemed during the twelve-month period
beginning on September 30 of the years indicated below:
Year Percentage
2002.................................. 104.375%
2003.................................. 102.916%
2004.................................. 101.458%
2005 and thereafter................... 100.000%
Notwithstanding the foregoing, at any time during the first 36 months
after the date of issuance of the Notes, the Company may redeem up to 35% of the
initial principal amount of the Notes originally issued with the net proceeds of
one or more Qualified Equity Offerings at a redemption price equal to 108.75% of
the principal amount of such Notes, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of redemption; provided, that at least
65% of the principal amount of Notes originally issued remains outstanding
immediately after the occurrence of any such redemption and that such redemption
occurs within 60 days following the closing of any such Qualified Equity
Offering.
6. Mandatory Redemption. Except as described in paragraph 7 below, the
Company shall not be required to make sinking fund or redemption payments with
respect to the Notes.
7. Redemption or Repurchase at Option of Holder. This Note is subject
to purchase at the option of the Holder upon the circumstances set forth in
Section 3.09 and 4.14 of the Indenture.
8. Notice of Redemption. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at its registered address. Notes may be redeemed in part
but only in whole multiples of $1,000, unless all of the Notes held by a Holder
are to be redeemed. On and after the redemption date, interest ceases to accrue
on Notes or portions of them called for redemption.
9. Subordination. The Notes (a) rank pari passu with the 1996 Notes (as
defined in the Indenture) and (b) are subordinated to Senior Debt (as defined in
the Indenture)
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(whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed) and all Obligations (as defined in the
Indenture) with respect thereto. To the extent provided in the Indenture, Senior
Debt must be paid in full in cash before the Notes may be paid. The Company
agrees, and each Holder by accepting a Note agrees, to the subordination and
authorizes the Trustee to give it effect.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption. Also, it need not exchange or register the transfer of
any Notes for a period of 15 days before the mailing of a notice of redemption
of Notes, or during the period between a record date and the corresponding
Interest Payment Date.
11. Persons Deemed Owners. Prior to due presentment to the Trustee for
registration of the transfer of this Note, the Trustee, any Agent, the Company
and the Guarantors may deem and treat the Person in whose name this Note is
registered as its absolute owner for the purpose of receiving payment of
principal of, premium, if any, and interest on this Note and for all other
purposes whatsoever, whether or not this Note is overdue, and none of the
Trustee, any Agent, the Company or any Guarantor shall be affected by notice to
the contrary. The registered holder of a Note shall be treated as its owner for
all purposes.
12. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes), and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes). Without
the consent of any Holder, the Indenture or the Notes may be amended to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for assumption of the
Company's or any Restricted Subsidiary's obligations to Holders in the case of a
merger or consolidation or to make any change that would provide any additional
rights or benefits to the Holders or that does not adversely affect the rights
of any Holder under the Indenture or to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
13. Defaults and Remedies. Events of Default include: default for 30
days in the payment when due of interest or Liquidated Damages (as defined in
the Indenture) on the Notes (whether or not prohibited by the subordination
provisions of the Indenture); default in payment when due of principal of or
premium, if any, on the Notes (whether or not prohibited by the subordination
provisions of the Indenture); failure by the Company to comply with Section 4.14
of the Indenture; failure by the Company or the Restricted Subsidiaries for 60
days after notice
A - 5
from the Trustee or the Holders of not less than 25% of the aggregate principal
amount of the Notes outstanding to comply with any of its other agreements in
the Indenture or the Notes; default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or Guarantee now exists, or
is created after the date of the Indenture, if (a) such default results in the
acceleration of such Indebtedness prior to its express maturity or shall
constitute a default in the payment of such Indebtedness at final maturity of
such Indebtedness and (b) the principal amount of such Indebtedness that has
been accelerated or not paid at maturity, together with the principal amount of
any other Indebtedness that has been accelerated or not paid at maturity,
exceeds $5.0 million; failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which judgments remain
unpaid, undischarged or unstayed for a period of 60 days; except as permitted by
the Indenture, any Subsidiary Guarantee issued by a Restricted Subsidiary shall
be held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Restricted Subsidiary, or
any Person acting on behalf of any Restricted Subsidiary, shall deny or
disaffirm its obligations under its Subsidiary Guarantees; and certain events of
bankruptcy or insolvency with respect to the Company or any of its Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately, except that in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, relating to
the Company or any Significant Subsidiary, all outstanding Notes will become due
and payable without further action or notice; provided, however, that if any
Obligation with respect to Senior Bank Debt is outstanding pursuant to the
Credit Agreement upon a declaration of acceleration of the Notes, the principal,
premium, if any, and interest on the Notes will not be payable until the earlier
of (1) the day which is five Business Days after written notice of acceleration
is received by the Company and the Credit Agent, and (2) the date of
acceleration of the Indebtedness under the Credit Agreement. Holders of the
Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal, interest or Liquidated Damages) if it
determines that withholding notice is in their interest. The Company must
furnish an annual compliance certificate to the Trustee.
