EXHIBIT 4.3
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MOBILE MINI INC.,
AS ISSUER,
AND
ANY GUARANTORS PARTY HERETO,
AS GUARANTORS
9 1/2% SENIOR NOTES DUE 2013
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INDENTURE
DATED AS OF JUNE 26, 2003
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▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
AS TRUSTEE
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
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310(a)(1)............................................................................ 7.10
(a)(2)............................................................................ 7.10
(a)(3)............................................................................ N.A.
(a)(4)............................................................................ N.A.
(a)(5)............................................................................ 7.10
(b)............................................................................... 7.3, 7.8,7.10
(c)............................................................................... N.A.
311(a)............................................................................... 7.11
(b)............................................................................... 7.11
(c)............................................................................... N.A.
312(a)............................................................................... 2.5
(b)............................................................................... 12.3
(c)............................................................................... 12.3
313(a)............................................................................... 7.6
(b)(1)............................................................................ 7.6
(b)(2)............................................................................ 7.6
(c)............................................................................... 7.6,12.2
(d)............................................................................... 7.6
314(a)............................................................................... 4.3,4.4,12.5
(c)(1)............................................................................ 12.4
(c)(2)............................................................................ 12.4
(c)(3)............................................................................ 12.4
(d)............................................................................... 12.4
(e)............................................................................... 12.5
(f)............................................................................... N.A.
315(a)............................................................................... 7.1(b)
(b)............................................................................... 7.5,12.2
(c)............................................................................... 7.1(a)
(d)............................................................................... 7.1(c)
(e)............................................................................... 6.11
316(a)(last sentence)................................................................ 2.9
(a)(1)(A)......................................................................... 6.5
(a)(1)(B)......................................................................... 6.4
(a)(2)............................................................................ N.A.
(b)............................................................................... 6.7
(c)............................................................................... N.A.
317(a)(1)............................................................................ 6.8
(a)(2)............................................................................ 6.9
(b)............................................................................... 2.4
318(a)............................................................................... 12.1
(b)............................................................................... N.A.
(c)............................................................................... 12.1
N.A. MEANS NOT APPLICABLE
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* This Cross-Reference Table shall not, for any purpose, be deemed a part of
this Indenture.
TABLE OF CONTENTS
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ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.................................................................................... 1
Section 1.2. Other Definitions.............................................................................. 20
Section 1.3. Incorporation by Reference of Trust Indenture Act.............................................. 21
Section 1.4. Rules of Construction.......................................................................... 22
Section 1.5. Acts of Holders................................................................................ 22
ARTICLE II.
THE NOTES
Section 2.1. Form and Dating................................................................................ 23
Section 2.2. Execution and Authentication................................................................... 24
Section 2.3. Registrar and Paying Agent..................................................................... 24
Section 2.4. Paying Agents to Hold Money in Trust........................................................... 25
Section 2.5. Holder Lists................................................................................... 25
Section 2.6. Transfer and Exchange.......................................................................... 25
Section 2.7. Replacement Notes.............................................................................. 32
Section 2.8. Outstanding Notes.............................................................................. 32
Section 2.9. Treasury Notes................................................................................. 33
Section 2.10. Temporary Notes................................................................................ 33
Section 2.11. Cancellation................................................................................... 33
Section 2.12. Defaulted Interest............................................................................. 33
Section 2.13. Persons Deemed Owners.......................................................................... 33
Section 2.14. CUSIP Numbers.................................................................................. 34
Section 2.15. Designation.................................................................................... 34
ARTICLE III.
REDEMPTION AND REPURCHASE
Section 3.1. Notices to Trustee............................................................................. 34
Section 3.2. Selection of Notes............................................................................. 34
Section 3.3. Notice of Optional or Special Redemption....................................................... 35
Section 3.4. Effect of Notice of Redemption................................................................. 36
Section 3.5. Deposit of Redemption Price or Purchase Price.................................................. 36
Section 3.6. Notes Redeemed or Repurchased in Part.......................................................... 36
Section 3.7. Optional Redemption............................................................................ 36
Section 3.8. Special Redemption............................................................................. 37
Section 3.9. Repurchase upon Change of Control Offer........................................................ 37
Section 3.10. Repurchase upon Application of Net Proceeds.................................................... 39
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ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.............................................................. 40
Section 4.2. Maintenance of Office or Agency................................................................ 41
Section 4.3. Reports........................................................................................ 41
Section 4.4. Compliance Certificate......................................................................... 42
Section 4.5. Taxes.......................................................................................... 42
Section 4.6. Stay, Extension and Usury Laws................................................................. 42
Section 4.7. Limitation on Restricted Payments.............................................................. 42
Section 4.8. Limitation of Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries........ 44
Section 4.9. Limitation on Incurrence of Additional Indebtedness............................................ 46
Section 4.10. Limitation on Asset Sales...................................................................... 46
Section 4.11. Limitations on Transactions with Affiliates.................................................... 48
Section 4.12. Limitation on Liens............................................................................ 49
Section 4.13. Continued Existence............................................................................ 50
Section 4.14. Insurance Matters.............................................................................. 50
Section 4.15. Offer to Repurchase upon Change of Control..................................................... 50
Section 4.16. Additional Subsidiary Guarantees............................................................... 51
Section 4.17. Payments for Consent........................................................................... 51
Section 4.18. Limitation on Preferred Stock of Restricted Subsidiaries....................................... 51
Section 4.19. Conduct of Business............................................................................ 51
ARTICLE V.
SUCCESSORS
Section 5.1. Merger, Consolidation and Sale of Assets....................................................... 51
Section 5.2. Successor Corporation Substituted.............................................................. 53
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.............................................................................. 53
Section 6.2. Acceleration................................................................................... 55
Section 6.3. Other Remedies................................................................................. 55
Section 6.4. Waiver of Past Defaults........................................................................ 56
Section 6.5. Control by Majority............................................................................ 56
Section 6.6. Limitation on Suits............................................................................ 56
Section 6.7. Rights of Holders of Notes to Receive Payment.................................................. 56
Section 6.8. Collection Suit by Trustee..................................................................... 56
Section 6.9. Trustee May File Proofs of Claim............................................................... 57
Section 6.10. Priorities..................................................................................... 57
Section 6.11. Undertaking for Costs.......................................................................... 58
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ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.............................................................................. 58
Section 7.2. Rights of Trustee.............................................................................. 59
Section 7.3. Individual Rights of Trustee................................................................... 59
Section 7.4. Trustee's Disclaimer........................................................................... 60
Section 7.5. Notice of Defaults............................................................................. 60
Section 7.6. Reports by Trustee to Holders of the Notes..................................................... 60
Section 7.7. Compensation, Reimbursement and Indemnity...................................................... 60
Section 7.8. Replacement of Trustee......................................................................... 61
Section 7.9. Successor Trustee by Merger, Etc............................................................... 62
Section 7.10. Eligibility; Disqualification.................................................................. 62
Section 7.11. Preferential Collection of Claims Against Company.............................................. 62
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance....................................... 62
Section 8.2. Legal Defeasance and Discharge................................................................. 62
Section 8.3. Covenant Defeasance............................................................................ 63
Section 8.4. Conditions to Legal or Covenant Defeasance..................................................... 63
Section 8.5. Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous
Provision..................................................................................... 65
Section 8.6. Repayment to Company........................................................................... 65
Section 8.7. Reinstatement.................................................................................. 66
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes............................................................ 66
Section 9.2. With Consent of Holders of Notes............................................................... 66
Section 9.3. Compliance with Trust Indenture Act............................................................ 68
Section 9.4. Revocation and Effect of Consents.............................................................. 68
Section 9.5. Notation on or Exchange of Notes............................................................... 68
Section 9.6. Trustee to Sign Amendment, Etc................................................................. 68
ARTICLE X.
GUARANTEE
Section 10.1. Unconditional Guarantee........................................................................ 68
Section 10.2. Severability................................................................................... 69
Section 10.3. Limitation of Guarantor's Liability............................................................ 69
Section 10.4. Release of Guarantor........................................................................... 69
Section 10.5. Contribution................................................................................... 70
Section 10.6. Waiver of Subrogation.......................................................................... 70
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Section 10.7. Execution of Guarantee......................................................................... 71
Section 10.8. Waiver of Stay, Extension or Usury Laws........................................................ 71
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge..................................................................... 72
Section 11.2. Application of Trust........................................................................... 72
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Trust Indenture Act Controls................................................................... 73
Section 12.2. Notices........................................................................................ 73
Section 12.3. Communication by Holders of Notes with Other Holders of Notes.................................. 74
Section 12.4. Certificate and Opinion as to Conditions Precedent............................................. 74
Section 12.5. Statements Required in Certificate or Opinion.................................................. 74
Section 12.6. Rules by Trustee and Agents.................................................................... 75
Section 12.7. No Personal Liability of Directors, Officers, Employees and Stockholders....................... 75
Section 12.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial................................ 75
Section 12.9. No Adverse Interpretation of Other Agreements.................................................. 75
Section 12.10. Successors..................................................................................... 76
Section 12.11. Severability................................................................................... 76
Section 12.12. Counterpart Originals.......................................................................... 76
Section 12.13. Table of Contents, Headings, Etc............................................................... 76
Section 12.14. Qualification of Indenture..................................................................... 76
Signatures .............................................................................................. S-1
EXHIBITS
Exhibit A Form of Series A Note
Exhibit B Form of Series B Note
Exhibit C Form of Guarantee
Exhibit D(1) Form of Regulation S Certificate
Exhibit D(2) Form of Certificate to Be Delivered upon Exchange or
Registration of Transfer of Notes
Exhibit E Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit F Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
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INDENTURE
INDENTURE dated as of June 26, 2003 among MOBILE MINI INC., a
Delaware corporation (the "Company"), the Guarantors (as defined herein), if
any, and ▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders (as defined below)
of the Company's 9 1/2% Senior Notes due 2013:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or into
the Company or any of its Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Additional Interest" means all additional interest then owing
pursuant to Section 4 of the Registration Rights Agreement or the comparable
section of any registration rights agreement entered into in connection with the
issuance of any Additional Notes.
"Additional Notes" means Notes issued pursuant to Article II
and in compliance with Section 4.9, in addition to and having substantially the
same terms as the $150.0 million aggregate principal amount of Series A Notes
issued on the Issue Date or as the Series B Notes issued in exchange therefor.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Acquisition" means (1) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (2) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
Person (other than a Restricted Subsidiary of the Company) which constitute all
or substantially all of the assets of such Person or comprises any division or
line of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of
the Company of: (1) any Capital Stock of any Restricted Subsidiary of the
Company; or (2) any other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;
provided, however, that asset sales or other dispositions shall not include: (a)
a transaction or series of related transactions for which the Company or its
Restricted Subsidiaries receive aggregate consideration of less than $1.0
million; (b) the sale, lease, conveyance, disposition
or other transfer of all or substantially all of the assets of the Company as
permitted under Section 5.1; (c) any Restricted Payment permitted by Section 4.7
or that constitutes a Permitted Investment; (d) the sale or discount, in each
case without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof; (e)
the sale of or other disposition of cash or Cash Equivalents; (f) any sale or
disposition deemed to occur in connection with creating or granting any Liens
pursuant to Section 4.12; (g) the lease, assignment or sublease of any real or
personal property in the ordinary course of business; (h) any sale of
Receivables pursuant to a Qualified Securitization Transaction; and (i)
disposals or replacements of obsolete or worn out equipment.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors (or similar governing body) of such Person or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Borrowing Base" means, as of any date, an amount equal to the
sum of:
(1) 85% of the aggregate book value of all accounts
receivable of the Company and its Restricted Subsidiaries (other than
any Special Purpose Vehicle) as of the end of the most recent fiscal
quarter preceding such date; and
(2) 80% of the aggregate cost basis of the portable
storage unit lease fleet (or any successor line item or items
reflecting such portable storage unit lease fleet) as indicated on its
consolidated balance sheet as owned by the Company and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter preceding
such date (plus 80% of the fair market value of any portable storage
units acquired since the end of such fiscal quarter),
all calculated on a consolidated basis and in accordance with GAAP.
"Business Day" means any day other than 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 not a Business Day, payment may be made on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any
and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and all
options, warrants or other rights to purchase or acquire any of the
foregoing; and
(2) with respect to any Person that is not a corporation,
any and all partnership, membership or other equity interests of such
Person, and all options, warrants or other rights to purchase or
acquire any of the foregoing.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for pur-
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poses of this definition, the amount of such obligations at any date shall be
the capitalized amount of such obligations at such date, determined in
accordance with GAAP.
"Cash Equivalents" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof;
(2) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either Standard &
Poor's Ratings Group ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's");
(3) commercial paper maturing no more than one year from
the date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by
any bank organized under the laws of the United States of America or
any state thereof or the District of Columbia or any U.S. branch of a
foreign bank having at the date of acquisition thereof combined capital
and surplus of not less than $250.0 million;
(5) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(1) above entered into with any bank meeting the qualifications
specified in clause (4) above; and
(6) investments in money market funds which invest
substantially all their assets in securities of the types described in
clauses (1) through (5) above.
"Change of Control" means the occurrence of one or more of the
following events:
(1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any Person or group
of related Persons for purposes of Section 13(d) of the Exchange Act (a
"Group"), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Indenture;
(2) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of
the Company (whether or not otherwise in compliance with the provisions
of this Indenture);
(3) any Person or Group (other than any entity formed for
the purpose of owning Capital Stock of the Company) shall become the
owner, directly or indirectly, beneficially or of record, of shares
representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company;
or
(4) the replacement of a majority of the Board of
Directors of the Company over a two-year period from the directors who
constituted the Board of Directors of the Company at the beginning of
such period, and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors of the Company
then still in office who either were members of such Board of
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Directors at the beginning of such period or whose election as a member
of such Board of Directors was previously so approved.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme,
Luxembourg.
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means Mobile Mini Inc., a Delaware corporation, or
any successor obligor under this Indenture and the Notes pursuant to Article V.
"Comparable Treasury Issue" means the United States treasury
security selected by an Independent Investment Bank as having a maturity
comparable to the remaining term of the notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such notes. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date:
(1) the average of the bid and ask prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third business day preceding such
Redemption Date, as set forth in the most recently published
statistical release designated "H.15(519)" (or any successor release)
published by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," or
(2) if such release (or any successor release) is not
published or does not contain such prices on such business day, the
average of the Reference Treasury Dealer Quotations for such Redemption
Date.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been
reduced thereby:
(a) all income taxes of such Person and its
Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or
taxes attributable to sales or dispositions outside the
ordinary course of business);
(b) Consolidated Interest Expense; and
(c) Consolidated Non-cash Charges less any
non-cash items increasing Consolidated Net Income for such
period, all as determined on a consolidated basis for such
Person and its Restricted Subsidiaries in accordance with
GAAP.
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Notwithstanding the foregoing, for purposes of calculating
Consolidated EBITDA for purposes of calculating the Consolidated Fixed Charge
Coverage Ratio, payments in connection with the Nuko Judgment, subject to the
limitations set forth in the definition thereof, shall be excluded.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available (the "Transaction
Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to:
(1) the incurrence or repayment of any Indebtedness of
such Person or any of its Restricted Subsidiaries (and the application
of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and
the application of the proceeds thereof), other than the incurrence or
repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities,
occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment, as the case may
be (and the application of the proceeds thereof), occurred on the first
day of the Four Quarter Period; and
(2) any asset sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Indebtedness
and also including any Consolidated EBITDA (including any pro forma
expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Exchange Act) attributable to the assets which
are the subject of the Asset Acquisition or asset sale or other
disposition during the Four Quarter Period) occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such
asset sale or other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness)
occurred on the first day of the Four Quarter Period. If such Person or
any of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly
incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio":
(1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to
be so determined thereafter shall be deemed to have accrued at a fixed
rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date; and
(2) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by agreements relating to Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of:
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(1) Consolidated Interest Expense; plus
(2) the product of (x) the amount of all dividend
payments on any series of Preferred Stock of such Person and, to the
extent permitted under this Indenture, its Restricted Subsidiaries
(other than dividends paid in Qualified Capital Stock) paid, accrued or
scheduled to be paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated federal, state and
local income tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication:
(1) the aggregate of the interest expense of such Person
and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without
limitation: (a) any amortization of debt discount and amortization or
write-off of deferred financing costs; (b) the net costs under Interest
Swap Obligations incurred in the fiscal quarter beginning after the
Issue Date; (c) all capitalized interest; and (d) the interest portion
of any deferred payment obligation; and
(2) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by
such Person and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded therefrom:
(1) after-tax gains from Asset Sales (without regard to
the $1.0 million limitation set forth in the definition thereof) or
abandonments or reserves relating thereto;
(2) after-tax items classified as extraordinary or
nonrecurring gains;
(3) the net income of any Person acquired in a "pooling
of interests" transaction accrued prior to the date it becomes a
Restricted Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Restricted Subsidiary of
the referent Person;
(4) the net income (but not loss) of any Restricted
Subsidiary of the referent Person to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of
that income is restricted by a contract, operation of law or otherwise;
(5) the net income of any Person, other than a Restricted
Subsidiary of the referent Person, except to the extent of cash
dividends or distributions paid to the referent Person or to a Wholly
Owned Restricted Subsidiary of the referent Person by such Person;
(6) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;
(7) income or loss attributable to discontinued
operations (including, without limitation, operations disposed of
during such period whether or not such operations were classified as
discontinued);
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(8) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets; and
(9) fees and expenses incurred in association with this
offering of the Notes and related refinancing transactions in an
aggregate amount not to exceed $7.9 million.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charges constituting an extraordinary item or loss or any such charge
which requires an accrual of or a reserve for cash charges for any future
period).
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.2 or such other address as to
which the Trustee may give notice to the Company.
"Credit Agreement" means the Amended and Restated Loan and
Security Agreement dated as of June 26, 2003, between the Company, the lenders
party thereto in their capacities as lenders thereunder and Fleet Capital
Corporation, as administrative agent (the "Agent"), Fleet Securities, Inc. as
joint lead arranger, Deutsche Bank Trust Company Americas, as co-documentation
agent and Deutsche Bank Securities, Inc., as joint lead arranger, together with
the related documents thereto (including, without limitation, any notes,
guarantee agreements and security documents), in each case as such agreements
may be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including one or more credit
agreements, loan agreements, indentures or similar agreements extending the
maturity of, refinancing, replacing, renewing or otherwise restructuring
(including increasing the amount of available credit thereunder or adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement or agreements or any
successor or replacement agreement or agreements and whether by the same or any
other agent, lender or group of lenders.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Depositary" means, with respect to the Notes issuable in
whole or in part in global form, the Person specified in Section 2.6(g) as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions hereof, and,
thereafter, "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means that portion of 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 at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the sole option
of the holder thereof (except, in each case, upon the occurrence of a Change of
Control) on or prior to the final maturity date of the Notes.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws of the United
States, any state thereof or any territory or possession of the United States.
-7-
"Equity Offering" means a public or private equity offering of
Qualified Capital Stock of the Company.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of
the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means the 9 1/2% Senior Notes due 2013 issued
in exchange for the Initial Notes, which Exchange Notes are registered under the
Securities Act and issued pursuant to the terms of a certain registration rights
agreement dated as of June 26, 2003 by and among the Company, the Guarantors and
the initial purchasers named therein.
"Exchange Offer" means the offer that shall be made by the
Company pursuant to the Registration Rights Agreement to exchange Series A Notes
for Series B Notes.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors of
the Company acting reasonably and in good faith and shall be evidenced by a
Board Resolution of the Board of Directors of the Company delivered to the
Trustee.
