EXHIBIT 4.1
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IRON MOUNTAIN INCORPORATED
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SUBORDINATED INDENTURE
Dated as of April 3, ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
as Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE.........................1
Section 1.1. Definitions...................................................1
Section 1.2. Other Definitions.............................................7
Section 1.3. Incorporation by Reference of Trust Indenture Act.............8
Section 1.4. Rules of Construction.........................................8
ARTICLE II. THE SECURITIES....................................................9
Section 2.1. Issuable in Series............................................9
Section 2.2. Establishment of Terms of Series of Securities................9
Section 2.3. Execution and Authentication.................................11
Section 2.4. Registrar and Paying Agent...................................12
Section 2.5. Paying Agent to Hold Money in Trust..........................13
Section 2.6. Securityholder Lists.........................................13
Section 2.7. Transfer and Exchange........................................14
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.............14
Section 2.9. Outstanding Securities.......................................15
Section 2.10. Treasury Securities..........................................15
Section 2.11. Temporary Securities.........................................16
Section 2.12. Cancellation.................................................16
Section 2.13. Defaulted Interest...........................................16
Section 2.14. Record Date..................................................17
Section 2.15. Global Securities............................................17
Section 2.16. CUSIP Numbers................................................18
ARTICLE III. REDEMPTION......................................................18
Section 3.1. Notice to Trustee............................................18
Section 3.2. Selection of Securities to be Redeemed.......................19
Section 3.3. Notice of Redemption.........................................19
Section 3.4. Effect of Notice of Redemption...............................20
Section 3.5. Deposit of Redemption Price..................................20
Section 3.6. Securities Redeemed in Part..................................20
ARTICLE IV. COVENANTS........................................................20
Section 4.1. Payment of Principal and Interest............................21
Section 4.2. SEC Reports..................................................21
Section 4.3. Compliance Certificate.......................................21
Section 4.4. Stay, Extension and Usury Laws...............................21
Section 4.5. Corporate Existence..........................................22
Section 4.6. Taxes........................................................22
Section 4.7. Maintenance of Office or Agency..............................22
ARTICLE V. SUCCESSORS........................................................22
Section 5.1. When Company May Merge, Etc..................................22
Section 5.2. Successor Corporation Substituted............................23
ARTICLE VI. DEFAULTS AND REMEDIES............................................23
Section 6.1. Events of Default............................................23
Section 6.2. Acceleration of Maturity; Rescission and Annulment...........25
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Section 6.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.................................................26
Section 6.4. Trustee May File Proofs of Claim.............................26
Section 6.5. Trustee May Enforce Claims Without Possession
of Securities..............................................27
Section 6.6. Application of Money Collected...............................27
Section 6.7. Limitation on Suits..........................................28
Section 6.8. Unconditional Right of Holders to Receive
Principal and Interest.....................................28
Section 6.9. Restoration of Rights and Remedies...........................28
Section 6.10. Rights and Remedies Cumulative...............................29
Section 6.11. Delay or Omission Not Waiver.................................29
Section 6.12. Control by Holders...........................................29
Section 6.13. Waiver of Past Defaults......................................29
Section 6.14. Undertaking for Costs........................................30
ARTICLE VII. TRUSTEE.........................................................30
Section 7.1. Duties of Trustee............................................30
Section 7.2. Rights of Trustee............................................31
Section 7.3. Individual Rights of Trustee.................................32
Section 7.4. Trustee's Disclaimer.........................................33
Section 7.5. Notice of Defaults...........................................33
Section 7.6. Reports by Trustee to Holders................................33
Section 7.7. Compensation and Indemnity...................................33
Section 7.8. Replacement of Trustee.......................................34
Section 7.9. Successor Trustee by Merger, etc.............................35
Section 7.10. Eligibility; Disqualification................................35
Section 7.11. Preferential Collection of Claims Against Company............36
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................36
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance.................................................36
Section 8.2. Legal Defeasance and Discharge...............................36
Section 8.3. Covenant Defeasance..........................................36