14. Subsidiary Guarantees. Payment of principal of, premium, if any,
and interest (including interest on overdue principal, premium, if any, and
interest, if lawful) on the Notes is guaranteed on an unsecured, senior
subordinated basis by the Guarantors pursuant to Article 11 of the Indenture.
15. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company, any Restricted Subsidiary or their
respective Affiliates, and may otherwise deal with the Company, any Restricted
Subsidiary or their respective Affiliates, as if it were not Trustee.
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16. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder, as such, of the Company or any
Guarantor shall have any liability for any obligations of the Company or any
Guarantor under the Notes, the Subsidiary Guarantees, the Indenture or the
Registration Rights Agreement or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a Note
and the related Subsidiary Guarantees, if any, waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
17. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.(3)
20. Holders' Compliance with Registration Rights Agreement. Each Holder
of a Note, by his acceptance thereof, acknowledges and agrees to the provisions
of the Registration Rights Agreement, dated as of October 21, 1997, among the
Company and the parties named on the signature page thereof (the "Registration
Rights Agreement"), including but not limited to the obligations of the Holders
with respect to a registration and the indemnification of the Company and the
Purchasers (as defined therein) to the extent provided therein.
21. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement. Request
may be made to:
Iron Mountain Incorporated
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
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(3) This paragraph should be included only if the Note is issued in
global form.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:____________________ Your Signature:________________________________
(Sign exactly as your name appears on the Note)
Signature Guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased:
$_____________
Date:____________________ Your Signature:________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:_________________________
Signature Guarantee:
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SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(4)
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Principal
Amount of Amount of Amount of this
decrease in increase in Global Note Signature of
Principal Principal following such authorized
Date of Amount of this Amount of this decrease (or signatory of
Exchange Global Note Global Note increase) Trustee
-------- ----------- ----------- --------- -----------
-----------------
(4) This should be included only if the Note is issued in global form.
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EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY FUTURE GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, between __________________ (the "Guarantor"), a subsidiary of
Iron Mountain Incorporated (or its successor), a Delaware corporation (the
"Company"), and The Bank of New York, a New York banking corporation, as trustee
under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of ________, 1997, providing
for the issuance of an aggregate principal amount of $250,000,000 of 8 3/4%
Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, Section 4.13 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the Guarantor
shall unconditionally guarantee all of the Company's obligations under the Notes
pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein;
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees that its
obligations to the Holder and the Trustee pursuant to this Subsidiary Guarantee
shall be as expressly set forth in Article 11 of the Indenture and in such other
provisions of the Indenture as are applicable to the Guarantors, and reference
is made to the Indenture for the precise terms of this Supplemental Indenture.
The terms of Article 11 of the Indenture and such other provisions of the
Indenture as are applicable to the Guarantors are incorporated herein by
reference.