"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 may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Guarantee" means a guarantee of the Notes by a Guarantor.
"Guarantor" means each of the Company's Restricted
Subsidiaries that in the future executes a supplemental indenture in which such
Restricted Subsidiary agrees to be bound by the terms of this Indenture as a
Guarantor; provided that any Person constituting a Guarantor as described above
shall cease to constitute a Guarantor when its respective Guarantee is released
in accordance with the terms of this Indenture.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means with respect to any Person, without
duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as
the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention agreement
(but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90
days or more or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted);
-8-
(5) all Obligations for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit
transaction;
(6) guarantees and other contingent obligations in
respect of Indebtedness referred to in clauses (1) through (5) above
and clause (8) below;
(7) all Obligations of any other Person of the type
referred to in clauses (1) through (6) which are secured by any lien on
any property or asset of such Person, the amount of such Obligation
being deemed to be the lesser of the fair market value of such property
or asset or the amount of the Obligation so secured;
(8) all Obligations under currency agreements and
interest swap agreements of such Person; and
(9) all Disqualified Capital Stock issued by such Person
with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be 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 Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Independent Financial Advisor" means a firm: (1) which does
not, and whose directors, officers and employees or Affiliates do not, have a
direct or indirect financial interest in the Company; and (2) which, in the
judgment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Initial Notes" means the Series A Notes.
"Initial Purchasers" means Deutsche Bank Securities Inc., CIBC
World Markets Corp., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Fleet Securities, Inc.
"Interest Swap Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any other Person. "Investment" shall exclude extensions of trade
credit by the Company and its Restricted Subsidiaries on commercially reasonable
terms in accordance with normal trade practices of the Company or such
Restricted Subsidiary, as the case may be. If the Company or any Restricted
-9-
Subsidiary of the Company sells or otherwise disposes of any Common Stock of any
direct or indirect Restricted Subsidiary of the Company such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted
Subsidiary, the Company shall be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value of the Common
Stock of such Restricted Subsidiary not sold or disposed of.
"Issue Date" means June 26, 2003.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of:
(1) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions);
(2) taxes paid or payable after taking into account any
reduction in consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements;
(3) repayment of Indebtedness that is secured by the
property or assets that are the subject of such Asset Sale;
(4) amounts required to be paid to any Person owning a
beneficial interest in or having a Lien on the assets subject to the
Asset Sale; and
(5) appropriate amounts to be provided by the Company or
any Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as
the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Notes" means the Series A Notes and the Series B Notes, if
any, that are issued under this Indenture, as amended or supplemented from time
to time, including Additional Notes, if any, and any Exchange Notes, if any.
"Nuko" means Nuko Holdings I, LLC, a Delaware limited
liability company.
"Nuko Judgment" means a court judgment in favor of Nuko
equaling the lesser of (i) the actual amount of any final judgment rendered in
favor of Nuko and (ii) $7.5 million, plus interest, costs and attorneys' fees.
-10-
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, (a) with respect to any Person that is a
corporation, the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the Chief
Operating Officer, the Treasurer, the Controller, the Secretary or any
Vice-President of such Person and (b) with respect to any other Person, the
individuals selected by such Person to perform functions similar to those of the
officers listed in clause (a).
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the Chief
Executive Officer, the Chief Financial Officer, the Treasurer or the principal
accounting officer of the Company, that meets the requirements of Sections 12.4
and 12.5.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee that meets the requirements of Sections
12.4 and 12.5. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Pari Passu Debt" means any Indebtedness of the Company or any
Guarantor that ranks pari passu in right of payment with the Notes or such
Guarantee, as applicable.
"Permitted Business" means any business conducted by the
Company on the Issue Date, any reasonable extension thereof, and any additional
business reasonably related thereto which would not be material to the Company
and its Restricted Subsidiaries taken as a whole.
"Permitted Indebtedness" means, without duplication, each of
the following:
(1) Indebtedness under the Notes issued on the Issue Date
in an aggregate principal amount not to exceed $150.0 million;
(2) Indebtedness incurred pursuant to the Credit
Agreement in an aggregate principal amount at any time outstanding not
to exceed the greater of (A) $250.0 million less the amount of all
required permanent repayments (which are accompanied by a corresponding
permanent commitment reduction) thereunder with the Net Cash Proceeds
from Asset Sales and (B) $15.0 million plus the Borrowing Base;
(3) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions thereon;
(4) Interest Swap Obligations of the Company or any
Restricted Subsidiary of the Company covering Indebtedness of the
Company or any of its Restricted Subsidiaries; provided, however, that
such Interest Swap Obligations are entered into to protect the Company
and its Restricted Subsidiaries from fluctuations in interest rates on
its outstanding Indebtedness to the extent the notional principal
amount of such Interest Swap Obligation does not, at the time of the
incurrence thereof, exceed the principal amount of the Indebtedness to
which such Interest Swap Obligation relates;
(5) Indebtedness under Currency Agreements; provided that
in the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and
its Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
-11-
(6) Indebtedness of a Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the Company for
so long as such Indebtedness is held by the Company or a Restricted
Subsidiary of the Company or the holder of a Lien permitted under this
Indenture, in each case subject to no Lien held by a Person other than
the Company or a Restricted Subsidiary of the Company or the holder of
a Lien permitted under this Indenture; provided that if as of any date
any Person other than the Company or a Restricted Subsidiary of the
Company or the holder of a Lien permitted under this Indenture owns or
holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness under this clause (6) by the
issuer of such Indebtedness;
(7) Indebtedness of the Company to a Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Restricted Subsidiary of the Company or the holder of a Lien permitted
under this Indenture, in each case subject to no Lien other than a Lien
permitted under this Indenture; provided that (a) any Indebtedness of
the Company to any Restricted Subsidiary of the Company that is not a
Guarantor is unsecured and subordinated, pursuant to a written
agreement, to the Company's obligations under this Indenture and the
Notes and (b) if as of any date any Person other than a Restricted
Subsidiary of the Company or the holder of a Lien permitted under this
Indenture owns or holds any such Indebtedness or any Person holds a
Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness
under this clause (7) by the Company;
(8) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two business
days of incurrence;
(9) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of performance bonds, bankers' acceptances,
workers' compensation claims, surety or appeal bonds, payment
obligations in connection with self-insurance or similar obligations,
and bank overdrafts (and letters of credit in respect thereof) in the
ordinary course of business;
(10) Indebtedness represented by Capitalized Lease
Obligations and Purchase Money Indebtedness of the Company and its
Restricted Subsidiaries incurred in the ordinary course of business not
to exceed $10.0 million at any one time outstanding;
(11) Refinancing Indebtedness;
(12) Indebtedness represented by guarantees by the Company
or its Restricted Subsidiaries of Indebtedness otherwise permitted to
be incurred under this Indenture;
(13) Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments in connection with the
acquisition or disposition of assets;
(14) Indebtedness incurred pursuant to a Qualified
Securitization Transaction; provided, however, that after giving effect
to any such incurrence, the aggregate principal amount of all
Indebtedness under this clause (14) plus any Indebtedness incurred
pursuant to clause (2) and outstanding on the date of such incurrence
does not exceed the greater of (a) $250.0 million and (b) $15.0 million
plus the Borrowing Base;
-12-
(15) Acquired Indebtedness of the Company or any
Restricted Subsidiary, in an aggregate principal amount not to exceed
$5.0 million; and
(16) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to exceed
$15.0 million at any one time outstanding (which amount may, but need
not, be incurred in whole or in part under the Credit Agreement).
For purposes of determining compliance with Section 4.9, (1)
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (1) through (16)
above or is entitled to be incurred pursuant to the Consolidated Fixed Charge
Coverage Ratio provisions of Section 4.9, the Company shall, in its sole
discretion, classify (or later reclassify) such item of Indebtedness in any
manner that complies with this definition; provided that all Indebtedness
outstanding under the Credit Agreement up to the maximum amount permitted under
clause (2) of this definition above shall be deemed to have been incurred
pursuant to clause (2) of this definition; (2) the outstanding principal amount
of any particular Indebtedness shall be counted only once and any obligations
arising under any guarantee, lien, letter of credit or similar instrument
supporting such Indebtedness shall be disregarded; (3) the maximum amount of
Indebtedness that the Company or a Restricted Subsidiary may incur pursuant to
Section 4.9 shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness, due solely to the result of fluctuations in the exchange rates of
currencies; and (4) the accrual of interest, accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the form
of additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Capital Stock in the form of additional shares of the same class of
Disqualified Capital Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Capital Stock for purposes of
Section 4.9.
"Permitted Investments" means:
(1) Investments by the Company or any Restricted
Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a
Restricted Subsidiary of the Company;
(2) Investments in the Company by any Restricted
Subsidiary of the Company;
(3) investments in cash and Cash Equivalents;
(4) loans and advances to employees, directors and
officers of the Company and its Restricted Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of
$250,000 at any one time outstanding;
(5) Currency Agreements and Interest Swap Obligations
entered into in the ordinary course of the Company's or its Restricted
Subsidiaries' businesses and otherwise in compliance with this
Indenture;
(6) additional Investments not to exceed $10.0 million at
any one time outstanding;
(7) Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors
or customers or in good faith settlement of delinquent obligations of
such trade creditors or customers;
(8) Investments made by the Company or its Restricted
Subsidiaries as a result of consideration received in connection with
an Asset Sale made in compliance with Section 4.10;
-13-
(9) Investments represented by guarantees that are
otherwise permitted under this Indenture;
(10) Investments the payment for which is Qualified
Capital Stock of the Company;
(11) Investments in a Special Purpose Vehicle in
connection with a Qualified Securitization Transaction; provided,
however, that the only assets transferred to such Special Purpose
Vehicle consist of Receivables and related assets of such Special
Purpose Vehicle; and
(12) Investments in existence on the date of this
Indenture and an Investment in any Person to the extent such Investment
replaces or refinances an Investment in such Person existing on the
date of this Indenture in an amount not exceeding the amount of the
Investment being replaced or refinanced; provided, however, that the
new Investment is on terms and conditions no less favorable to the
Company and its Restricted Subsidiaries than the Investment being
renewed or replaced.
"Permitted Liens" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges
or claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, including
any Lien securing letters of credit issued in the ordinary course of
business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(4) judgment Liens not giving rise to an Event of Default
so long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(5) easements, rights-of-way, zoning restrictions and
other similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries;
(6) any interest or title of a lessor under any
Capitalized Lease Obligation; provided that such Liens do not extend to
any property or assets which is not leased property subject to such
Capitalized Lease Obligation other than proceeds thereof;
(7) Liens securing Purchase Money Indebtedness incurred
or in the ordinary course of business; provided, however, that (a) such
Purchase Money Indebtedness shall not exceed the purchase price or
other cost of such property or equipment and shall not be secured by
any property or equipment of the Company or any Restricted Subsidiary
of the Company other than the property and equipment so
-14-
acquired and (b) the Lien securing such Purchase Money Indebtedness
shall be created within 90 days of such acquisition;
(8) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in
respect of letters of credit or bankers' acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;
(9) Liens securing reimbursement obligations with respect
to commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(10) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off;
(11) Liens securing Interest Swap Obligations which
Interest Swap Obligations relate to Indebtedness that is otherwise
permitted under this Indenture;
(12) Liens securing Indebtedness under Currency
Agreements;
(13) Liens securing Acquired Indebtedness incurred in
accordance with Section 4.9; provided that:
(a) such Liens secured such Acquired
Indebtedness at the time of and prior to the incurrence of
such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and were not granted in connection
with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the
Company, and
(b) such Liens do not extend to or cover any
property or assets of the Company or of any of its Restricted
Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Company or a Restricted
Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness
prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company;
(14) Liens on assets of a Restricted Subsidiary of the
Company that is not a Guarantor to secure Indebtedness of such
Restricted Subsidiary that is otherwise permitted under this Indenture;
(15) leases, subleases, licenses and sublicenses granted
to others that do not materially interfere with the ordinary cause of
business of the Company and its Restricted Subsidiaries;
(16) banker's Liens, rights of setoff and similar Liens
with respect to cash and Cash Equivalents on deposit in one or more
bank accounts in the ordinary course of business;
(17) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(18) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payments of custom duties in
connection with the importation of goods;
-15-
(19) Liens securing Indebtedness permitted to be incurred
pursuant to clause (16) of the definition of "Permitted Indebtedness";
(20) Liens on Receivables to reflect sales of receivables
pursuant to a Qualified Securitization Transaction; and
(21) other Liens securing Indebtedness for borrowed money
with respect to property or assets with an aggregate fair market value
(valued at the time of creation thereof) of not more than $7.5 million
at any time in the aggregate.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental agency or
political subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and
Trading through Automatic Linkages Market, commonly referred to as the Portal
Market, operated by the National Association of Securities Dealers, Inc. or any
successor thereto.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Purchase Date" means, with respect to any Note to be
repurchased, the date fixed for such repurchase by or pursuant to this
Indenture.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in the normal course of
business for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or equipment.
"Purchase Price" means the amount payable for the repurchase
of any Note on a Purchase Date, exclusive of accrued and unpaid interest and
Additional Interest (if any) thereon to the Purchase Date, unless otherwise
specifically provided.
"QIB" means a qualified institutional buyer as defined in Rule
144A under the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Securitization Transaction" means any transaction
or series of transactions that may be entered into by the Company or any
Restricted Subsidiary in connection with or reasonably related to a transaction
or series of transactions in which the Company or any Restricted Subsidiary may
sell, convey or otherwise transfer to (1) a Special Purpose Vehicle or (2) any
other Person, or may grant a security interest in, any equipment and related
assets (including contract rights) or Receivables or interests therein secured
by goods or services financed thereby (whether such Receivables are then
existing or arising in the future) of the Company or any Restricted Subsidiary,
and any assets relating thereto including, without limitation, all security or
ownership interests in goods or services financed thereby, the proceeds of such
Receivables, and other assets which are customarily sold or in respect of which
security interests are customarily granted in connection with securitization
transactions involving such assets, as any agreement governing any such
transactions may be renewed, refinanced, amended, restated or modified from time
to time.
"Receivables" means any right of payment from or on behalf of
any obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Company or any
Restricted Subsidiary of goods or services, and monies due thereunder, security
or ownership interests in the goods and services financed thereby, records
relating thereto, and the right to payment of any
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interest or finance charges and other obligations with respect thereto, proceeds
from claims on insurance policies related thereto, any other proceeds related
thereto, and other related rights.
"Redemption Date" means, with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means the amount payable for the redemption
of any Note on a Redemption Date, exclusive of accrued and unpaid interest and
Additional Interest (if any) thereon to the Redemption Date, unless otherwise
specifically provided.
"Reference Treasury Dealer" means Deutsche Bank Securities
Inc. and its successors; provided, however, that if it shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such Redemption Date.
"Refinance" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.9 (other than pursuant to clauses (2), (4), (5), (6),
(7), (8), (9), (10), (12), (13), (14) or (16) of the definition of Permitted
Indebtedness), in each case that does not:
(1) result in an increase in the aggregate principal
amount of Indebtedness of such Person as of the date of such proposed
Refinancing above the sum of (i) the aggregate principal amount of such
Indebtedness, plus (ii) the accrued interest on and amount of any
premium required to be paid under the terms of the instrument governing
such Indebtedness, plus (iii) the amount of reasonable expenses
incurred by the Company in connection with such Refinancing; or
(2) create Indebtedness with: (a) a Weighted Average Life
to Maturity that is less than the Weighted Average Life to Maturity of
the Indebtedness being Refinanced; or (b) a final maturity earlier than
the final maturity of the Indebtedness being Refinanced;
provided that (x) if such Indebtedness being Refinanced is Indebtedness solely
of the Company (and is not otherwise guaranteed by a Restricted Subsidiary of
the Company), then such Refinancing Indebtedness shall be Indebtedness solely of
the Company and (y) if such Indebtedness being Refinanced is subordinate or
junior to the Notes or any Guarantee, then such Refinancing Indebtedness shall
be subordinate to the Notes or such Guarantee, as the case may be, at least to
the same extent and in the same manner as the Indebtedness being Refinanced.
"Registration Rights Agreement" means the registration rights
agreement dated as of the Issue Date among the Company and the Initial
Purchasers.
"Regulation S" means Regulation S as promulgated under the
Securities Act.
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"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee assigned by the Trustee to administer this
Indenture 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 Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such Property.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Notes" means the Company's 9 1/2% Senior Notes due
2013 issued under this Indenture and not registered under the Securities Act,
whether issued on the Issue Date or thereafter, including any Additional Notes,
if applicable.
"Series B Notes" means notes issued by the Company hereunder
containing terms identical to the Series A Notes (except that (i) interest and
Additional Interest (if any) thereon shall accrue from the last date on which
interest was paid on the Series A Notes or, if no such interest has been paid,
from the date of original issuance, (ii) the legend or legends relating to
transferability and other related matters set forth on the Series A Notes,
including the text referred to in footnote 2 of Exhibit A, shall be removed or
appropriately altered, and (iii) as otherwise set forth herein), to be offered
to Holders of Series A Notes in exchange for such Series A Notes pursuant to the
Exchange Offer or any exchange offer specified in any registration rights
agreement relating to Additional Notes or in a registered public offering of
Additional Notes.
"Significant Subsidiary", with respect to any Person, means
any Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act.
"Special Purpose Vehicle" means a bankruptcy-remote entity or
trust or other special purpose entity that is formed by the Company, any
Subsidiary of the Company or any other Person for the purpose of, and engages in
no material business other than in connection with a Qualified Securitization
Transaction or other similar transactions of Receivables or other similar or
related assets.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subordinated Indebtedness" means Indebtedness of the Company
or any Guarantor that is subordinated or junior in right of payment to the Notes
or the Guarantee of such Guarantor, as the case may be.
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"Subsidiary", with respect to any Person, means:
(1) any corporation of which the outstanding Capital
Stock having at least a majority of the votes entitled to be cast in
the election of directors under ordinary circumstances shall at the
time be owned, directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the
voting interest under ordinary circumstances is at the time, directly
or indirectly, owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA; provided that in the event the Trust Indenture Act of
1939 is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Transfer Restricted Security" means a Note that is a
restricted security as defined in Rule 144(a)(3) under the Securities Act.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the yield to maturity of the Comparable Treasury
Issue, compounded semi-annually, assuming a price for such Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"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.
"Unrestricted Subsidiary" of any Person means:
(1) any Subsidiary of such Person that at the time of
determination shall be or continue to be designated an Unrestricted
Subsidiary by the Board of Directors of such Person in the manner
provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary (including
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided that:
(1) the Company certifies to the Trustee that such
designation complies with Section 4.7; and
(2) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender has recourse to any of the assets of the Company or
any of its Restricted Subsidiaries.
For purposes of making the determination of whether any such
designation of a Subsidiary as an Unrestricted Subsidiary complies with Section
4.7, the portion of the fair market value of the net assets of such Subsidiary
of the Company at the time that such Subsidiary is designated as an Unrestricted
Subsidiary that is represented by the interest of the Company and its Restricted
Subsidiaries in such Subsidiary, in each case as
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determined in good faith by the Board of Directors of the Company, shall be
deemed to be an Investment. Such designation will be permitted only if such
Investment would be permitted at such time under Section 4.7.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if:
(1) immediately after giving effect to such designation,
the Company is able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.9(a);
and
(2) immediately before and immediately after giving
effect to such designation, no Default or Event of Default shall have
occurred and be continuing.
Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Securities" shall mean securities which are
(i) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a person controlled
or supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Securities or a specific payment of
interest on or principal of any such U.S. Government Securities held by such
custodian for the account of the holder of a depository receipt.
"U.S. Person" means any U.S. Person as defined in Regulation
S.
"Weighted Average Life to Maturity" means, when applied to
any Indebtedness at any date, the number of years obtained by dividing (a) the
then outstanding aggregate principal amount of such Indebtedness into (b) the
sum of the total of the products obtained by multiplying (i) 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 (ii) the number of years (calculated to the nearest one-twelfth) which will
elapse between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
Wholly Owned Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary of such Person.
"Wholly Owned Subsidiary" of any Person means any Subsidiary
of such Person of which all the outstanding voting securities (other than in the
case of a foreign Subsidiary, directors' qualifying shares or an immaterial
amount of shares required to be owned by other Persons pursuant to applicable
law) are owned by such Person or any Wholly Owned Subsidiary of such Person.
Section 1.2. Other Definitions.
Term Defined in Section
---- ------------------
"Acceleration Notice".............................. 6.2
"Act............................................... 1.5(a)
"Adjusted Net Assets".............................. 10.5
"Affiliate Transaction"............................ 4.11
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Term Defined in Section
---- ------------------
"Agent Members".................................... 2.6(b)
"Certificated Notes"............................... 2.1
"Change of Control Offer".......................... 4.15(a)
"Change of Control Offer Period"................... 3.9(b)
"Covenant Defeasance".............................. 8.3
"Event of Default"................................. 6.1
"Foreign Person"................................... 2.6(c)
"Funding Guarantor"................................ 10.5
"Global Notes"..................................... 2.1
"incur"............................................ 4.9(a)
"Institutional Accredited Investors"............... 2.1
"Legal Defeasance"................................. 8.2
"Net Proceeds Offer"............................... 4.10
"Net Proceeds Offer Payment Date".................. 4.10
"Net Proceeds Offer Trigger Date".................. 4.10
"Offshore Certificated Notes"...................... 2.1
"Paying Agent"..................................... 2.3
"Permanent Regulation S Global Note"............... 2.1
"Private Placement Legend"......................... 2.6(h)
"Reference Date"................................... 4.7
"Registrar"........................................ 2.3
"Regulation S Global Note"......................... 2.1
"Replacement Assets"............................... 4.10(3)(b)
"Restricted Payment"............................... 4.7(a)
"Rule 144A Global Note"............................ 2.1
"Special Redemption"............................... 3.8
"Surviving Entity"................................. 5.1
"Temporary Regulation S Global Note"............... 2.1
"U.S. Certificated Notes".......................... 2.1
Section 1.3. 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.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
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Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular; and
(e) references to sections of or rules under the
Securities Act, the Exchange Act and the TIA shall be deemed to include
substitute, replacement and successor sections or rules adopted by the
Commission from time to time unless otherwise specified.
Section 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing or bound by such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 7.1) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her the
execution thereof. Where such execution is by an officer of a corporation or a
member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority.
(c) The ownership of Notes shall be proved by the
register maintained by the Registrar.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
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ARTICLE II
THE NOTES
Section 2.1. Form and Dating.
The Series A Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage in addition to those set forth in Exhibit A. The Series B Notes shall be
substantially in the form of Exhibit B. The notation on each Note relating to
the Guarantees, if any, shall be substantially in the form set forth in Exhibit
C. Each Note shall be dated the date of its authentication. The Notes shall be
in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes and Guarantees
shall constitute, and are hereby expressly made, a part of this Indenture, and
the Company, the Guarantors, if any, and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of a single permanent global Note in registered
form, substantially in the form set forth in Exhibit A (the "Rule 144A Global
Note"), deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Rule 144A Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Note in registered form substantially in the form set forth in Exhibit A (the
"Temporary Regulation S Global Note"), deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. At any time following 40 days after the later
of the consummation of the offering of the Notes and the Issue Date, upon
receipt by the Trustee and the Company of a duly executed certificate
substantially in the form of Exhibit C(1), a single permanent Global Note in
registered form substantially in the form set forth in Exhibit A (the "Permanent
Regulation S Global Note," and together with the Temporary Regulation S Global
Note, the "Regulation S Global Note") duly executed by the Company and
authenticated by the Trustee as hereinafter provided shall be deposited with the
Trustee, as custodian for the Depositary. The aggregate principal amount of the
Regulation S Global Note may from time to time be increased or decreased by
adjustments made in the records of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
Notes offered and sold to institutional accredited investors
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
("Institutional Accredited Investors"), if any, shall be issued in the form of
permanent U.S. Certificated Notes in registered form in substantially the form
set forth in Exhibit A (the "U.S. Certificated Notes"). Notes issued pursuant to
Section 2.6 in exchange for interests in the Rule 144A Global Note or the
Regulation S Global Note shall be in the form of permanent Certificated Notes in
registered form substantially in the form set forth in Exhibit A (the "Offshore
Certificated Notes"), in the case of those issued in exchange for the Regulation
S Global Note, and U.S. Certificated Notes, in the case of those issued in
exchange for the Rule 144A Global Note.
The Offshore Certificated Notes and U.S. Certificated Notes
are sometimes collectively herein referred to as the "Certificated Notes." The
Rule 144A Global Note and the Regulation S Global Note are sometimes referred to
herein as the "Global Notes."
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Section 2.2. Execution and Authentication.
An Officer of the Company shall sign the Notes for the Company
by manual or facsimile signature and the Notes shall be attested to by another
Officer of the Company. The seal of the Company shall be reproduced on the Notes
and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid. Each Guarantor, if any, shall execute a Guarantee in the manner set forth
in Section 10.7.
A Note shall not be valid until authenticated by the signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee, upon a written order of the Company signed by two
Officers of the Company, together with the other documents required by Sections
12.4 and 12.5, shall authenticate (i) Series A Notes for original issue on the
Issue Date in the aggregate principal amount not to exceed $150.0 million and
(ii) subsequent to the Issue Date and subject to Section 4.9, Additional Notes.
The Trustee, upon written order of the Company signed by two Officers of the
Company, together with the other documents required by Sections 12.4 and 12.5,
shall authenticate Series B Notes; provided that such Series B Notes shall be
issuable only upon the valid surrender for cancellation of Series A Notes of a
like aggregate principal amount in accordance with the Exchange Offer or an
exchange offer specified in any registration rights agreement relating to
Additional Notes or in connection with one or more registered public offerings
of Additional Notes. Such written order of the Company shall specify the amount
of Notes to be authenticated and the date on which the original issue of Notes
is to be authenticated. Any Additional Notes shall be part of the same issue as
the Notes being issued on the Issue Date and will vote on all matters as one
class with the Notes being issued on the Issue Date, including, without
limitation, waivers, amendments, redemptions, Change of Control Offers and Net
Proceeds Offers.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. 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
an Affiliate of the Company.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and 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.
At the option of the Company, payment of interest and Additional Interest (if
any) may be made by check mailed to the Holders at their addresses set forth in
the register of Holders, provided that payment by wire transfer of immediately
available funds will be required with respect to principal, Redemption Price and
Purchase Price of, and interest and Additional Interest (if any) on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Trustee or the Paying Agent. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of
the name and address of any Paying Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar. The Depositary shall, by acceptance of a
Global Note, agree that transfers of beneficial interests in such Global Note
may be effected only through a book-entry system maintained by the Depositary
(or its agent), and that ownership of a beneficial interest in the Note shall be
required to be reflected in a book entry.
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The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
The Trustee is hereby authorized to enter into a letter of
representations with the Depositary in the form provided by the Company and to
act in accordance with such letter.
Section 2.4. Paying Agents to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, interest and Additional Interest (if
any) on the Notes, and will notify the Trustee of any default by the Company 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 Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5. Holder Lists.
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 all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least five 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 the
Holders of Notes, and the Company shall otherwise comply with TIA Section
312(a).
Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange Generally; Book Entry
Provisions. Upon surrender for registration of transfer of any Note to the
Registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.6, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency maintained by the Company
pursuant to Section 4.2. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive.
All Notes presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing. Except as otherwise provided in this Indenture, and in
addition to the requirements set forth in the legend referred to in Section
2.6(h)(i) below, in connection with any transfer of Transfer Restricted
Securities any request for transfer shall be accompanied by a certification to
the Trustee relating to the manner of such transfer substantially in the form of
Exhibit D(2).
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(b) Book-Entry Provisions for the Global Notes. The Rule
144A Global Note and Regulation S Global Note initially shall (i) be registered
in the name of the Depositary or the nominee of such Depositary, (ii) be
delivered to the Trustee as Note Custodian and (iii) bear legends as set forth
in Section 2.6(h).
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Rule
144A Global Note or Regulation S Global Note, as the case may be, held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Rule
144A Global Note or Regulation S Global Note, as the case may be, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Rule 144A Global Note or
Regulation S Global Note, as the case may be, for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Note.
Transfers of the Rule 144A Global Note and the Regulation S
Global Note shall be limited to transfers of such Rule 144A Global Note or
Regulation S Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Beneficial interests in the Rule 144A
Global Note and the Regulation S Global Note may be transferred in accordance
with the applicable rules and procedures of the Depositary and the provisions of
this Section 2.6. The registration of transfer and exchange of beneficial
interests in a Global Note, which does not involve the issuance of a
Certificated Note, shall be effected through the Depositary, in accordance with
this Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depositary therefor. The Trustee shall have no responsibility
or liability for any act or omission of the Depositary.
At any time at the request of the beneficial holder of an
interest in the Rule 144A Global Note or Permanent Regulation S Global Note to
obtain a Certificated Note, such beneficial holder shall be entitled to obtain a
Certificated Note upon written request to the Trustee and the Note Custodian in
accordance with the standing instructions and procedures existing between the
Note Custodian and Depositary for the issuance thereof. Upon receipt of any such
request, the Trustee, or the Note Custodian at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Custodian, the aggregate principal amount of
the Rule 144A Global Note or Permanent Regulation S Global Note, as appropriate,
to be reduced by the principal amount of the Certificated Note issued upon such
request to such beneficial holder and, following such reduction, the Company
will execute and the Trustee will authenticate and deliver to such beneficial
holder (or its nominee) a Certificated Note or Certificated Notes in the
appropriate aggregate principal amount in the name of such beneficial holder (or
its nominee) and bearing such restrictive legends as may be required by this
Indenture.
(c) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the registration
of any proposed transfer of a Transfer Restricted Security to any Institutional
Accredited Investor that is not a QIB (other than any Person that is not a U.S.
Person as defined under Regulation S, a "Foreign Person"):
(i) the Registrar shall register the transfer of any
Note, whether or not such Note bears the Private Placement Legend, if
(x) the proposed transferee has certified in writing to the Registrar
that the requested transfer is at least two years after the later of
(A) the Issue Date of the Notes and (B) the last date on which any
Notes were acquired from an Affiliate of the Company and has delivered
legal opinions and such other information as the Trustee and the
Company may reasonably require, or (y) the proposed transferee has
delivered to the Registrar (A) a certificate substantially in the form
of Exhibit E and (B) such certifications, legal opinions and other
information as the Trustee and the Company may reasonably request to
confirm that such transaction is in compliance with the Securities Act;
and
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(ii) if the proposed transferor is an Agent Member holding
a beneficial interest in the Global Note, upon receipt by the Registrar
of (x) the documents required by clause (i), and (y) instructions given
in accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Note in an amount equal
to the principal amount of the beneficial interest in the Global Note
to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Certificated Notes of like tenor
and amount.
(d) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a Transfer
Restricted Security to a QIB (other than Foreign Persons):
(i) if the Note to be transferred consists of
Certificated Notes or an interest in the Regulation S Global Note, the
Registrar shall register the transfer if such transfer is being made by
a proposed transferor who has checked the box provided for on a
certificate substantially in the form of Exhibit D(2) stating, or has
otherwise advised the Company and the Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who is a QIB within the meaning of Rule 144A and is aware
that the sale to it is being made in reliance on Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and
the Note to be transferred consists of Certificated Notes or an
interest in the Regulation S Global Note, upon receipt by the Registrar
of (x) the documents referred to in clause (i), and (y) instructions
given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the Rule 144A Global
Note in an amount equal to the principal amount of the Certificated
Notes or the interest in the Regulation S Global Note, as the case may
be, to be transferred, and the Trustee shall cancel the Certificated
Notes or decrease the amount of the Regulation S Global Note so
transferred.
(e) Transfers of Interests in the Temporary Regulation S
Global Note. The following provisions shall apply with respect to the
registration of any proposed transfer of interests in the Temporary Regulation S
Global Note:
(i) the Registrar shall register the transfer of an
interest in the Temporary Regulation S Global Certificate if (x) the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit F and the transferee shall have
delivered a certificate substantially in the form of Exhibit D(1)
stating, among other things, that the proposed transferee is a Foreign
Person or (y) the proposed transferee is a QIB and the proposed
transferor has checked the box provided for on a certificate
substantially in the form of Exhibit D(2) stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A; and
(ii) if the proposed transferee is an Agent Member, upon
receipt by the Registrar of (x) the documents referred to in clause
(i), and (y) instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
Rule 144A Global Note in an amount equal to the principal amount of the
Temporary Regulation S Global Note to be transferred, and the Trustee,
as Note Custodian, shall decrease the amount of the Temporary
Regulation S Global Note.
(f) Transfers to Foreign Persons. The following
provisions shall apply with respect to any transfer of a Transfer Restricted
Security to a Foreign Person:
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(i) the Registrar shall register any proposed transfer of
a Note to a Foreign Person upon receipt of a certificate substantially
in the form of Exhibit F from the proposed transferor and such
certifications, legal opinions and other information as the Trustee or
the Company may reasonably request; and
(ii) (a) if the proposed transferor is an Agent Member
holding a beneficial interest in the Rule 144A Global Note or the Note
to be transferred consists of Certificated Notes, upon receipt by the
Registrar of (x) the documents required by clause (i), and (y)
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Rule
144A Global Note in an amount equal to the principal amount of the
beneficial interest in the Rule 144A Global Note or cancel the
Certificated Notes, as the case may be, to be transferred, and (b) if
the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of
the Certificated Notes to be transferred, and the Trustee shall
decrease the amount of the Rule 144A Global Note.
(g) The Depositary. The Depositary shall be a clearing
agency registered under the Exchange Act. The Company initially appoints The
Depository Trust Company to act as Depositary with respect to the Global Notes.
Initially, the Rule 144A Global Note and the Regulation S Global Note shall be
issued to the Depositary, registered in the name of Cede & Co., as the nominee
of the Depositary, and deposited with the Note Custodian for Cede & Co.
Notes in Certificated form issued in exchange for all or a
part of a Global Note pursuant to this Section 2.6 shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such Certificated Notes in Certificated form to the persons in whose
names such Notes in Certificated form are so registered.
Certificated Notes shall be transferred to all beneficial
owners in exchange for their beneficial interests in the Rule 144A Global Note
or the Permanent Regulation S Global Note, as the case may be, if at any time:
(i) the Depositary for the Notes notifies the Company
that the Depositary is unwilling or unable to continue as Depositary
for the Rule 144A Global Note or the Permanent Regulation S Global
Note, as the case may be, and a successor Depositary is not appointed
by the Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Certificated
Notes under this Indenture,
and the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2, authenticate and deliver
Certificated Notes in an aggregate principal amount equal to the principal
amount of the Rule 144A Global Note or the Permanent Regulation S Global Note,
as the case may be, in exchange for such Global Notes.
(h) Legends.
(i) Except as permitted by the following paragraphs (ii)
and (iii), each Note certificate evidencing Global Notes and Certificated Notes
(and all Notes issued in exchange therefor or substitution thereof) shall (x) be
subject to the restrictions on transfer set forth in this Section 2.6 (including
those set forth in
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the legend below) unless such restrictions on transfer shall be waived by
written consent of the Company, and the holder of each Transfer Restricted
Security, by such Holder's acceptance thereof, agrees to be bound by all such
restrictions on transfer and (y) bear the legend set forth below (the "Private
Placement Legend"):
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO MOBILE MINI INC. OR ANY SUBSIDIARY THEREOF, (B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO MOBILE MINI INC. IF
MOBILE MINI INC. SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND MOBILE
MINI INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
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AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer 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:
(a) in the case of any Transfer Restricted Security that
is a Certificated Note, the Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Security for a Certificated Note
that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(b) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above, but shall
continue to be subject to the provisions of Section 2.6(b); provided,
however, that with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Note for a
Certificated Note that does not bear the legend set forth in (i) above,
which request is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Registrar that such request is being
made pursuant to Rule 144 (such certifications to be substantially in
the form of Exhibit D(2));
in each case, upon the delivery by the transferor of such opinions and other
information as the Trustee or the Company shall reasonably request.
(iii) Notwithstanding the foregoing, upon consummation of
the Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2, the Trustee shall
authenticate Series B Notes in exchange for Series A Notes accepted for exchange
in the Exchange Offer, which Series B Notes shall not bear the legend set forth
in (i) above, and the Registrar shall rescind any restriction on the transfer of
such Series A Notes, in each case unless the Company has notified the Registrar
in writing that the Holder of such Series A Notes is either (A) a broker-dealer,
(B) a Person participating in the distribution of the Series A Notes or (C) a
Person who is an affiliate (as defined in Rule 144A) of the Company.
(iv) Each Global Note, whether or not a Transfer
Restricted Security, shall also bear the following legend on the face thereof:
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 OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS
NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER
THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION
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OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(v) Any Global Note may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by the
Note Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Notes to be tradable on the PORTAL Market or
tradable on Euroclear or Clearstream or as may be required for the Notes to be
tradable on any other market developed for trading of securities pursuant to
Rule 144A or Regulation S under the Securities Act or required to comply with
any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
the Notes may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Notes are subject.
(i) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in Global Notes have been exchanged for
Certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for Certificated Notes, redeemed, repurchased or
cancelled, the principal amount of Notes represented by such Global Notes shall
be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or the Note Custodian, at the direction of the Trustee, to reflect
such reduction. In the event of any transfer of any beneficial interest between
the Rule 144A Global Note and the Regulation S Global Note in accordance with
the standing procedures and instructions between the Depositary and the Note
Custodian and the transfer restrictions set forth herein, the aggregate
principal amount of each of the Rule 144A Global Note and the Regulation S
Global Note shall be appropriately increased or decreased, as the case may be,
and an endorsement shall be made on each of the Rule 144A Global Note and the
Regulation S Global Note by the Trustee or the Note Custodian, at the direction
of the Trustee, to reflect such reduction or increase.
(j) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Certificated Notes
and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, 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 any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Section 2.6).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Certificated Notes and Global Notes issued upon
any registration of transfer or exchange of Certificated Notes or Global Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Certificated Notes or
Global Notes surrendered upon such registration of transfer or exchange.
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(v) The Company shall not be required:
(a) to issue, to register the transfer of or to exchange
Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section
3.2 and ending at the close of business on the day of selection; or
(b) to register the transfer of or to exchange any Note
so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(c) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment date.