Section 8.4. Conditions to Legal or Covenant Defeasance...................37
Section 8.5. Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous Provisions...........38
Section 8.6. Repayment to Company.........................................39
Section 8.7. Reinstatement................................................39
ARTICLE IX. AMENDMENTS AND WAIVERS...........................................39
Section 9.1. Without Consent of Holders...................................39
Section 9.2. With Consent of Holders......................................40
Section 9.3. Limitations..................................................41
Section 9.4. Compliance with Trust Indenture Act..........................41
Section 9.5. Revocation and Effect of Consents............................41
Section 9.6. Notation on or Exchange of Securities........................42
Section 9.7. Trustee Protected............................................42
ARTICLE X. MISCELLANEOUS.....................................................42
Section 10.1. Trust Indenture Act Controls.................................42
Section 10.2. Notices......................................................42
Section 10.3. Communication by Holders with Other Holders..................43
Section 10.4. Certificate and Opinion as to Conditions Precedent...........44
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Section 10.5. Statements Required in Certificate or Opinion..............44
Section 10.6. Rules by Trustee and Agents................................44
Section 10.7. Legal Holidays.............................................44
Section 10.8. No Personal Liability of Directors, Officers,
Employees and Stockholders...............................45
Section 10.9. Counterparts...............................................45
Section 10.10. Governing Laws.............................................45
Section 10.11. No Adverse Interpretation of Other Agreements..............45
Section 10.12. Successors.................................................45
Section 10.13. Severability...............................................45
Section 10.14. Table of Contents, Headings, Etc...........................45
Section 10.15. Securities in a Foreign Currency or in ECU.................46
Section 10.16. Judgment Currency..........................................46
ARTICLE XI. SINKING FUNDS....................................................47
Section 11.1. Applicability of Article...................................47
Section 11.2. Satisfaction of Sinking Fund Payments with Securities......47
Section 11.3. Redemption of Securities for Sinking Fund..................48
ARTICLE XII. SUBSIDIARY GUARANTEES...........................................48
Section 12.1. Subsidiary Guarantee.......................................48
Section 12.2. Limitation of Guarantor's Liability........................50
ARTICLE XIII. SUBORDINATION..................................................50
Section 13.1. Agreement to Subordinate...................................50
Section 13.2. Liquidation; Dissolution; Bankruptcy.......................51
Section 13.3. Default on Designated Senior Debt..........................51
Section 13.4. Acceleration of Securities.................................52
Section 13.5. When Distribution Must be Paid Over........................52
Section 13.6. Notice By Company..........................................53
Section 13.7. Subrogation................................................53
Section 13.8. Relative Rights............................................53
Section 13.9. Subordination May Not Be Impaired by Company...............53
Section 13.10. Distribution or Notice to Representative...................53
Section 13.11. Rights of Trustee and Paying Agent.........................54
Section 13.12. Authorization to Effect Subordination......................54
Section 13.13. Amendments.................................................54
Section 13.14. Subordination of Subsidiary Guarantees.....................54
Section 13.15. Liquidation; Dissolution; Bankruptcy of a Guarantor........55
Section 13.16. Default on Senior Debt of the Guarantor....................55
Section 13.17. Acceleration of Securities; Duties of Guarantors...........56
Section 13.18. When Distribution from Guarantor Must Be Paid Over.........56
Section 13.19. Notice by a Guarantor......................................57
Section 13.20. Subrogation with Respect to Any Guarantor..................57
Section 13.21. Relative Rights with Respect to Any Guarantor..............57
Section 13.22. Subordination May Not Be Impaired By Any Guarantor.........57
Section 13.23. Distribution or Notice to Representative with
Respect to Any Guarantor.................................58
Section 13.24. Rights of Trustee and Paying Agent with
Respect to Any Guarantor.................................58
Section 13.25. Authorization to Effect Subordination with
Respect to Any Guarantor.................................58
Section 13.26. Amendments with Respect to Any Guarantor...................58
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IRON MOUNTAIN INCORPORATED
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of April 3, 2001
ss.310(a)(1) ............................................. 7.10
(a)(2) .............................................. 7.10
(a)(3) .............................................. Not Applicable
(a)(4) .............................................. Not Applicable
(a)(5) .............................................. 7.10
(b) .............................................. 7.10
ss. 310(c) .............................................. Not Applicable
ss. 311(a) .............................................. 7.11
(b) .............................................. 7.11
(c) .............................................. Not Applicable
ss. 312(a) .............................................. 2.6
(b) .............................................. 10.3