3. EXECUTION AND DELIVER OF SUBSIDIARY GUARANTEES
(a) To evidence its Subsidiary Guarantee set forth in this
Supplemental Indenture, the Guarantor hereby agrees that a notation of
such Subsidiary Guarantee substantially in the form of Exhibit C to the
Indenture shall be endorsed by an Officer of such Guarantor on each
Note authenticated and delivered by the Trustee after the date hereof.
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(b) Notwithstanding the foregoing, the Guarantor hereby agrees
that its Subsidiary Guarantee set forth herein shall remain in full
force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
(c) If an Officer whose signature is on this Supplemental
Indenture or on the Subsidiary Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which a Subsidiary
Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due
delivery of the Subsidiary Guarantee set forth in this Supplemental
Indenture on behalf of the Guarantor.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder of the Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor under the
Notes, any Subsidiary Guarantee, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes.
5. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture and the
Subsidiary Guarantee.
6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
Dated: ____________, ____ [Guarantor]
By: ___________________________
Name:
Title:
Dated: ____________, ____ THE BANK OF NEW YORK,
as Trustee
By: ___________________________
Name:
Title:
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EXHIBIT C
FORM OF NOTATION ON SENIOR SUBORDINATED NOTE
RELATING TO SUBSIDIARY GUARANTEE
Each Guarantor set forth below and each Restricted Subsidiary of the
Company which in accordance with Section 4.13 of the Indenture is required to
guarantee the obligations of the Company under the Notes, upon execution of a
Supplemental Indenture, jointly and severally unconditionally guarantees (i) the
due and punctual payment of the principal of and interest and Liquidated
Damages, if any, on the Notes, whether at the maturity or interest payment or
mandatory redemption date, by acceleration, call for redemption or otherwise,
and of interest on the overdue principal of and interest, if any, on the Notes
and all other obligations of the Company to the Holders or the Trustee under the
Indenture or the Notes and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holder and to the Trustee
pursuant to this Subsidiary Guarantee and the Indenture are as expressly set
forth in Article 11 of the Indenture and in such other provisions of the
Indenture as are applicable to Guarantors, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture and such other provisions of the Indenture as are
applicable to Guarantors are incorporated herein by reference. This Subsidiary
Guaranty is subject to release as described in Sections 4.13 and 11.17 of the
Indenture, and the obligations of each Guarantor under this Subsidiary Guaranty
and the Indenture are limited as provided in Section 11.15 of the Indenture.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and assigns
until full and final payment of all of the Company's obligations under the Notes
and the Indenture and shall inure to the benefit of the successors and assigns
of the Trustee and the Holders and, in the event of any transfer or assignment
of rights by any Holder or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. This is
a guarantee of payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
[RESTRICTED SUBSIDIARY]
By:___________________________________
Name:
Title:
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EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: [Series A] [Series B] 8 3/4% Senior Subordinated Notes due 2009 (the
"Notes") of Iron Mountain Incorporated.
This Certificate relates to $______ principal amount of Notes held in *
[ ] book-entry or * [ ] definitive form by _______________________ (the
"Transferor").
The Transferor, by written order, has requested the Trustee to exchange or
register the transfer of a Note or Notes. In connection with such request and in
respect of each such Note, the Transferor does hereby certify that Transferor is
familiar with the Indenture relating to the above captioned Notes and the
transfer of this Note does not require registration under the Securities Act of
1933, as amended (the "Securities Act") because such Note:
[ ] is being acquired for the Transferor's own account, without transfer;
[ ] is being transferred pursuant to an effective registration statement;
[ ] is being transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act), in reli ance on such Rule 144A;
[ ] is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;**
[ ] is being transferred pursuant to Rule 144 under the Securities Act;**
or
[ ] is being transferred pursuant to another exemption from the
registration requirements of the Securities Act (explain:
_______________________________________________________________________
______________________________________________________________________.)**
[INSERT NAME OF TRANSFEROR]
By:_______________________________
Date:_____________________
* Check applicable box.