(vi) Prior to due presentment of the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of all payments with respect to such Notes, and neither the
Trustee, any Agent nor the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and
Global Notes in accordance with the provisions of Section 2.2.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or either
the Company or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an authentication order in accordance with Section 2.2, shall
authenticate a replacement Note if the Trustee's requirements for replacement of
Notes are met. If required by the Trustee or the Company, an indemnity bond must
be supplied by the Holder that is sufficient in the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Trustee and the Company may charge the Holder for their expenses
in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.8. 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, those reductions in the interest in a Global Note effected
by the Trustee or the Note Custodian in accordance with the provisions hereof,
and those described in this Section as not outstanding. Except as set forth in
Section 2.9, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7, it shall cease
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser for value.
If the principal amount of any Note is considered paid under
Section 4.1, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a Redemption Date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
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Section 2.9. 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 or by any Affiliate thereof shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver of consent, only
Notes that a Responsible Officer of the Trustee knows are so owned shall be so
disregarded. The Company agrees to notify the Trustee of the existence of any
such treasury Notes or Notes owned by the Company or an Affiliate thereof.
Section 2.10. Temporary Notes.
Until Certificated Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an authentication order in
accordance with Section 2.2, shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of Certificated Notes, but may have such
variations as the Company considers appropriate for temporary Notes and as shall
be reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Certificated Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
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 and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy all
canceled Notes in accordance with the Trustee's usual procedures. The Trustee
shall maintain a record of the destruction of all canceled Notes. Certification
of the destruction of all canceled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that have been paid or that
have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
the Company 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 on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.1. The Company shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
Section 2.13. Persons Deemed Owners.
Prior to due presentment of a Note for registration of
transfer and subject to Section 2.12, the Company, the Trustee, any Paying
Agent, any co-registrar and any Registrar may deem and treat the person in whose
name any Note shall be registered upon the register of Notes kept by the
Registrar as the absolute owner of such Note (whether or not such Note shall be
overdue and notwithstanding any notation of the ownership or other writing
thereon made by anyone other than the Company, any co-registrar or any
Registrar) for the purpose
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of receiving all payments with respect to such Note and for all other purposes,
and none of the Company, the Trustee, any Paying Agent, any co-registrar or any
Registrar shall be affected by any notice to the contrary.
Section 2.14. CUSIP Numbers.
The Company in issuing the Notes may use a "CUSIP" number, and
if 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 shall
notify the Trustee of any change to the CUSIP numbers.
Section 2.15. Designation.
The Indebtedness evidenced by the Notes is hereby irrevocably
designated as "senior indebtedness" or such other term denoting seniority for
the purposes of any future Indebtedness of the Company which the Company makes
subordinate to any senior indebtedness or such other term denoting seniority.
ARTICLE III.
REDEMPTION AND REPURCHASE
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
provisions of Section 3.7 or 3.8, it shall furnish to the Trustee, at least 30
days but not more than 60 days before the Redemption Date, an Officers'
Certificate setting forth the Section of this Indenture pursuant to which the
redemption shall occur, the Redemption Date, the principal amount of Notes to be
redeemed and the Redemption Price.
If the Company is required to offer to repurchase Notes
pursuant to the provisions of Section 4.10 or 4.15, it shall notify the Trustee
in writing, at least 30 days but not more than 60 days before the Purchase Date,
of the Section of this Indenture pursuant to which the repurchase shall occur,
the Purchase Date, the principal amount of Notes required to be repurchased and
the Purchase Price and shall furnish to the Trustee an Officers' Certificate to
the effect that (a) the Company is required to make or has made a Net Proceeds
Offer or a Change of Control Offer, as the case may be, and (b) the conditions
set forth in Section 4.10 or 4.15, as the case may be, have been satisfied.
If the Registrar is not the Trustee, the Company shall,
concurrently with each notice of redemption or repurchase, cause the Registrar
to deliver to the Trustee a certificate (upon which the Trustee may rely)
setting forth the principal amounts of Notes held by each Holder.
Section 3.2. Selection of Notes.
Except as set forth below, if less than all of the Notes are
to be redeemed, the Trustee shall select the Notes or portions thereof to be
redeemed in compliance with the requirements of the national securities
exchange, if any, on which the Notes are listed or, if the Notes are not then
listed on a national securities exchange, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate. In the event of partial
redemption by lot, the particular Notes or portions thereof 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.
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If less than all of the Notes tendered are to be repurchased
pursuant to the provisions of Section 4.10, the Trustee shall select the Notes
or portions thereof to be repurchased in compliance with Section 4.10, as
applicable. In the event of partial repurchase by lot, the particular Notes or
portions thereof to be repurchased shall be selected at the close of business of
the last Business Day prior to the Purchase Date. If less than all of the Notes
tendered are to be redeemed pursuant to the provisions of Section 3.7 or 3.8,
the Trustee shall select the Notes only pro rata or on as nearly a pro rata
basis as is practicable (subject to DTC procedures) or by such other method as
may be required by law.
The Trustee shall promptly notify the Company in writing of
the Notes or portions thereof selected for redemption or repurchase and, in the
case of any Note selected for partial redemption or repurchase, the principal
amount thereof to be redeemed or repurchased. Notes and portions thereof
selected shall be in amounts of $1,000 or integral 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. No Notes of a principal amount of $1,000 or less shall be redeemed in
part.
Section 3.3. Notice of Optional or Special Redemption.
In the event Notes are to be redeemed pursuant to Section 3.7
or 3.8, at least 30 days but not more than 60 days before the Redemption Date,
the Company shall mail by first-class mail a notice of redemption to each Holder
at its registered address whose Notes are to be redeemed in whole or in part,
with a copy to the Trustee.
The notice shall identify the Notes or portions thereof to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(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 will be issued;
(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, Additional
Interest, if any, and, unless the Redemption Date is after a record
date and/or before the succeeding interest payment date, accrued
interest thereon to the Redemption Date;
(f) that, unless the Company defaults in making the
redemption payment, interest and any Additional Interest on Notes
called for redemption will cease to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such Notes is to
receive payment of the Redemption Price, any Additional Interest and,
unless the Redemption Date is after a record date and/or before the
succeeding interest payment date, accrued interest thereon to the
Redemption Date upon surrender to the Paying Agent of the Notes
redeemed;
(g) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portions thereof) to be
redeemed, as well as the aggregate principal amount of the Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption; and
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(h) the section of the Notes pursuant to which the Notes
called for redemption are being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided that the Company
shall deliver to the Trustee, at least 35 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 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes or portions thereof
called for redemption become due and payable on the Redemption Date at the
Redemption Price. Upon surrender to any Paying Agent, such Notes or portions
thereof shall be paid at the Redemption Price, plus Additional Interest, if any,
and accrued interest to the Redemption Date; provided, however, that
installments of interest which are due and payable on or prior to the Redemption
Date shall be payable to the Holders of such Notes, registered as such, at the
close of business on the relevant record date for the payment of such
installment of interest.
Section 3.5. Deposit of Redemption Price or Purchase Price.
On or before 10:00 A.M. New York City time on each Redemption
Date or Purchase Date, the Company shall irrevocably deposit with the Trustee or
with the Paying Agent money sufficient to pay the aggregate amount due on all
Notes to be redeemed or repurchased on that date, including without limitation
any accrued and unpaid interest and Additional Interest, if any, to the
Redemption Date or Purchase Date. The Company, the Trustee or the Paying Agent
shall promptly return to the Company any money not required for that purpose.
Unless the Company defaults in making such payment, interest
and Additional Interest, if any, on the Notes to be redeemed or repurchased will
cease to accrue on the applicable Redemption Date or Purchase Date, whether or
not such Notes are presented for payment. If any Note called for redemption
shall not be so paid upon surrender because of the failure of the Company to
comply with the preceding paragraph, interest will be paid on the unpaid
principal, from the applicable Redemption Date or Purchase Date until such
principal is paid, and on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 4.1.
Section 3.6. Notes Redeemed or Repurchased in Part.
Upon surrender of a Note that is redeemed or repurchased in
part, the Company shall issue and the Trustee shall authenticate for the Holder
at the expense of the Company a new Note equal in principal amount to portion of
the Note surrendered that is not to be redeemed or repurchased.
Section 3.7. Optional Redemption.
The Company may redeem the Notes at any time at its option, in
whole or in part, upon not less than 30 nor more than 60 days' notice. To redeem
the Notes prior to July 1, 2008, the Company must pay a redemption price equal
to the greater of:
(a) 100% of the principal amount of the Notes to be
redeemed; and
(b) the sum of the present values of (1) the redemption
price of the Notes at July 1, 2008 (as set forth below) and (2) the
remaining scheduled payments of interest from the Redemption Date to
July 1, 2008, but excluding accrued and unpaid interest, if any, to the
Redemption Date, discounted to
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the Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury Rate (determined
on the second business day immediately preceding the Redemption Date)
plus 50 basis points,
plus, in either case, accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date).
Any notice to Holders of such a redemption will include the
appropriate calculation of the redemption price, but need not include the
redemption price itself. The actual redemption price, calculated as described
above, will be set forth in an Officers' Certificate delivered to the Trustee no
later than two business days prior to the Redemption Date (unless clause (b) of
the definition of "Comparable Treasury Price" is applicable, in which case such
Officers' Certificate shall be delivered on the Redemption Date).
Beginning on July 1, 2008, the Company may redeem the Notes at
its option, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on July 1 of the year set forth below:
YEAR PERCENTAGE
---- ----------
2008.................................................................... 104.750%
2009.................................................................... 103.563%
2010.................................................................... 102.375%
2011.................................................................... 101.188%
2012 and thereafter..................................................... 100.000%
In addition, the Company must pay accrued and unpaid interest
on the Notes redeemed.
Section 3.8. Special Redemption.
At any time or from time to time, in the event the Company
completes one or more Equity Offerings on or before July 1, 2006, the Company
may, at its option, use the net cash proceeds from any such Equity Offerings to
redeem up to 35% of the principal amount of the Notes (a "Special Redemption")
at a Redemption Price of 109.500% of the principal amount thereof, together with
accrued and unpaid interest thereon, if any, to the Redemption Date, provided
that (1) at least 65% of the principal amount of the Notes issued hereunder
remains outstanding immediately after each such Special Redemption; and (2) such
Special Redemption shall occur not more than 90 days after the date of the
closing of the applicable Equity Offering. Any redemption pursuant to this
Section 3.8 shall be made pursuant to the provisions of Sections 3.1 through
3.6.
Section 3.9. Repurchase upon Change of Control Offer.
(a) In the event that, pursuant to Section 4.15, the
Company shall be required to commence a Change of Control Offer, it shall follow
the procedures specified in this Section 3.9.
(b) The Change of Control Offer shall remain open for a
period from the date of the mailing of the notice of the Change of Control Offer
described in paragraph (c) until a date determined by the Company which is at
least 30 but no more than 60 days from the date of mailing of such notice and no
longer, except to the extent that a longer period is required by applicable law
(the "Change of Control Offer Period"). On the Purchase Date, which shall be no
earlier than 30 days prior to the last day of the Change of Control Offer Period
and no later than such last day, the Company shall purchase the principal amount
of Notes properly tendered in
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response to the Change of Control Offer. Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.
(c) Within 30 days following any Change of Control, the
Company shall send, by first class mail, a notice to the Trustee and each of the
Holders. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Change of Control Offer. The
Change of Control Offer shall be made to all Holders. The notice, which shall
govern the terms of the Change of Control Offer, shall state:
(1) the transaction or transactions that constitute the
Change of Control, providing information, to the extent publicly
available, regarding the Person or Persons acquiring control, and
stating that the Change of Control Offer is being made pursuant to this
Section 3.9 and Section 4.15 and that, to the extent lawful, all Notes
properly tendered will be accepted for payment;
(2) the Purchase Price, the last day of the Change of
Control Offer Period, and the Purchase Date;
(3) that any Note not properly tendered or otherwise not
accepted for repurchase will continue to accrue interest and Additional
Interest, if any;
(4) that, unless the Company defaults in the payment of
the amount due on the Purchase Date, all Notes or portions thereof
accepted for repurchase pursuant to the Change of Control Offer shall
cease to accrue interest and Additional Interest, if any, after the
Purchase Date;
(5) that Holders electing to have any Notes purchased
pursuant to the Change of Control Offer will be required to tender the
Notes, with the form entitled Option of Holder to Elect Purchase on the
reverse of the Notes completed, or transfer by book-entry transfer, to
the Company, a Depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice not later than the third
Business Day preceding the Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Change of
Control Offer Period, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes
delivered for repurchase, and a statement that such Holder is
withdrawing his election to have the Notes redeemed in whole or in
part; and
(7) that Holders whose Notes are being repurchased only
in part will be issued new Notes equal in principal amount to the
portion of the Notes tendered (or transferred by book-entry transfer)
that is not to be repurchased, which portion must be equal to $1,000 in
principal amount or an integral multiple thereof.
(d) On or before 10:00 A.M. New York City time on the
Purchase Date, the Company shall to the extent lawful, (i) accept for payment
all Notes or portions thereof properly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent an amount equal to the
Purchase Price, together with accrued and unpaid interest and Additional
Interest, if any, thereon to the Purchase Date in respect of all Notes or
portions thereof so tendered and accepted for repurchase and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being repurchased by the Company. The Paying Agent shall
promptly (but in any case not later than five days after the Purchase Date) mail
to each Holder of Notes so repurchased the amount due in connection with such
Notes, and the Company shall promptly issue a new Note, and the Trustee, upon
written request from the Company in the form of an Officers' Certificate shall
authenticate and mail or deliver (or cause to trans-
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fer by book entry) to each relevant Holder a new Note, in a principal amount
equal to any unpurchased portion of the Notes surrendered to the Holder thereof;
provided that each such new Note shall be in a principal amount of $l,000 or an
integral multiple thereof. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Purchase
Date.
(e) If the Purchase Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest and Additional Interest, if any, in each case to the 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 shall be
payable to Holders pursuant to the Change of Control Offer.
Section 3.10. Repurchase upon Application of Net Proceeds.
(a) In the event that, pursuant to Section 4.10, the
Company shall be required to commence a Net Proceeds Offer, it shall follow the
procedures specified in this Section 3.10.
(b) The notice of a Net Proceeds Offer shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Net Proceeds Offer. Each Net Proceeds Offer will be mailed to
all record Holders as shown on the register of Holders within 30 days following
the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall
comply with the procedures set forth in this Indenture. Upon receiving notice of
the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in
part in integral multiples of $1,000 in exchange for cash. A Net Proceeds Offer
shall remain open for a period of 20 Business Days or such longer period as may
be required by law. Upon the expiration of that period, the Company shall
promptly (but in any event within three Business Days following such expiration)
purchase the Notes and any such other pari passu Indebtedness properly tendered
in accordance with this Section 3.10 and Section 4.10. The notice, which shall
govern the terms of the Net Proceeds Offer, shall state:
(1) that the Net Proceeds Offer is being made pursuant to
this Section 3.10 and Section 4.10;
(2) the Net Proceeds Offer Amount, the Purchase Price and
the Purchase Date;
(3) that any Note not properly tendered or otherwise not
accepted for repurchase shall continue to accrue interest and
Additional Interest, if any;
(4) that, unless the Company defaults in the payment of
the amount due on the Purchase Date, all Notes or portions thereof
accepted for repurchase pursuant to the Net Proceeds Offer shall cease
to accrue interest and Additional Interest, if any, after the Purchase
Date;
(5) that Holders electing to have any Notes repurchased
pursuant to any Net Proceeds Offer shall be required to tender the
Notes, with the form entitled Option of Holder to Elect Purchase on the
reverse of the Notes completed, or transfer by book-entry transfer, 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 third Business Day preceding the Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the
case may be, receives, not later than the Purchase Date, a telegram,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes delivered for repurchase and a
statement that such Holder is withdrawing his election to have such
Notes repurchased in whole or in part; and
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(7) that, to the extent Holders properly tender Notes
(along with any other pari passu Indebtedness of the Company properly
tendered) in an amount exceeding the Net Proceeds Offer Amount, the
tendered Notes will be purchased pro rata based on the aggregate
amounts of Notes and other pari passu Indebtedness of the Company
properly tendered (and the Trustee shall select the tendered Notes of
tendering Holders pro rata based on the amount of Notes and other pari
passu Indebtedness of the Company properly tendered).
(c) On or before 10:00 A.M. New York City time on the
Purchase Date, the Company shall to the extent lawful, (i) accept for payment,
pro rata in accordance with this Indenture to the extent necessary, the Net
Proceeds Offer Amount of Notes or portions thereof properly tendered pursuant to
the Net Proceeds Offer (along with any other pari passu Indebtedness of the
Company properly tendered), or if less than the Net Proceeds Offer Amount has
been tendered, all Notes properly tendered, (ii) deposit with the Paying Agent
an amount equal to the Purchase Price, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the Purchase Date in respect of all
Notes or portions thereof so tendered and accepted for repurchase and (iii)
deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being repurchased by the Company. The Paying Agent shall
promptly (but in any case not later than five days after the Purchase Date) mail
to each Holder of Notes so repurchased the amount due in connection with such
Notes, and the Company shall promptly issue a new Note, and the Trustee, upon
written request from the Company in the form of an Officers' Certificate shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion to the Holder thereof; provided that
each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. The Company shall publicly announce the results of the Net
Proceeds Offer on or as soon as practicable after the Purchase Date.
(d) If the Purchase Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest and Additional Interest, if any, in each case to the 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 shall be
payable to Holders to the Net Proceeds Offer.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
(a) The Company shall pay or cause to be paid the
principal, Redemption Price and Purchase Price of, and interest and Additional
Interest (if any) on, the Notes on the dates, in the amounts and in the manner
provided herein and in the Notes. Principal, Redemption Price, Purchase Price
and interest shall be considered paid on the date due if the Paying Agent, if
other than the Company, holds as of 10:00 A.M. New York City time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the aggregate amount then due. The Company
shall pay all Additional Interest, if any, on the dates, in the amounts and in
the manner set forth in the Registration Rights Agreement.
(b) The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal, Redemption Price and Purchase Price at the rate equal to 2% 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 and
Additional Interest (without regard to any applicable grace period) at the same
rate to the extent lawful.
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Section 4.2. Maintenance of Office or Agency.
(a) 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 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 Office of the Trustee.
(b) 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 obligations 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.
(c) The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in accordance
with Section 2.3. The Trustee may resign such agency at any time by giving
written notice to the Company no later than 30 days prior to the effective date
of such resignation.
Section 4.3. Reports.
(a) Whether or not required by the rules and regulations
of the Commission, so long as any Notes are outstanding, the Company will
furnish the Trustee, on behalf of the Holders of the Notes:
(1) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries (showing in reasonable detail, either on the face of the
financial statements or in the footnotes thereto and in "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," the financial condition and results of operations of the
Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of
the Company, if any) and, with respect to the annual information only,
a report thereon by the Company's certified independent accountants;
and
(2) all current reports that would be required to be
filed with the Commission on Form 8-K if the Company were required to
file such reports,
in each case within the time periods specified in the
Commission's rules and regulations. The Company shall at all times comply with
TIA Section 314(a).
(b) In addition, following the consummation of the
exchange offer contemplated by the Registration Rights Agreement, whether or not
required by the rules and regulations of the Commission, the Company will file a
copy of all such information and reports with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company has agreed that, for so long as any Notes
remain outstanding, it will furnish to the
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Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 4.4. Compliance Certificate.
(a) The Company and each Guarantor shall deliver to the
Trustee, within 105 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture and further stating, as to each such Officer signing such certificate,
that to the best of his or her knowledge, after due inquiry, the Company has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in Default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (and, 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 that to the best of his or
her knowledge, after due inquiry, 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 are prohibited or if such event has occurred, a description of the
event.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly upon any Officer of the Company
obtaining knowledge of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and describing its status with
reasonable particularity and what action the Company is taking or proposes to
take with respect thereto.