(c) .............................................. 10.3
ss. 313(a) .............................................. 7.6
(b)(1) .............................................. 7.6
(b)(2) .............................................. 7.6
(c)(1) .............................................. 7.6
(c)(2) .............................................. 7.6
(c)(3) .............................................. 7.6
(d) .............................................. 7.6
ss. 314(a) .............................................. 4.2, 4.3, 10.5
(b) .............................................. Not Applicable
(c)(1) .............................................. 10.4
(c)(2) .............................................. 10.4
(c)(3) .............................................. Not Applicable
(d) .............................................. Not Applicable
(e) .............................................. 10.5
(f) .............................................. Not Applicable
ss. 315(a) .............................................. 7.1(b)
(b) .............................................. 7.5
(c) .............................................. 7.1
(d) .............................................. 7.1
(e) .............................................. 6.14
ss. 316(a) .............................................. 2.10
(a)(1)(A) .............................................. 6.12
(a)(1)(B) .............................................. 6.13
(b) .............................................. 6.8
ss. 316(c) .............................................. 2.14
ss.317(a)(1) ............................................. 6.3
(a)(2) .............................................. 6.4
(b) .............................................. 2.5
ss. 318(a) .............................................. 10.1
(b) .............................................. Not Applicable
(c) .............................................. Not Applicable
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
iv
Subordinated Indenture dated as of April 3, 2001 among Iron Mountain
Incorporated, a Pennsylvania corporation ("Company"), the guarantor signatories
hereto and The Bank of New York, a New York banking corporation, as Trustee
("Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Securities issued under this
Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. DEFINITIONS.
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified therein
and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given by the Trustee shall constitute a sufficient publication of such
notice.
"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the Holder
thereof.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate and delivered to the
Trustee.
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday,
Sunday or a legal holiday in The City of New York or at a place of payment on
which banking institutions are authorized or required by law, regulation or
executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be so required to be capitalized on the balance sheet in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock, including, without
limitation, with respect to partnerships, partnership interests (whether general
or limited) and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, such partnership.
"Company" means the party named as such above until a successor replaces it
and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company by
two Officers.
"Corporate Trust Office" means the principal office of the Trustee at which
at any time its corporate trust business shall be administered, which office at
the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West, New York, New
York 10286, Attention: Corporate Trust Administration, or such other address as
the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trsutee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Credit Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the lenders party to the Credit Agreement, and The
Chase Manhattan Bank Canada, in its capacity as Canadian administrative agent
for the lenders party to the Credit Agreement, or any successor or successors
party thereto.
"Credit Agreement" means that certain Fourth Amended and Restated Credit
Agreement dated as of August 14, 2000, as amended, among the Company, Iron
Mountain Canada Corporation, the lenders party thereto and the Credit Agent, as
further amended, restated, supplemented, modified, renewed, refunded, increased,
extended, replaced or refinanced from time to time.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Depository" means, with respect to the Securities of any Series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depository for such Series by the Company, which Depository
shall be a clearing agency registered under the Exchange Act; and if at any time
there is more than one such Person, "Depository" as used with respect to the
Securities of any Series shall mean the Depository with respect to the
Securities of such Series.
2
"Designated Senior Debt" means (a) Senior Bank Debt and (b) other Senior
Debt the principal amount of which is $50.0 million or more at the date of
designation by the Company in a written instrument delivered to the Trustee;
provided that Senior Debt designated as Designated Senior Debt pursuant to
clause (b) shall cease to be Designated Senior Debt at any time that the
aggregate principal amount thereof outstanding is $10.0 million or less.
"Discount Security" means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.2.
"Disqualified Stock" means any Capital Stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, for cash or other property (other than Capital Stock that is not
Disqualified Stock) pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the Securityholder thereof, in whole or in part, in
each case on or prior to the stated maturity of the Securities.
"DOLLARS" and "$" mean lawful money of the United States of America.