** If this box is checked, this certificate must be accompanied by an
opinion of counsel to the effect that such transfer is in compliance
with the Securities Act.
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EXHIBIT E
FORM OF PURCHASER LETTER
[DATE]
THE BANK OF NEW YORK, as Trustee
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IRON MOUNTAIN INCORPORATED
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[NAME OF SELLER ]
Re: Iron Mountain Incorporated 8 3/4% Senior Subordinated Notes due 2009
We are delivering this letter in connection with our proposed purchase
of $_______ aggregate principal amount of 8 3/4 % Senior Subordinated Notes due
2009 (the "Notes") of Iron Mountain Incorporated (the "Company").
We hereby confirm that:
1. We have received all information relating to the Notes as
we deem necessary in order to make our investment decision.
2. We are an institutional "accredited investor" (as defined
in Rule 501 (a)(1), (2), (3) or (7) under the Securities Act of 1933,
as amended (the "Securities Act")) purchasing for our own account or
for the account of such an institutional "accredited investor," and we
are acquiring the Notes for investment purposes and not with a view to,
or for offer or sale in connection with, any distribution in violation
of the Securities Act or the laws of any state or other jurisdiction,
and we have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment.
3. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture relating to the Notes (the "Indenture") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Notes except in compliance with, such restrictions and conditions
of the Securities Act.
4. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be
offered or sold except as described below. We agree, on our own behalf
and on behalf of any account for which we are purchasing the Notes, and
each subsequent holder of the Notes by its acceptance thereof will
agree, not to offer, sell or otherwise transfer such Notes prior to the
date which is two years (or such shorter period as may be promulgated
by the Securities and Exchange Commission pursuant to Rule 144 under
the Securities Act) after the later of the date of original issue of
such Notes and the last date on which the Company or any affiliate of
the Company was the owner of such Notes (the "Resale Restriction
Termination Date"), except (1) to the Company, (2) pursuant to a
registration statement which has been declared effective under the
Securities Act, (3) to a person we reasonably believe is a "qualified
institutional buyer" as defined in Rule 144A in a transaction meeting
the requirements of Rule 144A, (4) pursuant to offers and sales to
non-U.S. persons that occur outside the United States in a transaction
meeting the requirements of Rule 904
E-1
of Regulation S under the Securities Act, (5) to an institutional
"accredited investor" (as defined above) that prior to such transfer,
executes and delivers to the Company and the Trustee (as defined in the
Indenture) a signed letter, substantially identical to this letter,
containing certain representations and agreements relating to the
transfer of the Notes (the form of which letter can be obtained from
the Trustee), and, if requested by the Company or the Trustee, an
opinion of counsel (6) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act if available, or (7)
pursuant to any other available exemption from the registration
requirements of the Securities Act (based upon an opinion of counsel
reasonably acceptable to the Company if the Company so requests),
subject in each of the foregoing cases, to any requirement of law that
the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and to
compliance with applicable securities laws of any state or other
jurisdiction. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date, and we further
agree to provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are restricted
as stated herein. We understand that any Notes acquired by us (other
than pursuant to Rule 144A) will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting
the substance of this paragraph.
5. We understand that, on any proposed offer, sale or other
transfer of any Notes prior to the Resale Restriction Termination Date,
we will be required to furnish to the Trustee and the Company such
certifications, legal opinions, and other information as either of them
may reasonably require to confirm that the proposed transaction
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend reflecting the substance
of this and the preceding paragraph.
We acknowledge that you, the Trustee and others are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. We agree to notify
you promptly in writing if any of our representations or warranties herein
ceases to be accurate and complete.
E-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
_____________________________________
(Name of Purchaser)
By:___________________________________
Name:
Title:
Address:
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