Section 4.5. Taxes.
The Company shall pay or discharge, and shall cause each of
its Subsidiaries to pay or discharge, prior to delinquency, all material taxes,
assessments and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
Section 4.6. Stay, Extension and Usury Laws.
The Company 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 hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (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 such law has not been enacted.
Section 4.7. Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly (each of the
actions set forth in clauses (1), (2), (3) and (4) below being referred to as a
"Restricted Payment"):
(1) declare or pay any dividend or make any distribution
(other than dividends or distributions payable in Qualified Capital
Stock of the Company) on or in respect of shares of the Company's
Capital Stock to holders of such Capital Stock;
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(2) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such Capital
Stock (other than any such Capital Stock or warrants, rights or options
owned by the Company or any Restricted Subsidiary of the Company);
(3) make any principal payment on, purchase, defease,
redeem, prepay, decrease or otherwise acquire or retire for value,
prior to any scheduled final maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Indebtedness; or
(4) make any Investment (other than Permitted
Investments);
if at the time of such Restricted Payment or immediately after giving
effect thereto,
(i) a Default or an Event of Default shall have
occurred and be continuing; or
(ii) the Company is not able to incur at least
$1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.9(a); or
(iii) the aggregate amount of Restricted Payments
(including such proposed Restricted Payment) made subsequent
to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such
property as determined in good faith by the Board of Directors
of the Company) shall exceed the sum of:
(w) 50% of the cumulative Consolidated
Net Income (or if cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) of the
Company from the beginning of the fiscal quarter in
which the Notes are originally issued to the date the
Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period);
plus
(x) 100% of the aggregate net cash
proceeds received by the Company from any Person
(other than a Subsidiary of the Company) from the
issuance and sale subsequent to the Issue Date and on
or prior to the Reference Date of (1) Qualified
Capital Stock of the Company, (2) warrants, options
or other rights to acquire Qualified Capital Stock of
the Company (but excluding any debt security that is
convertible into, or exchangeable for, Qualified
Capital Stock) or (3) convertible or exchangeable
Disqualified Capital Stock or debt securities that
have been converted or exchanged in accordance with
their terms for Qualified Capital Stock; plus
(y) without duplication of any amounts
included in clause (iii)(x) above, 100% of the
aggregate net cash proceeds of any equity
contribution received by the Company from a holder of
the Company's Capital Stock subsequent to the Issue
Date and on or prior to the Reference Date
(excluding, in the case of clauses (iii)(x) and (y),
any net cash proceeds from an Equity Offering to the
extent used to redeem the Notes in compliance with
the provisions set forth under Section 3.8); plus
(z) without duplication, the sum of:
(1) the aggregate amount
returned in cash on or with respect to
Investments (other than Permitted
Investments) made subsequent to the Issue
Date whether through interest payments,
principal payments, dividends or other
distributions or payments;
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(2) the net cash proceeds
received by the Company or any of its
Restricted Subsidiaries from the disposition
of all or any portion of such Investments
(other than to a Restricted Subsidiary of
the Company); and
(3) upon redesignation of an
Unrestricted Subsidiary as a Restricted
Subsidiary, the fair market value of such
Subsidiary;
provided, however, that the sum of clauses
(1), (2) and (3) above shall not exceed the
aggregate amount of all such Investments
made subsequent to the Issue Date.
(b) Notwithstanding the foregoing, the provisions of
paragraph (a) of this Section 4.7, the provisions of this Section 4.7 do not
prohibit:
(1) the payment of any dividend within 60 days after the
date of declaration of such dividend if the dividend would have been
permitted on the date of declaration;
(2) the redemption, repurchase, retirement, defeasance or
other acquisition of any shares of Capital Stock of the Company, either
(i) solely in exchange for shares of Qualified Capital Stock of the
Company or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Restricted
Subsidiary of the Company) of shares of Qualified Capital Stock of the
Company;
(3) the redemption, repurchase, retirement, defeasance or
other acquisition of any Subordinated Indebtedness either (i) solely in
exchange for shares of Qualified Capital Stock of the Company, or (ii)
through the application of net proceeds of a substantially concurrent
sale for cash (other than to a Restricted Subsidiary of the Company) of
(a) shares of Qualified Capital Stock of the Company or (b) Refinancing
Indebtedness;
(4) so long as no Default or Event of Default shall have
occurred and be continuing redemption, repurchase, retirement,
defeasance or other acquisition by the Company of Common Stock of the
Company from officers, directors and employees of the Company or any of
its Subsidiaries or their authorized representatives upon the death,
disability or termination of employment of such employees or
termination of their seat on the board of the Company, in an aggregate
amount not to exceed $1.5 million in any calendar year; and
(5) so long as no Default or Event of Default shall have
occurred and be continuing, Restricted Payments in an aggregate amount
not to exceed $12.5 million.
In determining the aggregate amount of Restricted Payments
made subsequent to the Issue Date in accordance with clause (iii) of Section
4.7(a), amounts expended pursuant to clauses (1), (2)(ii), 3(ii)(a) and (4)
shall be included in such calculation.
Section 4.8. Limitation of Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on or
in respect of its Capital Stock;
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(2) make loans or advances to the Company or any other
Restricted Subsidiary or to pay any Indebtedness or other obligation
owed to the Company or any other Restricted Subsidiary of the Company;
or
(3) transfer any of its property or assets to the Company
or any other Restricted Subsidiary of the Company, except in each case
for such encumbrances or restrictions existing under or by reason of:
(a) applicable law, rule, regulation or order;
(b) this Indenture, the Notes and the
Guarantees;
(c) the Credit Agreement;
(d) customary non-assignment provisions of any
contract or any lease governing a leasehold interest of any
Restricted Subsidiary of the Company;
(e) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any
Person, other than the Person or the properties or assets of
the Person so acquired;
(f) agreements existing on the Issue Date to the
extent and in the manner such agreements are in effect on the
Issue Date;
(g) restrictions on the transfer of assets
subject to any Lien permitted under this Indenture imposed by
the holder of such Lien;
(h) restrictions imposed by any agreement to
sell assets or Capital Stock permitted under this Indenture to
any Person pending the closing of such sale;
(i) Purchase Money Indebtedness for property
acquired in the ordinary course of business that only impose
restrictions on the property so acquired;
(j) any agreement pursuant to which Indebtedness
was issued if (A) the encumbrance or restriction applies only
in the event of a payment default or a default with respect to
a financial covenant contained in such Indebtedness, (B) the
encumbrance or restriction is not materially more
disadvantageous to the Holders than is customary in comparable
financings (as determined by the Company) and (C) the Company
determines that any such encumbrance or restriction will not
materially affect the Company's ability to make principal or
interest payments on the Notes;
(k) Indebtedness permitted to be incurred
subsequent to the date of this Indenture pursuant to Section
4.9; provided that such encumbrances or restrictions are no
less favorable to the Company, taken as a whole, in any
material respect than the encumbrances or restrictions
contained in the Credit Agreement as in effect on the Issue
Date;
(l) any Qualified Securitization Transaction;
provided that such encumbrances and restrictions are
customarily required by the institutional sponsor or arranger
at the time of entering into such Qualified Securitization
Transaction in similar types of documents relating to the
purchase of similar Receivables in connection with the
financing therewith;
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(m) customary provisions in joint venture
agreements and other similar agreements (in each case relating
solely to the respective joint venture or similar entity or
the equity interests therein) entered into in the ordinary
course of business; and
(n) an agreement governing Indebtedness incurred
to Refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clauses (b) and (d)
through (g) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in any
such Indebtedness are no less favorable to the Company in any
material respect as determined by the Board of Directors of
the Company in their reasonable and good faith judgment than
the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clauses (b) and
(d) through (g).
Section 4.9. Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness); provided, however, that if no
Default or Event of Default shall have occurred and be continuing at the time of
or as a consequence of the incurrence of any such Indebtedness, the Company or
any of its Restricted Subsidiaries that is or, upon such incurrence, becomes a
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness) and any Restricted Subsidiary of the Company that is not or will
not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness,
in each case if on the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio
of the Company is greater than 2.0 to 1.0.
(b) The Company will not, and will not permit any
Guarantor to directly or indirectly, incur any Indebtedness which by its terms
(or by the terms of any agreement governing such Indebtedness) is expressly
subordinated in right of payment to any other Indebtedness of the Company or
such Guarantor, as the case may be, unless such Indebtedness is also by its
terms (or by the terms of any agreement governing such Indebtedness) made
expressly subordinate to the Notes or the applicable Guarantee, as the case may
be, to the same extent and in the same manner as such Indebtedness is
subordinated to other Indebtedness of the Company or such Guarantor, as the case
may be.
Section 4.10. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary,
as the case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value of the assets sold or
otherwise disposed of (as determined in good faith by the Company's
Board of Directors);
(2) at least 75% of the consideration received by the
Company or the Restricted Subsidiary, as the case may be, from such
Asset Sale shall be in the form of cash, Cash Equivalents and/or
Replacement Assets (as defined below) (or a combination thereof) and is
received at the time of such disposition; provided that
(A) the amount of any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent
balance sheet) of the Company or any such Restricted
Subsidiary (other than liabilities that are by their terms
subordinated to the Notes or any Guarantee of a Guarantor)
that are assumed by the transferee of any such assets; and
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(B) the fair market value of any securities or
other assets received by the Company or any such Restricted
Subsidiary in exchange for any such assets that are converted
into cash within 180 days after such Asset Sale;
shall be deemed to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company
shall apply, or cause such Restricted Subsidiary to apply, the Net
Cash Proceeds relating to such Asset Sale within 365 days of receipt
thereof either:
(a) to repay (i) any Obligations under the
Credit Agreement and effect a permanent reduction in the
availability under such Credit Agreement and (ii) in the case
of an Asset Sale by a Restricted Subsidiary that is not a
Guarantor, Obligations of such Restricted Subsidiary;
(b) to make an investment in properties and
assets that replace the properties and assets that were the
subject of such Asset Sale or in properties and assets
(including Capital Stock) that will be used in the business of
the Company and its Restricted Subsidiaries as existing on the
Issue Date or in businesses reasonably related thereto
("Replacement Assets");
(c) to acquire all or substantially all of the
assets of, or a majority of the voting Capital Stock of a
Permitted Business; and/or
(d) a combination of prepayment and investment
permitted by the foregoing clauses (3)(a) through (3)(c).
(b) When the Net Cash Proceeds from Asset Sales not
applied or invested as provided in the preceding paragraph total $5.0 million or
more (each, a "Net Proceeds Offer Trigger Date"), the Company will, within 30
days, make an offer to purchase (the "Net Proceeds Offer") to all Holders and,
to the extent required by the terms of any Pari Passu Debt, an offer to purchase
to all holders of such Pari Passu Debt, on a date (the "Net Proceeds Offer
Payment Date") not less than 30 nor more than 60 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders (and holders of any Pari Passu
Debt) on a pro rata basis, that amount of Notes (and Pari Passu Debt) equal to
the Net Proceeds Offer Amount at a price equal to 100% of the principal amount
of the Notes (and Pari Passu Debt) to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase; provided, however, that if at
any time any non-cash consideration received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any Asset Sale
is converted into or sold or otherwise disposed of for cash (other than as
contemplated by clause 2(b) above and other than interest received with respect
to any such non-cash consideration), then such conversion or disposition shall
be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds
thereof shall be applied in accordance with this covenant.
(c) Notwithstanding the foregoing sections 4.10(a) and
(b), the Company and its Restricted Subsidiaries will be permitted to consummate
an Asset Sale without complying with such paragraph to the extent that:
(1) at least 75% of the consideration for such Asset Sale
constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value;
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provided that any cash or Cash Equivalents received by the Company or any of its
Restricted Subsidiaries in connection with any Asset Sale permitted to be
consummated under this paragraph shall constitute Net Cash Proceeds subject to
the provisions of the foregoing sections 4.10(a) and (b).
(d) In the event of the transfer of substantially all
(but not all) of the property and assets of the Company and its Restricted
Subsidiaries as an entirety to a Person in a transaction permitted under Section
5.1, which transaction does not constitute a Change of Control, the successor
corporation shall be deemed to have sold the properties and assets of the
Company and its Restricted Subsidiaries not so transferred for purposes of this
covenant, and shall comply with the provisions of this covenant with respect to
such deemed sale as if it were an Asset Sale. In addition, the fair market value
of such properties and assets of the Company or its Restricted Subsidiaries
deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this
covenant.
(e) Each Net Proceeds Offer will be mailed to the record
Holders as shown on the register of Holders within 30 days following the Net
Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with
the procedures set forth in this Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Notes in whole or in part in
integral multiples of $1,000 in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the Net Proceeds Offer Amount,
Notes of tendering Holders will be purchased on a pro rata basis (based on
amounts tendered). A Net Proceeds Offer shall remain open for a period of 20
business days or such longer period as may be required by law. If any Net Cash
Proceeds remain after the consummation of any Net Proceeds Offer, the Company
may use those Net Cash Proceeds for any purpose not otherwise prohibited by this
Indenture. Upon completion of each Net Proceeds Offer, the amount of Net Cash
Proceeds will be reset at zero.
(f) 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 in connection
with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 4.10 or Section 3.10, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.10 or Section 3.10 by virtue thereof.
Section 4.11. Limitations on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each, an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (c) of this Section and (y) Affiliate Transactions on
terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate of the Company or such Restricted Subsidiary.
(b) All Affiliate Transactions (and each series of
related Affiliate Transactions which are similar or part of a common plan)
involving aggregate payments or other property with a fair market value in
excess of $2.5 million shall be approved by the Board of Directors of the
Company or such Restricted Subsidiary, as the case may be, such approval to be
evidenced by a Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing provisions. If the
Company or any Restricted Subsidiary of the Company enters into an Affiliate
Transaction (or a series of related Affiliate Transactions related to a common
plan) that involves an aggregate fair market value of more than $7.5 million,
the Company or such Restricted Subsidiary, as the case may be, shall, prior to
the consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point of view, from
an Independent Financial Advisor and file the same with the Trustee.
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(c) The restrictions set forth in paragraphs (a) and (b)
of this Section 4.11 shall not apply to:
(1) reasonable fees and compensation paid to and
indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary of the Company
as determined in good faith by the Company's Board of Directors or
senior management;
(2) transactions exclusively between or among the Company
and any of its Wholly Owned Restricted Subsidiaries or exclusively
between or among such Wholly Owned Restricted Subsidiaries, provided
such transactions are not otherwise prohibited by this Indenture;
(3) any agreement as in effect as of the Issue Date or
any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date;
(4) Restricted Payments permitted by this Indenture; and
(5) any sale, conveyance or other transfer of Receivables
and other related assets customarily transferred in a Qualified
Securitization Transaction.
Section 4.12. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless:
(1) in the case of Liens securing Subordinated
Indebtedness, the Notes or the Guarantee of such Guarantor, as the case
may be, are secured by a Lien on such property, assets or proceeds that
is senior in priority to such Liens; and
(2) in all other cases, the Notes or the Guarantee of
such Guarantor, as the case may be, are equally and ratably secured,
except for:
(a) Liens existing as of the Issue Date to the
extent and in the manner such Liens are in effect on the Issue
Date;
(b) Liens securing Indebtedness and other
Obligations under the Credit Agreement incurred pursuant to
clause (2) of the definition of "Permitted Indebtedness";
(c) Liens securing the Notes and the Guarantees;
(d) Liens of the Company or a Wholly Owned
Restricted Subsidiary of the Company on assets of any
Restricted Subsidiary of the Company;
(e) Liens securing Refinancing Indebtedness
which is incurred to Refinance any Indebtedness which has been
secured by a Lien permitted under this Indenture and which has
been incurred in accordance with the provisions of this
Indenture; provided, however, that such Liens: (i) are no less
favorable to the Holders in any material respect and are not
more favor-
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able to the lienholders in any material respect with respect
to such Liens than the Liens in respect of the Indebtedness
being Refinanced; and (ii) do not extend to or cover any
property or assets of the Company or any of its Restricted
Subsidiaries not securing the Indebtedness so Refinanced; and
(f) Permitted Liens.
Section 4.13. Continued Existence.
Subject to Article V, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
or other existence and the corporate or other existence of each Guarantor in
accordance with the organizational documents (as the same may be amended from
time to time) of the Company or such Guarantor, except to the extent that the
Board of Directors of the Company determines in good faith that the preservation
of such existence is no longer necessary or desirable in the conduct of the
business of the Company or such Guarantor, taken as a whole, and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 4.14. Insurance Matters.
The Company shall provide or cause to be provided for itself
and each of its Subsidiaries insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company, are adequate and appropriate for the conduct of the business of
the Company and its Subsidiaries in a prudent manner, with reputable insurers or
with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the reasonable, good faith opinion of the
Company, for corporations similarly situated in the industry, unless, in the
good faith judgment of the Board of Directors of the Company, the failure to
provide such insurance (together with all other such failures) would not have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
Section 4.15. Offer to Repurchase upon Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder will have the right to require that the Company purchase all or a portion
of such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer"), at a purchase price equal to 101% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest, if any,
thereon to the Purchase Date.
(b) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
(c) 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 in connection
with the repurchase of Notes pursuant to a Change of Control Offer. To the
extent that the provisions of any securities laws or regulations conflict with
this Section 4.15 or Section 3.9, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.15 or Section 3.9 by virtue thereof.
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Section 4.16. Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries transfers
or causes to be transferred, in one transaction or a series of related
transactions, any property to any Domestic Restricted Subsidiary that is not a
Guarantor, or if the Company or any of its Restricted Subsidiaries shall
organize, acquire or otherwise invest in another Domestic Restricted Subsidiary
having total assets with a book value in excess of $500,000, then such
transferee or acquired or other Restricted Subsidiary shall:
(1) execute and deliver to the Trustee a supplemental
indenture in form reasonably satisfactory to the Trustee pursuant to
which such Restricted Subsidiary shall unconditionally guarantee all of
the Company's obligations under the Notes and this Indenture on the
terms set forth in this Indenture; and
(2) deliver to the Trustee an opinion of counsel that
such supplemental indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and constitutes a legal, valid,
binding and enforceable obligation of such Restricted Subsidiary.
Thereafter, such Restricted Subsidiary shall be a Guarantor
for all purposes of this Indenture.
Section 4.17. Payments for Consent.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.18. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries
that are not Guarantors to issue any Preferred Stock (other than to the Company
or to a Wholly Owned Restricted Subsidiary of the Company) or permit any Person
(other than the Company or a Wholly Owned Restricted Subsidiary of the Company)
to own any Preferred Stock of any Restricted Subsidiary that is not a Guarantor.
Section 4.19. Conduct of Business.
The Company and its Restricted Subsidiaries will not engage in
any businesses other than a Permitted Business, except to the extent as would
not be material to the Company and its Restricted Subsidiaries taken as a whole.
ARTICLE V.