"ECU" means the European Currency Unit as determined by the Commission of
the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Senior Subordinated Securities" means (i) the 11-1/8% Senior
Subordinated Notes due 2006 of the Company in an aggregate original principal
amount of US$200,000,000 issued pursuant to the Senior Subordinated Notes
Indenture, dated as of July 15, 1996, between the Company and United States
Trust Company of New York, as trustee, (ii) the 10-1/8% Senior Subordinated
Notes due 2006 of the Company in the aggregate principal amount of
US$165,000,000 issued pursuant to the Senior Subordinated Notes Indenture, dated
as of October 1, 1996 between the Company and First Bank National Association,
as trustee, (iii) the 9-1/8% Senior Subordinated Notes due 2007 of the Company
in an aggregate principal amount of US$120,000,000 issued pursuant to the Senior
Subordinated Notes Indenture, dated as of July 7, 1997 between the Company and
The Bank of New York, as trustee, (iv) the 8-3/4% Senior Subordinated Notes due
2009 of the Company in an aggregate original principal amount of US$250,000,000
issued pursuant to the Senior Subordinated Notes Indenture dated as of October
24, 1997 between the Company and The Bank of New York, as trustee, (v) the
8-1/4% Senior Subordinated Notes due 2011 of the Company in the aggregate
original principal amount of US$150,000,000 issued pursuant to the Senior
Subordinated Notes Indenture dated as of April 26, 1999 between the Company and
the Bank of New York, as trustee, and (vi) the 8 1/8% Senior Notes due 2008 of
Iron Mountain Canada Corporation, the Company's wholly owned Subsidiary, in the
aggregate original principal amount of $135,000,000 issued pursuant to the
Senior Notes Indenture dated as of April 7, 1998, by and among Iron Mountain
Canada Corporation, as issuer, the Company and The Bank of New York, as trustee
(the 8 1/8% Senior Notes have been guaranteed by the Company and certain of its
Subsidiaries (including, without limitation, the Guarantors) on a senior
subordinated basis).
3
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of the United States of America.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Global Security" or "Global Securities" means a Security or Securities, as
the case may be, in the form established pursuant to Section 2.2 evidencing all
or part of a Series of Securities, issued to the Depository for such Series or
its nominee, and registered in the name of such Depository or nominee.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States of America is
pledged.
"Guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
obligation to reimburse amounts drawn down under letters of credit securing such
obligations.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (a) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (b) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered or the holder of a Bearer Security.
"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, and
whether or not contingent, (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or services,
(e) every Capital Lease Obligation and every obligation of such Person in
respect of Sale and Leaseback Transactions that would be required to be
capitalized on the balance sheet in accordance with GAAP, (f) all Disqualified
Stock of such Person valued at the greater of its voluntary or involuntary
maximum fixed repurchase price, plus accrued and unpaid dividends (unless
included in such maximum
4
repurchase price), (g) all obligations of such Person under or with respect to
Hedging Obligations which would be required to be reflected on the balance sheet
as a liability of such Person in accordance with GAAP and (h) every obligation
of the type referred to in clauses (a) through (g) of another Person and
dividends of another Person the payment of which, in either case, such Person
has guaranteed. For purposes of this definition, the "maximum fixed repurchase
price" of any Disqualified Stock that does not have a fixed repurchase price
will be calculated in accordance with the terms of such Disqualified Stock as if
such Disqualified Stock were repurchased on any date on which Indebtedness is
required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified Stock, such
fair market value will be determined in good faith by the board of directors of
the issuer of such Disqualified Stock. Notwithstanding the foregoing, trade
accounts payable and accrued liabilities arising in the ordinary course of
business and any liability for federal, state or local taxes or other taxes owed
by such Person will not be considered Indebtedness for purposes of this
definition. The amount outstanding at any time of any Indebtedness issued with
original issue discount is the aggregate principal amount at maturity of such
Indebtedness, less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time, as determined in accordance with
GAAP.
"Indenture" means this Indenture as amended and supplemented from time to
time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder and any related supplemental indenture.
"interest" with respect to any Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity.
"Maturity," when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, notice of option to elect repayment or otherwise.
"Obligations" means any principal, interest (including post-petition
interest, whether or not allowed as a claim in any proceeding), penalties, fees,
costs, expenses, indemnifications, reimbursements, damages and other liabilities
payable under or in connection with any Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, any
Vice-President, the Treasurer, the Controller, the Secretary, any Assistant
Treasurer or any Assistant Secretary of any Person.
"Officers' Certificate" means a certificate signed, unless otherwise
specified, by any two of the Chairman of the Board, a Vice Chairman of the
Board, the President, the Chief Financial Officer, the Controller or an
Executive Vice President of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
5
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or any government or any agency or political
subdivision thereof.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on, and any Additional Amounts in respect of,
the Security.