SUCCESSORS
Section 5.1. Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or
series of related transactions, consolidate or merge with or into any Person, or
sell, assign, transfer, lease, convey or otherwise dispose of (or cause or
permit any Restricted Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the Company's
assets (determined on a consolidated basis for the Company
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and the Company's Restricted Subsidiaries) whether as an entirety or
substantially as an entirety to any Person unless:
(1) either:
(a) the Company shall be the surviving or
continuing corporation; or
(b) the Person (if other than the Company)
formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's
Restricted Subsidiaries substantially as an entirety (the
"Surviving Entity"):
(x) shall be a corporation organized
and validly existing under the laws of the United
States or any State thereof or the District of
Columbia; and
(y) shall expressly assume, by
supplemental indenture (in form and substance
satisfactory to the Trustee), executed and delivered
to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on
all of the Notes and the performance of every
covenant of the Notes, this Indenture and the
Registration Rights Agreement on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction
and the assumption contemplated by clause (1)(b)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be,
shall be able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.9(a);
(3) immediately before and immediately after giving
effect to such transaction and the assumption contemplated by clause
(1)(b)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing; and
(4) the Company or the Surviving Entity shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the applicable provisions of
this Indenture and that all conditions precedent in this Indenture
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
(b) Notwithstanding the foregoing clauses (1), (2) and
(3) of Section 5.1(a), the Company may merge with an Affiliate that is a Person
that has no material assets or liabilities and which was organized solely for
the purpose of reorganizing the Company in another jurisdiction.
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(c) Each Guarantor (other than any Guarantor whose
Guarantee is to be released in accordance with the terms of the Guarantee and
this Indenture in connection with any transaction complying with Section 4.10
will not, and the Company will not cause or permit any Guarantor to, consolidate
with or merge with or into any Person other than the Company or any other
Guarantor unless:
(1) the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor) or to which such
sale, lease, conveyance or other disposition shall have been made is a
corporation or a partnership or a limited liability company, in each
case, organized and existing under the laws of the United States or any
State thereof or the District of Columbia;
(2) such entity (if other than the Guarantor) assumes by
supplemental indenture all of the obligations of the Guarantor under
its Guarantee, this Indenture and the Registration Rights Agreement;
(3) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing;
and
(4) immediately after giving effect to such transaction
and the use of any net proceeds therefrom on a pro forma basis, the
Company could satisfy the provisions of clause (2) of Section 5.1(a).
Any merger or consolidation of a Guarantor with and into the
Company (with the Company being the surviving entity) or another Guarantor that
is a Restricted Subsidiary of the Company need only comply with clause (4) of
Section 5.1(a).
Section 5.2. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with
Section 5.1 in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and be substituted for, 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 Surviving Entity had been named as such. When a successor
corporation assumes all of the obligations of the predecessor hereunder and
under the Notes and the Security Documents and agrees in writing to be bound
hereby and thereby, the predecessor shall be released from such obligations.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
Each of the following constitutes an "Event of Default":
(a) the failure to pay interest on any Notes when the
same becomes due and payable and the default continues for a period of
30 days;
(b) the failure to pay the principal on any Notes, when
such principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds
Offer);
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(c) a default in the observance or performance of any
other covenant or agreement contained in this Indenture which default
continues for a period of 30 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.1, which will constitute an Event of
Default with such notice requirement but without such passage of time
requirement);
(d) the failure to pay at final maturity (giving effect
to any applicable grace periods and any extensions thereof) the stated
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary of the Company, or the acceleration of the final stated
maturity of any such Indebtedness (which acceleration is not rescinded,
annulled or otherwise cured within 20 days of receipt by the Company or
such Restricted Subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure
to pay principal at final stated maturity or which has been accelerated
(in each case with respect to which the 20-day period described above
has elapsed), aggregates $7.5 million or more at any time;
(e) one or more judgments in an aggregate amount in
excess of $7.5 million shall have been rendered against the Company or
any of its Restricted Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable;
(f) the Company or any Significant Subsidiary of the
Company:
(i) commences a voluntary case under any
Bankruptcy Law,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a custodian
or receiver 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 to pay its
debts as they become due; or
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief in an involuntary case against
the Company or any Significant Subsidiary of the Company;
(ii) appoints a custodian or receiver of the
Company or any Significant Subsidiary or for all or
substantially all of the property of any of the foregoing;
(iii) orders the liquidation of the Company or any
of its Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days;
(h) any Guarantee of a Significant Subsidiary ceases to
be in full force and effect or is declared to be null and void and
unenforceable or is found to be invalid or any Guarantor that is a
Sig-
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nificant Subsidiary denies its liability under its Guarantee (other
than by reason of release of a Guarantor in accordance with the terms
of this Indenture).
Section 6.2. Acceleration.
If an Event of Default (other than an Event of Default
specified in clause (f) or (g) of Section 6.1 above with respect to the Company)
shall occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Notes may declare the principal of and accrued
interest on all the Notes to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that it
is a "notice of acceleration" (the "Acceleration Notice"), and the same shall
become immediately due and payable.
If an Event of Default specified in clause (f) or (g) of
Section 6.1 above with respect to the Company occurs and is continuing, then all
unpaid principal of, and premium, if any, and accrued and unpaid interest on all
of the outstanding Notes 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.
At any time after a declaration of acceleration with respect
to the Notes as described in the preceding paragraph, the Holders of a majority
in principal amount of the Notes may rescind and cancel such declaration and its
consequences:
(1) if the rescission would not conflict with any
judgment or decree;
(2) if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due
solely because of the acceleration;
(3) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid;
(4) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances; and
(5) in the event of the cure or waiver of an Event of
Default of the type described in clause (f) of Section 6.1, the Trustee
shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
Section 6.3. 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, interest or Additional Interest, if any, 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, and
any recovery or judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Notes.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing 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.
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Section 6.4. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes may
waive any existing or past Default or Event of Default under this Indenture, and
its consequences, except a default in the payment of the principal of or
interest on any Notes. 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 6.5. 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 applicable law or this Indenture that the Trustee
reasonably determines may be unduly prejudicial to the rights of other Holders
of Notes or that may subject the Trustee to personal liability and shall be
entitled to the benefit of Sections 7.1(c)(iii) and 7.1(e).
Section 6.6. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(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 or Holders of Notes offer and, if
requested, provide to the Trustee reasonable 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.
Section 6.7. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, interest or Additional Interest, if any, on the Note, on or after the
respective due dates thereon (including in connection with an offer to
repurchase), 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
written consent of such Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.l(a) or (b)
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
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whole amount of principal of, premium and Additional Interest, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and Additional Interest, if any, and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expense, disbursements and advances of
the Trustee, its agents and counsel.
Section 6.9. 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 (including
accountants, experts or such other processionals as the Trustee deems necessary,
advisable or appropriate) and counsel) and the Holders of the Notes allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled to participate as a
member, voting or otherwise, of any official committee of creditors appointed in
such matter 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 7.7. 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 7.7 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.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.7, 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 Holders of Notes for amounts due and unpaid on the
Notes for principal, Purchase Price, Redemption Price and Additional
Interest, if any, and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, Purchase Price, Redemption Price and Additional Interest, if
any, and interest, respectively; and
Third: to the Company, the Guarantors, if any, or to such
party as a court of competent jurisdiction shall direct.
The Trustee may fix a special record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
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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, 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 pursuant to Section 6.7 or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII.
TRUSTEE
Section 7.1. 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
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(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 TIA 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 or the TIA against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, without investigation, as to the truth or the
statements and the correctness of the opinions expressed therein, upon
and statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform on their face to the requirements of this Indenture but
not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein or otherwise verify the contents thereof.
(c) The Trustee may not be relieved from liabilities 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 7.1;
(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 6.5.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
this Section 7.1.
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(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 Holder, pursuant to the provisions of this
Indenture, including, without limitation, Section 6.5, unless such Holder shall
have offered to the Trustee security and indemnity reasonably satisfactory to it
against any loss, liability or expense which might be incurred by it in
compliance with such request or direction.
(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.
Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely and shall be
protected in acting or refraining from acting 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 refrain 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 and the written advice of such counsel and
Opinions 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,
accountants, experts and such other professionals as the Trustee deems
necessary, advisable or appropriate and shall not be responsible for the
misconduct or negligence of any attorney, accountant, expert or other such
professional 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 herein, any
demand, request, direction or notice from the Company shall be sufficiently
evidenced by a written order signed by two Officers of the Company.
(f) The Trustee shall not be charged with knowledge of
any Default or Event of Default under Section 6.1 (other than under Section
6.1(a) (subject to the following sentence) or Section 6.1(b)) unless either (i)
a Responsible Officer shall have actual knowledge thereof, or (ii) the Trustee
shall have received notice thereof in accordance with Section 12.2 from the
Company or any Holder of the Notes. The Trustee shall not be charged with
knowledge of the Company's obligation to pay Additional Interest, or the
cessation of such obligation, unless the Trustee receives written notice thereof
from the Company or any Holder.
(g) The Trustee shall have no duty (i) to cause the
maintenance of any insurance, (ii) to see to the payment or discharge of any
tax, charge or Lien levied against any part of the Collateral, or (iii) to see
to the filing or refiling of any Security Documents.
Section 7.3. 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 or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest within the meaning
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of the TIA it must eliminate such conflict within 90 days, apply (subject to the
consent of the Company) to the Commission for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
shall also be subject to Sections 7.10 and 7.11.
Section 7.4. 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 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 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing, the
Trustee shall mail to Holders of Notes a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default in
payment on any Note (including the failure to make a mandatory repurchase
pursuant hereto), 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 7.6. 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 Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 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 Commission
and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.7. Compensation, Reimbursement and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and the rendering
by it of the services required hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by or on behalf of it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's attorneys,
accountants, experts and such other professionals as the Trustee deems
necessary, advisable or appropriate.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture
(including its duties under Section 9.6), including the costs and expenses of
enforcing this Indenture or any Guarantee against the Company or a Guarantor
(including this Section 7.7) and defending itself against or investigating any
claim (whether asserted by the Company, any Guarantor, 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
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any such loss, liability or expense may be attributable to its negligence or
willful misconduct. 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 of its obligations hereunder. The Company shall
defend any claim or threatened claim asserted against the Trustee, and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall
survive the resignation or removal of the Trustee, the satisfaction and
discharge of this Indenture and the termination of this Indenture.
To secure the Company's payment obligations in this Section
7.7, 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,
Redemption Price or Purchase Price of or Additional Interest, if any, or
interest on, particular Notes. Such Lien shall survive the resignation or
removal of the Trustee, the satisfaction and discharge of this Indenture and the
termination of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) 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.
Section 7.8. 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 7.8.
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;
(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, receiver or public officer takes charge
of the Trustee or its property for the purpose of rehabilitation,
conversion or liquidation; or
(d) the Trustee becomes incapable of acting.
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 date on which 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 30 days
after the retiring trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee, after written request by any Holder of a Note
who has been a bona fide holder of a Note or Notes for at least six months,
fails to comply with Section 7.10, 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 Company 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
7.7. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company's obligations under Section 7.7 shall continue for the benefit of
the retiring Trustee.
Section 7.9. 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 that is eligible under Section 7.10, 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 (including the District of Columbia) that is
authorized under such laws to exercise corporate trust power, that is subject to
supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100 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 Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option evidenced by a resolution of
its Board of Directors set forth in an Officers' Certificate, at any time, elect
to have its obligations and the obligations of any Guarantors discharged with
respect to the then outstanding Notes in accordance with either Section 8.2 or
8.3 as provided in this Article VIII.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.2, the Company and any Guarantor shall, subject to
the satisfaction of the conditions set forth in Section 8.4, be
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deemed to have been discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company and the Guarantors, if any, shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes and any
Guarantees thereon, which shall thereafter be deemed to be "outstanding" only
for the purposes of Section 8.5 and the other Sections of this Indenture
referred to in clauses (a) through (d) below, and to have satisfied all their
other obligations under such Notes, this Indenture and the Security Documents
(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
payments in respect of the principal of, premium, if any, and interest
on the Notes when such payments are due;
(b) the Company's obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes and the maintenance of an office or
agency for payments;
(c) the rights, powers, trust, duties and immunities of
the Trustee and the Company's obligations in connection therewith; and
(d) the Legal Defeasance provisions of this Article VIII.
Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.2, notwithstanding the prior exercise
of its option under Section 8.3.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.4, be released from its obligations
under the covenants contained in Sections 3.9, 3.10, 3.11, 4.3, 4.4, 4.5, 4.7
through 4.12 and 4.14 through 4.19, both inclusive, and Section 5.1(b), Article
XI and Article XII with respect to the outstanding Notes 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 6.1,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 8.1 of the option applicable to this Section 8.3, subject to the
satisfaction of the conditions set forth in Section 8.4, Sections 6.1(c) through
6.1(j) shall not constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following are the conditions precedent to the application
of either Section 8.2 or 8.3 to the outstanding Notes as specified:
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In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders cash in U.S. dollars,
non-callable U.S. government obligations, or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest on the Notes on the stated date for
payment thereof or on the applicable Redemption Date, as the case may
be;
(2) in the case of Legal Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that:
(a) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling; or
(b) since the date of this Indenture, 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 will not
recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders
will not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(4) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a Default or
an Event of Default resulting from the borrowing of funds to be applied
to such deposit and the grant of any Lien securing such borrowings);
(5) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under
this Indenture (other than a Default or an Event of Default resulting
from the borrowing of funds to be applied to such deposit and the grant
of any Lien securing such borrowings) or any other material agreement
or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(6) 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 over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(7) 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;
(8) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that assuming no intervening
bankruptcy of the Company between the date of deposit and the 91st day
following the date of deposit and that no Holder is an insider of the
Company, after the 91st day follow-
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ing the date of deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally; and
(9) certain other customary conditions precedent are
satisfied.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (2) above with respect to a Legal Defeasance need not be delivered if
all Notes not theretofore delivered to the Trustee for cancellation (1) have
become due and payable or (2) will become due and payable on the maturity date
within one year, or are to be called for redemption within one year, under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
Section 8.5. Deposited Money and U.S. Government Securities to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.6, all money and U.S. Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5 only) pursuant
to Section 8.4 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 (other
than the Company) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal, Redemption Price
or Purchase Price of, and Additional Interest, if any, or interest on, the
Notes, that such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Securities deposited pursuant to Section 8.4 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 VIII 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 U.S. Government Securities held by it as
provided in Section 8.4 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 8.4),
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 8.6. 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, Redemption
Price or Purchase Price of, or Additional Interest, if any, or interest on any
Note and remaining unclaimed for two years after such amount has 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 look only to the Company for payment thereof as a general creditor,
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, at the expense of the Company, if required
by applicable law cause to be published once, in The New York Times and The Wall
Street Journal (national editions), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days after
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
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Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Securities in accordance with Section 8.2 or
8.3, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3, as the
case may be; provided, however, that, if the Company makes any payment with
respect to any Note following the reinstatement of its obligations, the Company
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 IX.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes.
Notwithstanding Section 9.2 of this Indenture, the Company,
the Guarantors, if any, and the Trustee may amend or supplement this Indenture,
the Notes or any Security Document without the consent of any Holder of a Note:
(a) to cure any ambiguity, omission, defect or
inconsistency so long as such changes do not adversely affect the
rights of any of the Holders in any material respect.
(b) to provide for the assumption of the Company's
obligations to the Holders of the Notes in the case of a merger or
consolidation or sale of all or substantially all of the Company's
assets pursuant to Article V;
(c) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the TIA; or
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the rights hereunder of any Holder of the Notes in any
material respect.
Upon the written request of the Company, accompanied by a
Board Resolution (evidenced by an Officers' Certificate) authorizing the
execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.2, the Trustee shall join with
the Company 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 9.2. With Consent of Holders of Notes.
Except as provided below in this Section 9.2, the Company, the
Trustee and the Guarantors, if any, 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, without limitation, consents
obtained in connection with a tender offer or exchange offer for the Notes),
and, subject to Sections 6.2, 6.4 and 6.7, any existing Default or Event of
Default or compliance with any provision of this Indenture, the Notes may be
waived with the
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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).
Without the consent of each Holder affected, an amendment or
waiver may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the amount of Notes whose Holders must consent
to an amendment;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Notes;
(3) reduce the principal of or change or have the effect
of changing the fixed maturity of any Notes, or change the date on
which any Notes may be subject to redemption or reduce the redemption
price therefor;
(4) make any Notes payable in money other than that
stated in the Notes;
(5) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of principal of
and interest on such Note on or after the due date thereof or to bring
suit to enforce such payment, or permitting Holders of a majority in
principal amount of Notes to waive Defaults or Events of Default;
(6) after the Company's obligation to purchase Notes
arises thereunder, amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control or make and consummate a Net
Proceeds Offer with respect to any Asset Sale that has been consummated
or, after such Change of Control has occurred or such Asset Sale has
been consummated, modify any of the provisions or definitions with
respect thereto; or
(7) change any provision of this Indenture or the related
definitions affecting the ranking of the Notes or any Guarantees in a
manner materially adverse to the Holders of the Notes; or
(8) release any Guarantor that is a Significant
Subsidiary from any of its obligations under its Guarantee or this
Indenture otherwise than in accordance with the terms of this
Indenture.
Upon the written request of the Company accompanied by a
resolution of the Board (evidenced by an Officers' Certificate) authorizing the
execution of any such amended or supplemental indenture, and upon the filing
with the Trustee of evidence 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 7.2, the Trustee shall join with the Company 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 9.2 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
9.2 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supple-
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ment 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.
Section 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
Section 9.4. 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 therefore binds every Holder.
Section 9.5. 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 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.
Section 9.6. Trustee to Sign Amendment, Etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amended or supplemental indenture until the Board
approves such amended or supplemental indenture. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive, in addition to
the documents required by Sections 12.4 and 12.5, and, subject to Section 7.1,
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that (i) the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture, (ii) no
Event of Default shall occur as a result of the execution of such Officers'
Certificate or the delivery of such Opinion of Counsel and (iii) the amended or
supplemental indenture complies with the terms of this Indenture.
ARTICLE X.
GUARANTEE
Section 10.1. Unconditional Guarantee.
Each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, hereby unconditionally guarantees, on a
senior basis and jointly and severally, to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
the Notes or the obligations of the Company hereunder or thereunder, that: (i)
the principal of and interest on the Notes will be promptly paid in full when
due, subject to any applicable grace period, whether at maturity, by
acceleration, upon redemption, purchase pursuant to Article III or otherwise,
and interest on the overdue principal, if any, and
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interest on any interest, to the extent lawful, of the Notes and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Notes or of any such other obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, subject to any applicable grace period, whether at Stated Maturity,
by acceleration, upon redemption, purchase pursuant to Article III or otherwise,
subject, however, in the case of clauses (i) and (ii) above, to the limitations
set forth in Section 10.3. Each Guarantor, if any, upon the execution and
delivery of a Guarantee pursuant to Section 4.16, hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof (other than a waiver of all or
part of the provisions of this Article X), the recovery of any judgment against
the Company, and action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and in this Guarantee. If any
Holder or the Trustee is required by any court or otherwise to return to the
Company, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount paid by
the Company or any Guarantor to the Trustee or such Holder, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor, if any, upon the execution and delivery of a Guarantee pursuant
to Section 4.16, further agrees that, as between each Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article VI
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article VI, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of this
Guarantee.
Section 10.2. Severability.
In case any provision of this Guarantee 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 10.3. Limitation of Guarantor's Liability.
Each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer
or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under the
Guarantee shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guarantee or pursuant to Section 10.5, result in the obligations of such
Guarantor under the Guarantee not constituting such fraudulent transfer or
conveyance.
Section 10.4. Release of Guarantor.