"Representative" means, for purposes of Article 13, the Credit Agent or
other agent, trustee or representative for any Senior Debt of the Company or a
Guarantor, as the case may be.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Sale and Leaseback Transaction" means any transaction or series of related
transactions pursuant to which a Person sells or transfers any property or asset
in connection with the leasing, or the resale against installment payments, of
such property or asset to the seller or transferor.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means the debentures, notes or other instruments of
Indebtedness of the Company of any Series authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Bank Debt" means all Obligations outstanding under or in connection
with the Credit Agreement (including Guarantees of such Obligations by
Subsidiaries of the Company).
"Senior Debt" means (a) the Senior Bank Debt and (b) any other Indebtedness
permitted to be incurred by the Company, as the case may be, under the terms of
this Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Securities or subordinated to Senior Debt on terms substantially
similar to those of the Securities. Notwithstanding anything to the contrary in
the foregoing, Senior Debt shall not include (i) any liability for federal,
state, local or other taxes owed or owing by the Company, (ii) any Indebtedness
of the Company to any of its Subsidiaries or other Affiliates, (iii) any trade
payables or (iv) any Indebtedness that is incurred in violation of this
Indenture provided that such Indebtedness shall be deemed not to have been
incurred in violation of the Indenture for purposes of this clause (iv) if, in
the case of any obligations under the Credit Agreement, the holders of such
obligations or their agent or
6
representative shall have received a representation from the Company to the
effect that the incurrence of such Indebtedness does not violate the provisions
of this Indenture.
"Series" or "Series of Securities" means each series of debentures, notes
or other debt instruments of the Company created pursuant to Sections 2.1 and
2.2 hereof.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such regulation is in effect on the date
hereof.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
"Subsidiary Guarantee" means a Guarantee of a Guarantor pursuant to Article
XII hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date of this Indenture; PROVIDED, HOWEVER,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.
Section 1.2. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
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"Bankruptcy Law" 6.1
"Benefited Party" 12.1
"Covenant Defeasance" 8.2
"Custodian" 6.1
"Event of Default" 6.1
"Guarantor" 12.1
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"Journal" 10.15
"Judgment Currency" 10.16
"Legal Defeasance" 8.2
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"Non-Monetary Default 13.3
"Notice of Default" 6.1
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Payment Blockage Notice" 13.3
"Payment Default" 13.3
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"Successor Person" 5.1
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:
"Commission" means the SEC.
"indenture securities" means the Securities and the Subsidiary Guarantees,
if any.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the Guarantors, if
any, and any successor obligor upon the Securities or any Subsidiary
Guarantee, as the case may be.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein are used herein as so defined.
Section 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
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(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;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act or the
Exchange Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to time.
ARTICLE II.
THE SECURITIES
Section 2.1. ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more Series. All Securities of a Series shall be identical except as may be
set forth in a Board Resolution, a supplemental indenture or an Officers'
Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ between
Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2.1 and either as to such Securities within the Series or as to the
Series generally in the case of Subsections 2.2.2 through 2.2.21) by a Board
Resolution, a supplemental indenture or an Officers' Certificate pursuant to
authority granted under a Board Resolution:
2.2.1. the title of the Series (which shall distinguish the Securities of
that particular Series from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
2.2.3. any limit upon the aggregate principal amount of the Securities of
the Series which may be authenticated and delivered under this Indenture (except
for Securities
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authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8,
2.11, 3.6 or 9.6, or any applicable provision of a supplemental indenture);
2.2.4. the date or dates on which the principal of the Securities of the
Series is payable;
2.2.5. the rate or rates (which may be fixed or variable) per annum or, if
applicable, the method used to determine such rate or rates (including, but not
limited to, any commodity, commodity index, stock exchange index or financial
index) at which the Securities of the Series shall bear interest, if any, the
date or dates from which such interest, if any, shall accrue, the date or dates
on which such interest, if any, shall commence and be payable and any regular
record date for the interest payable on any interest payment date;
2.2.6. the place or places where the principal of and interest, if any, on
the Securities of the Series shall be payable, or the method of such payment, if
by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the Series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
2.2.9. the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of the
Holders thereof and other detailed terms and provisions of such repurchase
obligations;
2.2.10. if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be
issuable;
2.2.11. the forms of the Securities of the Series in bearer or fully
registered form (and, if in fully registered form, whether the Securities will
be issuable as Global Securities);
2.2.12. if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities of the Series, which
may be Dollars or any Foreign Currency, including, but not limited to, the ECU,
and if such currency of denomination is a composite currency other than the ECU,
the agency or organization, if any, responsible for overseeing such composite
currency;
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2.2.14. the designation of the currency, currencies or currency units in
which payment of the principal of and interest, if any, on the Securities of the
Series will be made;
2.2.15. if payments of principal of or interest, if any, on the Securities
of the Series are to be made in one or more currencies or currency units other
than that or those in which such Securities are denominated, the manner in which
the exchange rate with respect to such payments will be determined;
2.2.16. the manner in which the amounts of payment of principal of or
interest, if any, on the Securities of the Series will be determined, if such
amounts may be determined by reference to an index based on a currency or
currencies or by reference to a commodity, commodity index, stock exchange index
or financial index;
2.2.17. the provisions, if any, relating to any security provided for the
Securities of the Series;
2.2.18. any addition to or change in the Events of Default which applies to
any Securities of the Series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 6.2;
2.2.19. any addition to or change in the covenants set forth in Articles IV
or V which applies to Securities of the Series;
2.2.20. any other terms of the Securities of the Series which may modify
or delete any provision of this Indenture insofar as it applies to such
Series); and
2.2.21. any depositories, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein.