(a) Any Guarantee by a Restricted Subsidiary pursuant to
Section 4.16 shall be automatically and unconditionally released and discharged,
without any further action required on the part of the Trustee or any Holder of
the Notes, upon:
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(1) the unconditional release of such Restricted
Subsidiary from its liability in respect of the Indebtedness in
connection with which such Guarantee was executed and delivered
pursuant to Section 4.16;
(2) the legal defeasance of the Notes as described under
Sections 8.2 and 8.3;
(3) (A) the merger of any Guarantor into the Company, (B)
the dissolution of any Guarantor into the Company or (C) the transfer
of all or substantially all of the assets of any Guarantor to the
Company; or
(4) the sale or other disposition of all or substantially
all of the assets of, or the sale of all of the capital stock of, or
other disposition (by merger or otherwise) to any Person which is not a
Restricted Subsidiary of the Company of all of the Company's Capital
Stock in, or all or substantially all of the assets of, such Restricted
Subsidiary; provided that (A) such sale or disposition of such Capital
Stock or assets is otherwise in compliance with the terms of this
Indenture and (B) such assumption, guarantee or other liability of such
Restricted Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
(b) The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate and Opinion of Counsel certifying as to the compliance
with this Section 10.4. Any Guarantor not so released shall remain liable for
the full amount of principal of and interest on the Notes as provided in this
Article X.
(c) All Guarantees shall be of no further force and
effect upon the occurrence of a Legal Defeasance or a Covenant Defeasance
pursuant to Section 8.2 or 8.3, subject to reinstatement pursuant to Section 8.7
under the circumstances described therein.
Section 10.5. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets (as
defined below) of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in discharging
the Company's obligations with respect to the Notes or any other Guarantor's
obligations with respect to the Guarantee. "Adjusted Net Assets" of such
Guarantor at any date shall mean the lesser of the amount by which (x) the fair
value of the property of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date),
but excluding liabilities under the Guarantee, of such Guarantor at such date
and (y) the present fair salable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), excluding debt in
respect of the Guarantee of such Guarantor, as they become absolute and matured.
Section 10.6. Waiver of Subrogation.
Until all Obligations under the Notes and this Indenture are
paid in full, each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, hereby irrevocably waives any claims or
other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of such
Guarantor's obligations under the Guarantee and this Indenture, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right
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to participate in any claim or remedy of any Holder against the Company, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Guarantor in violation of the
preceding sentence and the Notes shall not have been paid in full, such amount
shall have been deemed to have been paid to such Guarantor for the benefit of,
and held in trust for the benefit of, the Holders, and shall, forthwith be paid
to the Trustee for the benefit of such Holders to be credited and applied upon
the Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor, if any, upon the execution and delivery of a
Guarantee pursuant to Section 4.16, acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the waiver set forth in this Section 10.6 is knowingly made in
contemplation of such benefits.
Section 10.7. Execution of Guarantee.
To evidence its guarantee to the Holders set forth in this
Article X, each Guarantor required to execute and deliver of a Guarantee
pursuant to Section 4.16 hereby agrees to execute the Guarantee in substantially
the form attached hereto as Exhibit C, which shall be endorsed on each Note
ordered to be authenticated and delivered by the Trustee. Each Guarantor, upon
the execution and delivery of a Guarantee pursuant to Section 4.16, hereby
agrees that its Guarantee shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Guarantor by two Officers, or an
Officer and an Assistant Secretary or one Officer shall sign and one Officer or
an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to such Guarantee
prior to the authentication of the Note on which it is endorsed, and the
delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Guarantee on behalf of such
Guarantor. Such signatures upon the Guarantee may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such officer who shall have signed the Guarantee
shall cease to be such officer before the Note on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Note nevertheless may be authenticated and delivered or
disposed of as though the Person who signed the Guarantee had not ceased to be
such officer of the Guarantor.
Section 10.8. Waiver of Stay, Extension or Usury Laws.
Each Guarantor, upon the execution and delivery of a Guarantee
pursuant to Section 4.16, hereby covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive each such Guarantor
from performing its Guarantee as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
each such Guarantor hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect (except as set forth below) as to all outstanding Notes and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(1) either:
(a) all the Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have
been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee
for cancellation; or
(b) all Notes not theretofore delivered to the
Trustee for cancellation (1) have become due and payable by
reason of the mailing of a notice of redemption or otherwise
or (2) will become due and payable within one year, or are to
be called for redemption within one year, under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company, and the Company has irrevocably deposited or
caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the
Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest
on the Notes to the date of deposit, together with irrevocable
instructions from the Company directing the Trustee to apply
such funds to the payment thereof at maturity or redemption,
as the case may be;
(2) the Company has paid all other sums payable under
this Indenture by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the Company's obligations in Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7,
7.8, 12.2, 12.3 and 12.4, and the Trustee's and Paying Agent's obligations in
Section 11.2 shall survive until the Notes are no longer outstanding.
Thereafter, only the Company's obligations in Section 7.7 shall survive.
Section 11.2. Application of Trust.
All money deposited with the Trustee pursuant to Section 11.1
shall be held in trust and, at the written direction of the Company, be invested
prior to maturity in U.S. Government Securities, and applied by the Trustee in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for the payment of which money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required by
law.
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ARTICLE XII.
MISCELLANEOUS
Section 12.1. Trust Indenture Act Controls.
If any provision hereof limits, qualifies or conflicts with a
provision of the TIA or another provision that would be required or deemed under
such Act to be part of and govern this Indenture if this Indenture were subject
thereto, the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 12.2. Notices.
Any notice or communication by the Company or the Trustee to
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company:
Mobile Mini Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Company 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, or in the case of any offer to purchase Notes under
Section 3.9, 3.10 or 3.11 upon the date the communication is postmarked; when
answered back, if telexed; when receipt acknowl-
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edged, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery, except
that notices to the Trustee shall be effective only upon receipt.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, 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 Section 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 address
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 12.3. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 12.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company and/or any
Guarantor to the Trustee to take any action under this Indenture, the Company
and/or any 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 12.5) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
satisfied; and
(b) if requested by the Trustee, an Opinion of Counsel in
form and substance reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.5) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
Section 12.5. 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 Section 314(a)(4)) shall comply with the provisions of
TIA Section 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
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(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 12.6. 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 12.7. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator, agent or stockholder or Affiliate of the Company, as such, shall
have any liability for any obligations of the Company under the Notes or this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. No past, present or future director, officer,
employee, incorporator, agent or stockholder or Affiliate of any of the
Guarantors, if any, as such, shall have any liability for any obligations of the
Guarantors under the Guarantees or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Notes and Guarantees by accepting a Note and a Guarantee waives and releases all
such liabilities. The waiver and release are part of the consideration for
issuance of the Notes and the Guarantees. Such waiver may not be effective to
waive liabilities under the federal securities law and it is the view of the
Commission that such a waiver is against public policy.
Section 12.8. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial.
THE VALIDITY AND INTERPRETATION OF THIS INDENTURE, THE
GUARANTEES, IF ANY, AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH PARTY HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE GUARANTEES, IF ANY,
AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS IN
RESPECT OF SUCH SUIT OR ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES AND THE GUARANTEES. EACH OF THE TRUSTEE, THE COMPANY AND
ANY GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. Nothing
herein shall affect the right of the Trustee or any Holder of the Notes to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Company or any Guarantor in any other
jurisdiction.
Section 12.9. 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.
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Section 12.10. Successors.
All agreements of the Company and any Guarantor in this
Indenture and the Notes and Guarantees shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes or any
Guarantees shall be held to 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 shall represent
the same agreement.
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, which 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.
Section 12.14. Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all reasonable costs and expenses (including attorneys' fees for
the Company, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be entitled to receive from the Company any such Officers' Certificates,
Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
MOBILE MINI INC.
By: _________________________________________
Name:
Title:
DELIVERY DESIGN SYSTEMS, INC.
MOBILE MINI, LLC (CA)
MOBILE MINI, LLC (DE)
MOBILE MINI I, INC.
MOBILE MINI HOLDINGS, INC.
MOBILE MINI OF OHIO, LLC
MOBILE MINI TEXAS LIMITED PARTNERSHIP, L.L.P.
By: _________________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
as Trustee
By: _________________________________________
Name:
Title:
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EXHIBIT A
FORM OF SERIES A NOTE
(Face of Note)
MOBILE MINI INC.
9 1/2% SENIOR NOTE DUE 2013
[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 OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR"), (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO MOBILE MINI INC. OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS
------------------
(1) To be included only if the Note is issued in global form.
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AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO MOBILE MINI
INC. IF MOBILE MINI INC. SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND MOBILE MINI INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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MOBILE MINI INC.
9 1/2% SENIOR NOTE DUE 2013
CUSIP No. 00160740F AC 9
No. 001 $____________________________
Interest Payment Dates: January 1 and July 1, commencing January 1, 2004
Record Dates: December 15 and June 15
MOBILE MINI INC., a Delaware corporation (the "Company," which
term includes any successor corporation under the indenture hereinafter referred
to ), for value received, promises to pay to CEDE & CO., or registered assigns,
the principal sum of $150,000,000 on July 1, 2013.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefits under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
Dated:
MOBILE MINI INC.
By: ________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Trustee
By: _______________________________________
Authorized Signatory
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(Back of Note)
9 1/2% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at the rate of 9 1/2% per annum from the date of
original issuance until maturity and shall pay the Additional Interest pursuant
to the registration rights agreement referred below. The Company shall pay
interest and Additional Interest semi-annually on January 1 and July 1 of each
year, commencing January 1, 2004, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment Date"). Interest on
this Note will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be January 1, 2004. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
payments of the principal, Purchase Price and Redemption Price of this Note from
time to time on demand at a rate that is 2% per annum in excess of the rate then
in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any (without regard to any applicable grace periods),
hereon from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company shall pay interest on
the Notes (except defaulted interest) and Additional Interest, if any, to the
Persons who are registered Holders of Notes at the close of business on the
December 15 and June 15 next preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. Any such installment of interest or Additional Interest, if
any, not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such Interest Payment Date, and may be paid
to the registered Holders at the close of business on a special interest payment
date to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered Holders not less than 10 days
prior to such special interest payment date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. The
Notes will be payable as to principal, Redemption Price, Purchase Price,
interest and Additional Interest, if any, at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Additional Interest
may be made by check mailed to the Holders at their addresses set forth in the
register of Holders, provided that payment by wire transfer of immediately
available funds will be required with respect to principal, Redemption Price and
Purchase Price of, and interest and Additional Interest (if any) on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Trustee or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company may act in any such capacity.
4. Indenture. The Company issued $150.0 million in
aggregate principal amount of the Notes under an Indenture dated as of June 26,
2003 (the "Indenture") between the Company, the Guarantors party thereto from
time to time and the Trustee. Additional Notes may be issued from time to time,
subject to
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limitations set forth in the Indenture. 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, as amended (15 U.S.C. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. The Notes are general
obligations of the Company. The Company may issue Additional Notes under the
Indenture.
5. Optional Redemption. The Company may redeem the Notes
at any time at its option, in whole or in part, upon not less than 30 nor more
than 60 days' notice. To redeem the Notes prior to July 1, 2008, the Company
must pay a redemption price equal to the greater of:
(a) 100% of the principal amount of the Notes to be
redeemed; and
(b) the sum of the present values of (1) the redemption
price of the Notes at July 1, 2008 (as set forth below) and (2) the
remaining scheduled payments of interest from the Redemption Date to
July 1, 2008, but excluding accrued and unpaid interest, if any, to the
Redemption Date, discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months), at
the Treasury Rate (determined on the second business day immediately
preceding the Redemption Date) plus 50 basis points,
plus, in either case, accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date).
Beginning on July 1, 2008, the Company may redeem the Notes at
its option, in whole or in part, at the following redemption prices (expressed
as percentages of the principal amount thereof) if redeemed during the
twelve-month period commencing on July 1 of the year set forth below:
YEAR PERCENTAGE
---- ----------
2008.................................................................... 104.750%
2009.................................................................... 103.563%
2010.................................................................... 102.375%
2011.................................................................... 101.188%
2012 and thereafter..................................................... 100.000%
In addition, the Company must pay accrued and unpaid interest
on the Notes redeemed.
6. Special Redemption. At any time, or from time to
time, on or prior to July 1, 2006, the Company may, at its option, use the net
cash proceeds of one or more public or private offering of Qualified Capital
Stock (as defined in the Indenture) of the Company to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 109.500% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the Redemption Date; provided that at least 65% of the
principal amount of Notes issued under the Indenture remains outstanding
immediately after any such redemption and the Company makes such redemption not
more than 90 days after the consummation of any such Equity Offering.
7. Mandatory Redemption. Except as set forth in
Paragraph 9 below with respect to repurchases of Notes in certain events, the
Company shall not be required to make mandatory redemption or repurchase
payments with respect to the Notes.
8. Selection and Notice of Redemption. Subject to the
provisions of the Indenture, a notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000
A-3
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 thereof called for redemption.
If less than all of the Notes are to be redeemed, the Trustee
shall select the Notes or portions thereof to be redeemed (a) in compliance with
the requirements of the national securities exchange, if any, on which the Notes
are listed; or (b) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee shall
deem fair and appropriate.
9. Repurchase at Option of Holder.
(a) Change of Control Offer. Upon the occurrence of a
Change of Control (unless the Company has exercised its right to redeem the
Notes as described in paragraph 5 above and in the Indenture), the Company shall
be required to make an offer (a "Change of Control Offer") to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of each Holder's
Notes at a Purchase Price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Additional Interest, if any,
to the date of repurchase, in accordance with the procedures set forth in the
Indenture. Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
(b) Net Proceeds Offer. If on the 366th day after an
Asset Sale the Company has not applied or invested the Net Cash Proceeds or
non-cash consideration received by the Company or any Restricted Subsidiary, as
the case may be, in connection with any Asset Sale that is converted into or
sold or otherwise disposed of for cash (as described in Section 4.10 of the
Indenture) relating to such Asset Sale as set forth in clauses (3)(a) and (3)(b)
of paragraph (a) of Section 4.10 of the Indenture (each, a "Net Proceeds Offer
Trigger Date"), such aggregate amount of Net Cash Proceeds which has not been
applied or invested on or before such Net Proceeds Offer Trigger Date as
permitted in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10 of the
Indenture (each, a "Net Proceeds Offer Amount") shall be applied by the Company
to make an offer to purchase (the "Net Proceeds Offer") pursuant to Sections
3.10 and 4.10 of the Indenture to all Holders and, to the extent required by the
terms of any other debt that is pari passu with the Notes ("Pari Passu Debt"),
to all holders of such Pari Passu Debt on a date (the "Net Proceeds Offer
Payment Date") not less than 30 nor more than 60 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders (and holders of any Pari Passu
Debt) pro rata, the maximum amount of Notes and such other Pari Passu Debt equal
to the Net Proceeds Offer Amount with respect to the Notes at a price equal to
100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased,
plus accrued and unpaid interest thereon, if any, to the Purchase Date.
Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 30 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Notes in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes
will be purchased pro rata based on the aggregate amounts of Notes and Pari
Passu Debt of the Company properly tendered (and the Trustee shall select the
tendered Notes of tendering Holders pro rata based on the amount of Notes and
other pari passu Indebtedness of the Company properly tendered). A Net Proceeds
Offer shall remain open for a period of 20 Business Days or such longer period
as may be required by law.
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 the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unre-
A-4
deemed portion of any Note being redeemed in part. Also, it need not exchange or
register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
11. Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding 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. Without the consent
of any Holder of a Note, the Indenture and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for the
assumption of the Company's obligations to Holders of the Notes in case of a
merger or consolidation or sale of all or substantially all of the Company's
assets pursuant to Article V of the Indenture, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the Trust Indenture Act.
13. Defaults and Remedies. (i) the failure to pay
interest on any Notes when the same becomes due and payable and the default
continues for a period of 30 days; (ii) the failure to pay the principal on any
Notes, when such principal becomes due and payable, at maturity, upon redemption
or otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer); (iii) a default
in the observance or performance of any other covenant or agreement contained in
the Indenture which default continues for a period of 30 days after the Company
receives written notice specifying the default (and demanding that such default
be remedied) from the Trustee or the Holders of at least 25% of the outstanding
principal amount of the Notes (except in the case of a default under Section 5.1
of the Indenture, which will constitute an Event of Default with such notice
requirement but without such passage of time requirement); (iv) the failure to
pay at final maturity (giving effect to any applicable grace periods and any
extensions thereof) the stated principal amount of any Indebtedness of the
Company or any Restricted Subsidiary of the Company, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is not
rescinded, annulled or otherwise cured within 20 days of receipt by the Company
or such Restricted Subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
final stated maturity or which has been accelerated (in each case with respect
to which the 20-day period described above has elapsed), aggregates $7.5 million
or more at any time; (v) one or more judgments in an aggregate amount in excess
of $7.5 million shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become final
and non-appealable; (vi) certain events of bankruptcy affecting the Company or
any of its Significant Subsidiaries; or (vii) any Guarantee of a Significant
Subsidiary ceases to be in full force and effect or is declared to be null and
void and unenforceable or is found to be invalid or any Guarantor that is a
Significant Subsidiary denies its liability under its Guarantee (other than by
reason of release of a Guarantor in accordance with the terms of the Indenture).
14. Trustee Dealings with Company. Subject to certain
limitations, the Trustee under the Indenture, in its individual or any other
capacity, may become owner or pledgee of Notes and may otherwise deal with the
Company or its Affiliates as if it were not Trustee.
15. No Recourse Against Others. No past, present or
future director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
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16. Authentication. This Note shall not be valid until
authenticated by the signature of the Trustee or an authenticating agent.
17. 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).
18. Discharge Prior to Maturity. If the Company deposits
with the Trustee or Paying Agent cash or U.S. Government Securities sufficient
to pay the principal or Redemption Price of, and interest and Additional
Interest, if any, on, the Notes to maturity or a specified Redemption Date and
satisfies certain conditions specified in the Indenture, the Company will be
discharged from the Indenture, except for certain Sections thereof.
19. Governing Law. The validity and interpretation of the
Indenture, the Guarantees, if any, and this Note shall be governed by and
construed in accordance with the laws of the state of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
Each party hereto agrees to submit to the jurisdiction of any New York state
court sitting in the Borough of Manhattan in the City of New York or any federal
court sitting in the Borough of Manhattan in the City of New York in respect of
any suit, action or proceeding arising out of or relating to the Indenture, the
Guarantees, if any, and the Notes, and irrevocably accepts for itself and in
respect of its property, generally and unconditionally, jurisdiction of the
aforesaid courts in respect of such suit or action or proceeding arising out of
or relating to the Indenture, the Notes and the Guarantees. Each of the Trustee,
the Company and any Guarantor irrevocably waives, to the fullest extent that it
may effectively do so under applicable law, trial by jury and any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
20. 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 the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the correctness or accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption or
repurchase and reliance may be placed only on the other identification numbers
placed thereon.