All Securities of any one Series need not be issued at the same time and
may be issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to the Board Resolution, supplemental indenture or
Officers' Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers' Certificate.
Section 2.3. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. An Officer of each Guarantor shall sign the Subsidiary
Guarantee for the Guarantor by manual or facsimile signature.
If an Officer whose signature is on a Security or Subsidiary Guarantee no
longer holds that office at the time the Security is authenticated, the Security
or Subsidiary Guarantee shall nevertheless be valid.
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A Security shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent. Such signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt
by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding at
any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have
received and (subject to Section 7.2) shall be fully protected in relying on:
(a) the Board Resolution, supplemental indenture hereto or Officers' Certificate
establishing the form of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series or of Securities
within that Series, (b) an Officers' Certificate complying with Section 10.4,
and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the Trustee in
good faith by its board of directors or trustees, executive committee or a trust
committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then
outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities 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.
Section 2.4. REGISTRAR AND PAYING AGENT.
The Company shall maintain, with respect to each Series of Securities, at
the place or places specified with respect to such Series pursuant to Section
2.2, an office or agency where Securities of such Series may be presented or
surrendered for payment ("Paying Agent"), where Securities of such Series may be
surrendered for registration of transfer or exchange ("Registrar") and where
notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be served ("Service Agent"). The Registrar shall
keep a register with respect to each Series of Securities and to their transfer
and exchange. The Company will give prompt written notice to the Trustee of the
name and address, and any
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change in the name or address, of each Registrar, Paying Agent or Service Agent.
If at any time the Company shall fail to maintain any such required Registrar,
Paying Agent or Service Agent or shall fail to furnish the Trustee with the name
and address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents 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 a Registrar, Paying Agent and Service Agent in each place so specified
pursuant to Section 2.2 for Securities of any Series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the name or address of any such co-registrar,
additional paying agent or additional service agent. The term "Registrar"
includes any co-registrar; the term "Paying Agent" includes any additional
paying agent; and the term "Service Agent" includes any additional service
agent. The Company or any Guarantor may act as Paying Agent, Registrar or
Service Agent. The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall be subject to any
obligations imposed by the provisions of the TIA. The agreement shall implement
the provisions of this Indenture that relate to such Agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent
and Service Agent for each Series unless another Registrar, Paying Agent or
Service Agent, as the case may be, is appointed prior to the time Securities of
that Series are first issued.
Section 2.5. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or premium, if any, or interest
on the Series of Securities, and will notify the Trustee of any default by the
Company or the Guarantors in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) shall have no further liability for
the money delivered to the Trustee. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of Securityholders of any Series of Securities, subject to Article XIII
hereof, all money held by it as Paying Agent.
Section 2.6. SECURITYHOLDER 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
Securityholders of each Series of Securities and shall otherwise comply with TIA
ss. 312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least ten days before each interest payment date and at
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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 Securityholders of each Series of Securities.
Section 2.7. TRANSFER AND EXCHANGE.
Where Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to
Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business fifteen days immediately preceding the
mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
Section 2.8. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same Series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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Every new Security of any Series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest on a Global Security effected by
the Trustee in accordance with the provisions hereof and those described in this
Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on them ceases to
accrue.
A Security does not cease to be outstanding because the Company, a
Guarantor or an Affiliate of the Company or a Guarantor holds the Security.