21. Registration Rights. Pursuant to a registration
rights agreement, the Company will be obligated upon the occurrence of certain
events to consummate an exchange offer pursuant to which the Holder of this Note
shall have the right to exchange this Series A Note for the Company's 9 1/2%
Senior Notes due 2013, Series B, which have been registered under the Securities
Act, in like principal amount and having terms identical in all material
respects as the Series A Notes. The Holders shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of such registration rights agreement.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to:
Mobile Mini Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
A-6
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_________________________________________________________
agent 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 face of
this Note)
Signature Guarantee: _________________________________________
(Participant in recognized signature
guarantee medallion program)
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Note
purchased by the Company pursuant to Section 4.10 ("Net Proceeds Offer") or
Section 4.15 ("Change of Control Offer") of the Indenture, check the applicable
boxes
[ ] Net Proceeds Offer: [ ] Change of Control Offer:
in whole [ ] in whole [ ]
in part [ ] in part [ ]
Amount to be Amount to be
purchased: $___________ purchased: $___________
Dated: __________________ Signature: ___________________________
(Sign exactly as your name
appears on the other side
of this Note)
Signature Guarantee: ___________________________________________________________
(Participant in recognized signature guarantee medallion
program)
Social Security Number or
Taxpayer Identification Number: ________________________________________________
A-8
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for
Certificated Notes or a part of another Global Note have been made:
PRINCIPAL AMOUNT OF
THIS GLOBAL NOTE
AMOUNT OF DECREASE AMOUNT OF INCREASE FOLLOWING SUCH SIGNATURE OF
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT DECREASE (OR AUTHORIZED OFFICER
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) OF TRUSTEE
---------------- ------------------- ------------------- ------------------- ------------------
A-9
EXHIBIT B
FORM OF SERIES B NOTE
(Face of Note)
MOBILE MINI INC.
9 1/2% SENIOR NOTE DUE 2013
[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 OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](2)
------------------
(2) To be included only if the Note is issued in global form.
A-1
MOBILE MINI INC.
9 1/2% SENIOR NOTE DUE 2013
CUSIP No. 002U6070R AA 7
No. $___________________________
Interest Payment Dates: January 1 and July 1, commencing January 1, 2004
Record Dates: December 15 and June 15
MOBILE MINI INC., a Delaware corporation (the "Company," which
term includes any successor corporation under the indenture hereinafter referred
to ), for value received, promises to pay to CEDE & CO., or registered assigns,
the principal sum of $150,000,000 on July 1, 2013.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefits under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
Dated:
MOBILE MINI INC.
By: ____________________________________
Name:
Title:
Attested to as of the date hereof:
By: ____________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Trustee
By: ______________________________
Authorized Signatory
A-2
(Back of Note)
9 1/2% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at the rate of 9 1/2% per annum from the date of
original issuance until maturity and shall pay the Additional Interest pursuant
to the registration rights agreement referred below. The Company shall pay
interest and Additional Interest semi-annually on January 1 and July 1 of each
year, commencing January 1, 2004, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment Date"). Interest on
this Note will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be January 1, 2004. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
payments of the principal, Purchase Price and Redemption Price of this Note from
time to time on demand at a rate that is 2% per annum in excess of the rate then
in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any (without regard to any applicable grace periods),
hereon from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company shall pay interest on
the Notes (except defaulted interest) and Additional Interest, if any, to the
Persons who are registered Holders of Notes at the close of business on the
December 15 and June 15 next preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. Any such installment of interest or Additional Interest, if
any, not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such Interest Payment Date, and may be paid
to the registered Holders at the close of business on a special interest payment
date to be fixed by the Trustee for the payment of such defaulted interest,
notice whereof shall be given to the registered Holders not less than 10 days
prior to such special interest payment date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. The
Notes will be payable as to principal, Redemption Price, Purchase Price,
interest and Additional Interest, if any, at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Additional Interest
may be made by check mailed to the Holders at their addresses set forth in the
register of Holders, provided that payment by wire transfer of immediately
available funds will be required with respect to principal, Redemption Price and
Purchase Price of, and interest and Additional Interest (if any) on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Trustee or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, ▇▇▇▇▇ Fargo
Bank Minnesota, N.A., the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company may act in any such capacity.
4. Indenture. The Company issued $150.0 million in
aggregate principal amount of the Notes under an Indenture dated as of June 26,
2003 (the "Indenture") between the Company, the Guarantors party thereto from
time to time and the Trustee. Additional Notes may be issued from time to time,
subject to
B-1
limitations set forth in the Indenture. 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, as amended (15 U.S.C. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. The Notes are general
obligations of the Company. The Company may issue Additional Notes under the
Indenture.
5. Optional Redemption. The Company may redeem the Notes
at any time at its option, in whole or in part, upon not less than 30 nor more
than 60 days' notice. To redeem the Notes prior to July 1, 2008, the Company
must pay a redemption price equal to the greater of:
(a) 100% of the principal amount of the Notes to be
redeemed; and
(b) the sum of the present values of (1) the redemption
price of the Notes at July 1, 2008 (as set forth below) and (2) the
remaining scheduled payments of interest from the Redemption Date to
July 1, 2008, but excluding accrued and unpaid interest, if any, to the
Redemption Date, discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months), at
the Treasury Rate (determined on the second business day immediately
preceding the Redemption Date) plus 50 basis points,
plus, in either case, accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date).
Beginning on July 1, 2008, the Company may redeem the Notes at
its option, in whole or in part, at the following redemption prices (expressed
as percentages of the principal amount thereof) if redeemed during the
twelve-month period commencing on July 1 of the year set forth below:
YEAR PERCENTAGE
---- ----------
2008....................................................... 104.750%
2009....................................................... 103.563%
2010....................................................... 102.375%
2011....................................................... 101.188%
2012 and thereafter........................................ 100.000%
In addition, the Company must pay accrued and unpaid interest
on the Notes redeemed.
6. Special Redemption. At any time, or from time to
time, on or prior to July 1, 2006, the Company may, at its option, use the net
cash proceeds of one or more public or private offering of Qualified Capital
Stock (as defined in the Indenture) of the Company to redeem up to 35% of the
principal amount of the Notes issued under the Indenture at a redemption price
of 109.500% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the Redemption Date; provided that at least 65% of the
principal amount of Notes issued under the Indenture remains outstanding
immediately after any such redemption and the Company makes such redemption not
more than 90 days after the consummation of any such Equity Offering.
7. Mandatory Redemption. Except as set forth in
Paragraph 9 below with respect to repurchases of Notes in certain events, the
Company shall not be required to make mandatory redemption or repurchase
payments with respect to the Notes.
8. Selection and Notice of Redemption. Subject to the
provisions of the Indenture, a notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000
B-2
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 thereof called for redemption.
If less than all of the Notes are to be redeemed, the Trustee
shall select the Notes or portions thereof to be redeemed (a) in compliance with
the requirements of the national securities exchange, if any, on which the Notes
are listed; or (b) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee shall
deem fair and appropriate.
9. Repurchase at Option of Holder.
(a) Change of Control Offer. Upon the occurrence of a
Change of Control (unless the Company has exercised its right to redeem the
Notes as described in paragraph 5 above and in the Indenture), the Company shall
be required to make an offer (a "Change of Control Offer") to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of each Holder's
Notes at a Purchase Price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Additional Interest, if any,
to the date of repurchase, in accordance with the procedures set forth in the
Indenture. Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
(b) Net Proceeds Offer. If on the 366th day after an
Asset Sale the Company has not applied or invested the Net Cash Proceeds or
non-cash consideration received by the Company or any Restricted Subsidiary, as
the case may be, in connection with any Asset Sale that is converted into or
sold or otherwise disposed of for cash (as described in Section 4.10 of the
Indenture) relating to such Asset Sale as set forth in clauses (3)(a) and (3)(b)
of paragraph (a) of Section 4.10 of the Indenture (each, a "Net Proceeds Offer
Trigger Date"), such aggregate amount of Net Cash Proceeds which has not been
applied or invested on or before such Net Proceeds Offer Trigger Date as
permitted in clauses (3)(a) and (3)(b) of paragraph (a) of Section 4.10 of the
Indenture (each, a "Net Proceeds Offer Amount") shall be applied by the Company
to make an offer to purchase (the "Net Proceeds Offer") pursuant to Sections
3.10 and 4.10 of the Indenture to all Holders and, to the extent required by the
terms of any other debt that is pari passu with the Notes ("Pari Passu Debt"),
to all holders of such Pari Passu Debt on a date (the "Net Proceeds Offer
Payment Date") not less than 30 nor more than 60 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders (and holders of any Pari Passu
Debt) pro rata, the maximum amount of Notes and such other Pari Passu Debt equal
to the Net Proceeds Offer Amount with respect to the Notes at a price equal to
100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased,
plus accrued and unpaid interest thereon, if any, to the Purchase Date.
Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 30 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Notes in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes
will be purchased pro rata based on the aggregate amounts of Notes and Pari
Passu Debt of the Company properly tendered (and the Trustee shall select the
tendered Notes of tendering Holders pro rata based on the amount of Notes and
other pari passu Indebtedness of the Company properly tendered). A Net Proceeds
Offer shall remain open for a period of 20 Business Days or such longer period
as may be required by law.
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 the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unre-
B-3
deemed portion of any Note being redeemed in part. Also, it need not exchange or
register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
11. Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding 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. Without the consent
of any Holder of a Note, the Indenture and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for the
assumption of the Company's obligations to Holders of the Notes in case of a
merger or consolidation or sale of all or substantially all of the Company's
assets pursuant to Article V of the Indenture, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the Trust Indenture Act.
13. Defaults and Remedies. (i) the failure to pay
interest on any Notes when the same becomes due and payable and the default
continues for a period of 30 days; (ii) the failure to pay the principal on any
Notes, when such principal becomes due and payable, at maturity, upon redemption
or otherwise (including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer); (iii) a default
in the observance or performance of any other covenant or agreement contained in
the Indenture which default continues for a period of 30 days after the Company
receives written notice specifying the default (and demanding that such default
be remedied) from the Trustee or the Holders of at least 25% of the outstanding
principal amount of the Notes (except in the case of a default with respect to
the "Merger, Consolidation and Sale of Assets" covenant, which will constitute
an Event of Default with such notice requirement but without such passage of
time requirement); (iv) the failure to pay at final maturity (giving effect to
any applicable grace periods and any extensions thereof) the stated principal
amount of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 20 days of receipt by the Company or such Restricted Subsidiary of notice
of any such acceleration) if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal at final stated maturity or which has
been accelerated (in each case with respect to which the 20-day period described
above has elapsed), aggregates $7.5 million or more at any time; (v) one or more
judgments in an aggregate amount in excess of $7.5 million shall have been
rendered against the Company or any of its Restricted Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days after
such judgment or judgments become final and non-appealable; (vi) certain events
of bankruptcy affecting the Company or any of its Significant Subsidiaries; or
(vii) any Guarantee of a Significant Subsidiary ceases to be in full force and
effect or is declared to be null and void and unenforceable or is found to be
invalid or any Guarantor that is a Significant Subsidiary denies its liability
under its Guarantee (other than by reason of release of a Guarantor in
accordance with the terms of the Indenture).
14. Trustee Dealings with Company. Subject to certain
limitations, the Trustee under the Indenture, in its individual or any other
capacity, may become owner or pledgee of Notes and may otherwise deal with the
Company or its Affiliates as if it were not Trustee.
15. No Recourse Against Others. No past, present or
future director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
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16. Authentication. This Note shall not be valid until
authenticated by the signature of the Trustee or an authenticating agent.
17. 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).
18. Discharge Prior to Maturity. If the Company deposits
with the Trustee or Paying Agent cash or U.S. Government Securities sufficient
to pay the principal or Redemption Price of, and interest and Additional
Interest, if any, on, the Notes to maturity or a specified Redemption Date and
satisfies certain conditions specified in the Indenture, the Company will be
discharged from the Indenture, except for certain Sections thereof.
19. Governing Law. The validity and interpretation of the
Indenture, the Guarantees, if any, and this Note shall be governed by and
construed in accordance with the laws of the state of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
Each party hereto agrees to submit to the jurisdiction of any New York state
court sitting in the Borough of Manhattan in the City of New York or any federal
court sitting in the Borough of Manhattan in the City of New York in respect of
any suit, action or proceeding arising out of or relating to the Indenture, the
Guarantees, if any, and the Notes, and irrevocably accepts for itself and in
respect of its property, generally and unconditionally, jurisdiction of the
aforesaid courts in respect of such suit or action or proceeding arising out of
or relating to the Indenture, the Notes and the Guarantees. Each of the Trustee,
the Company and any Guarantor irrevocably waives, to the fullest extent that it
may effectively do so under applicable law, trial by jury and any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
20. 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 the Trustee may
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the correctness or accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption or
repurchase and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to:
Mobile Mini Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
B-5
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_________________________________________________________
agent 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 face of
this Note)
Signature Guarantee: ___________________________________________
(Participant in recognized signature
guarantee medallion program)
B-6
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Note
purchased by the Company pursuant to Section 4.10 ("Net Proceeds Offer") or
Section 4.15 ("Change of Control Offer") of the Indenture, check the applicable
boxes
[ ] Net Proceeds Offer: [ ] Change of Control Offer:
in whole [ ] in whole [ ]
in part [ ] in part [ ]
Amount to be Amount to be
purchased: $___________ purchased: $___________
Dated: ________________ Signature: ______________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: __________________________________________________________
(Participant in recognized signature guarantee medallion
program)
Social Security Number or
Taxpayer Identification Number: _______________________________________________
B-7
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for
Certificated Notes or a part of another Global Note have been made:
PRINCIPAL AMOUNT OF
THIS GLOBAL NOTE
AMOUNT OF DECREASE AMOUNT OF INCREASE FOLLOWING SUCH SIGNATURE OF
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT DECREASE (OR AUTHORIZED OFFICER
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) OF TRUSTEE
---------------- ------------------- ------------------- ------------------- ------------------
B-1
EXHIBIT C
GUARANTEE
For value received, [each of] the undersigned hereby
unconditionally guarantees to the Holder of this Note the cash payments in
United States dollars of principal of, premium, if any, and interest on this
Note (and including Additional Interest payable thereon) in the amounts and at
the times when due and interest on the overdue principal, premium, if any, and
interest, if any, of this Note, if lawful, and the payment or performance of all
other Obligations of the Company under the Indenture (as defined below) or this
Note, to the Holder of this Note and the Trustee, all in accordance with and
subject to the terms and limitations of this Note, Article X of the Indenture
and this Guarantee. This Guarantee will become effective in accordance with
Article X of the Indenture and its terms shall be evidenced therein. The
validity and enforceability of this Guarantee shall not be affected by the fact
that it is not affixed to any particular Note. Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Indenture dated
as of June 26, 2003, between Mobile Mini Inc., a Delaware corporation, as issuer
(the "Company"), and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (the
"Trustee") (as amended or supplemented, the "Indenture").
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor hereby
agrees to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
[GUARANTOR(S)]
By: ___________________________________
Name:
Title:
C-1
EXHIBIT C(1)
FORM OF REGULATION S CERTIFICATE
___________________,_______
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: Mobile Mini Inc. (the "Company")
9 1/2% Senior Notes due 2013 (the "Notes")
Dear Sirs:
This letter relates to U.S. $ _____________ principal amount
at maturity of Notes represented by a certificate (the "Legended Certificate")
which bears a legend outlining restrictions upon transfer of such Legended
Certificate. Pursuant to Section 2.1 of the Indenture (the "Indenture") dated as
of June 26, 2003 relating to the Notes, we hereby certify that we are (or we
will hold such securities on behalf of) a person outside the United States to
whom the Notes could be transferred in accordance with Rule 904 of Regulation S
promulgated under the U.S. Securities Act of 1933, as amended.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By: ___________________________________
Authorized Signature
C(1)-1
EXHIBIT C(2)
CERTIFICATE TO BE DELIVERED
UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
___________________,_______
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: Mobile Mini Inc. (the "Company")
9 1/2% Senior Notes due 2013 (the "Notes")
Dear Sirs:
This Certificate relates to $ _____________ principal amount
of Notes held in
[ ] book-entry* or [ ] certificated form*
by ___________________________________(the "Transferor").
The Transferor:(*)
[ ] has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Note held by the Depositary a
Note or Notes in certificated, registered form of authorized denominations in an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
[ ] has requested the Trustee by written order 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 as provided in Section 2.6
of such Indenture, the transfer of this Note does not require registration under
the Securities Act (as defined below) because:*
[ ] Such Note is being acquired for the Transferor's own
account, without transfer.
-----------------------
(*) Check applicable box
C(2)-1
[ ] Such Note is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")) in reliance on Rule 144A and accordingly the
undersigned does hereby certify that the Note is being transferred to a person
that the transferor reasonably believes is purchasing the Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion and the Notes have been transferred in a transaction
meeting the requirements of Rule 144A and in accordance with any applicable
securities law of any state of the United States.
[ ] Such Note is being transferred to an "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) in
accordance with Regulation D under the Securities Act.
[ ] Such Note is being transferred pursuant to an exemption
from registration in accordance with Regulation S under the Securities Act.
[ ] Such Note is being transferred in accordance with Rule 144
under the Securities Act, or pursuant to an effective registration statement
under the Securities Act.
[ ] Such Note is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A, 144 or Rule 904 under the Securities Act.
An Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
_________________________________________
[INSERT NAME OF TRANSFEROR]
By: _____________________________________
Name:
Title
Date: _________________
C(2)-2
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
___________________,_______
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: Mobile Mini Inc. (the "Company")
9 1/2% Senior Notes due 2013 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of 9 1/2% Senior
Notes due 2013 (the "Notes") of the Company, we confirm that:
1. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set forth in the
Indenture dated as of June 26, 2003 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
and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered
under the Securities Act or any other applicable securities law, and that the
Notes may not be offered, sold or otherwise transferred except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we should offer,
sell, transfer, pledge, hypothecate or otherwise dispose of any Notes, we will
do so only (A) to the Company or any Subsidiary thereof, (B) inside the United
States to a "qualified institutional buyer" in compliance with Rule 144A under
the Securities Act, (C) inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes to you a
signed letter substantially in the form of this letter, (D) outside the United
States to a foreign person in compliance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available), (F) in accordance with another
exemption from the registration requirements of the Securities Act, or (G)
pursuant to an effective registration statement under the Securities Act, 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 and in the Indenture.
3. We understand that, with respect to any proposed
transfer of any Notes, pursuant to paragraphs 2(B), 2(C), 2(D) and 2(E) above,
we will be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably require to
confirm that the proposed transfer complies with such restrictions and that with
respect to any transfer in accordance with paragraph 2(F) we will be required to
furnish to you and the Company such legal opinions and other information as you
or the Company may reasonably require to confirm that such transfer is being
made pursuant to an ex-
D-1
emption from, or in a transaction not subject to, the registration requirements
of the Securities Act. We further understand that the Notes purchased by us will
bear a legend to such effect. We acknowledge that no representation is made as
to the availability of any Rule 144 exemption from the registration requirements
of the Securities Act.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and 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 acquiring the Notes for investment
purposes and not with a view to, or offer of sale in connection with, any
distribution in violation of the Securities Act or the securities laws of any
state of the United States or any other applicable jurisdiction, and we are each
able to bear the economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for our
own account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
(Name of Transferee)
By: __________________________________
Authorized Signature
D-2
EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
___________________,_______
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Re: Mobile Mini Inc. (the "Company")
9 1/2% Senior Notes due 2013 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $_________ aggregate
principal amount at maturity of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in
the United States;
(2) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States;
(3) no directed selling efforts have been made by us, any
of our affiliates or any person acting on our behalf in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the U.S. Securities Act of 1933;
and
(5) if we are a dealer or a person receiving a selling
concession fee or other remuneration in respect of the Notes, and the
proposed transfer takes place within 40 days of the Issue Date (as
defined in the Indenture), or we are an officer or director of the
Company or an Initial Purchaser (as defined in the Indenture), we
certify that the proposed transfer is being made in accordance with
Rule 904(b) of Regulation S.
E-1
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: __________________________________
Authorized Signature
E-2