In determining whether the Holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of a Discount Security
that shall be deemed to be outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.2.
Section 2.10. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a Series owned by the
Company or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded.
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Notwithstanding the foregoing, Securities of a Series that are to be acquired by
the Company, any Guarantor, any Subsidiary of the Company or any Guarantor or an
Affiliate of the Company or any Guarantor pursuant to an exchange offer, tender
offer or other agreement shall not be deemed to be owned by the Company, such
Guarantor, a Subsidiary of the Company or such Guarantor or an Affiliate of the
Company or such Guarantor until legal title to such Securities passes to the
Company, such Guarantor, such Subsidiary or such Affiliate, as the case may be.
Section 2.11. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon a Company Order.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this Indenture as the
definitive Securities.
Section 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall dispose of such
canceled Securities (subject to the record retention requirement of the Exchange
Act) in accordance with the Trustee's customary practice. The Company may not
issue new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation.
Section 2.13. DEFAULTED INTEREST.
If the Company and the Guarantors default in a payment of interest on
Series of Securities, the Company or any such Guarantor (to the extent of its
obligations under its Subsidiary Guarantee) shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Securityholders of the Series on a subsequent
special record date, which date shall be at the earliest practicable date but in
all events at least five Business Days prior to the payment date, in each case
at the rate provided for with respect to the applicable Securities. The Company
shall fix or cause to be fixed each such special record date and payment date,
and shall, promptly thereafter, notify the Trustee of any such date. At least 15
days before the special record date, the Company (or the Trustee, in the name of
and at the expense of the Company) shall mail to Securityholders of the Series a
notice that states the special record date, the related payment date and the
amount of such interest to be paid. The Company and the Guarantors may pay
defaulted interest in any other lawful manner.
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Section 2.14. RECORD DATE.
The record date for purposes of determining the identity of Securityholders
of the Series entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA ss. 316(c).
Section 2.15. GLOBAL SECURITIES.
2.15.1. TERMS OF SECURITIES. A Board Resolution, a supplemental indenture
hereto or an Officers' Certificate shall establish whether the Securities of a
Series shall be issued in whole or in part in the form of one or more Global
Securities and the Depository for such Global Security or Securities.
2.15.2. TRANSFER AND EXCHANGE. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any
Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture
for Securities registered in the names of Holders other than the Depository for
such Security or its nominee only if (i) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depository within 90 days of such event, (ii) the Company
executes and delivers to the Trustee an Officers' Certificate to the effect that
such Global Security shall be so exchangeable or (iii) an Event of Default with
respect to the Securities represented by such Global Security shall have
happened and be continuing. Any Global Security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for Securities registered in such
names as the Depository shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.15.2, a Global Security may not be
transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.
2.15.3. LEGEND. Any Global Security issued hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depository or a
nominee of the Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee only
in the limited circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such a successor Depository."
2.15.4. ACTS OF HOLDERS. The Depository, as a Holder, may appoint agents
and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
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2.15.5. PAYMENTS. Notwithstanding the other provisions of this Indenture,
unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the
Holder thereof.
2.15.6. CONSENTS, DECLARATION AND DIRECTIONS. Except as provided in Section
2.15.5, the Company, the Trustee and any Agent shall treat a Person as the
Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement of
the Depository with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.
Section 2.16. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP number.
ARTICLE III.
REDEMPTION
Section 3.1. NOTICE TO TRUSTEE.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity
thereof at such time and on such terms as provided for in such Securities. If a
Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of Series of Securities to be
redeemed. The Company shall give the notice at least 45 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee),
which notice shall be in the form of an Officers' Certificate setting forth (i)
the Section of this Indenture pursuant to which the redemption shall occur, (ii)
the redemption date, (iii) the principal amount of Securities of a Series to be
redeemed and (iv) the redemption price.
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Section 3.2. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of any Series of Securities are to be redeemed at any
time, the Trustee shall select the Securities of the Series to be redeemed among
the applicable Holders of such Series in compliance with the requirements of the
principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not so listed, on a PRO RATA basis, by lot or
in accordance with any other method the Trustee considers fair and appropriate,
PROVIDED that no Securities of $1,000 or less shall be redeemed in part. In the
event of partial redemption by lot, the particular Securities 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
Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
of the Series selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed. Securities
and portions of Securities selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Securities of a Holder are to be
redeemed, the entire outstanding amount of Securities held by such Holder, even
if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Securities of a
Series called for redemption also apply to portions of Securities of that Series
called for redemption.
Section 3.3. NOTICE OF REDEMPTION.
Unless otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officers' Certificate, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail or cause
to be mailed a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed and if any Bearer Securities are outstanding,
publish on one occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be redeemed
(including the CUSIP numbers, if any) and shall state:
(a) the redemption date;
(b) the redemption price (including accrued interest to, but excluding, the
redemption date);
(c) if any Security of the Series called for redemption is being
redeemed in part, the portion of the principal amount of such Security
to be redeemed and that, after the redemption date upon surrender of
such Security, a new Security or Securities in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the
original Security;
(d) the name and address of the Paying Agent;
(e) that Securities of the Series called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
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(f) that, unless the Company defaults in the making of such redemption
payment, interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date; and
(g) any other information as may be required by the terms of the particular
Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
Section 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published as provided in Section
3.3, Securities of a Series called for redemption become due and payable on the
redemption date and at the redemption price. A notice of redemption may not be
conditional. On and after the redemption date, unless the Company defaults in
the payment of the redemption price, interest will cease to accrue on the
Securities of a Series called for called for redemption and all rights of
Holders with respect to such Securities will terminate except for the right to
receive payment of the redemption price upon surrender for redemption. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price plus accrued interest to but excluding the redemption date.
Section 3.5. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the Paying
Agent money sufficient to pay the redemption price of and accrued interest, if
any, on all Securities to be redeemed on that date. If the Company complies with
the provisions of the preceding sentence, on and after the redemption date,
interest shall cease to accrue on the Securities or the portions of Securities
called for redemption, whether or not such Securities are presented for payment.
If any Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the first
sentence of this paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided with respect to such Security.
Section 3.6. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV.
COVENANTS
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Section 4.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
Series of Securities that it will duly and punctually pay the principal of and
interest, if any, on the Securities of that Series in accordance with the terms
of such Securities and this Indenture.
Section 4.2. SEC REPORTS.
The Company shall deliver to the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also
shall comply with the other provisions of TIA ss. 314(a). Notwithstanding
anything to the contrary contained herein, the Trustee shall have no duty to
review such documents for purposes of determining compliance with any provisions
of this Indenture. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.3. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company, 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 knowledge the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding, deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
Section 4.4. STAY, EXTENSION AND USURY LAWS.
Each of the Company and the Guarantors 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, extension
or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture or the Securities; and
each of the Company and the Guarantors (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not, by resort to any such law, 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 has been enacted.
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Section 4.5. CORPORATE EXISTENCE.
Subject to Article V, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership or other existence of each Significant Subsidiary
in accordance with the respective organizational documents of each Significant
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Significant Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any Significant Subsidiary,
if an Officer shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries
taken as a whole and that the loss thereof is not adverse in any material
respect to the Holders.
Section 4.6. TAXES.
The Company shall, and shall cause each of its Subsidiaries to, pay prior
to delinquency all material taxes, assessments and governmental levies, except
(i) as contested in good faith and by appropriate proceedings or (ii) the
nonpayment of which would not materially adversely affect the business,
condition (financial or otherwise), operations, performance or properties of the
Company and its Subsidiaries, taken as a whole.
Section 4.7. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where the Securities of
any Series may be surrendered for registration of transfer or for exchange
and where notices and demands to or upon the Company in respect of such
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any Series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, the City of New York for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.4
hereof.
ARTICLE V.
SUCCESSORS
Section 5.1. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge into, or convey, transfer
or lease all or substantially all of its properties and assets to, any Person (a
"Successor Person"), unless:
(a) the Successor Person (if any) is a corporation, partnership, trust or
other entity organized and validly existing under the laws of any U.S.
domestic jurisdiction and expressly assumes the Company's obligations
on the Securities and under this Indenture pursuant to a supplemental
indenture in form reasonably acceptable to the Trustee and
(b) immediately after giving effect to the transaction, no Default or Event
of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
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Section 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture
referring to the "COMPANY" shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of, the Company
under this Indenture with the same effect as if such Successor Person has been
named as the Company herein; PROVIDED, HOWEVER, that the predecessor Company in
the case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities, except in the case of a sale of all the Company's assets that meets
the requirements of Section 5.1 hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of any
Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers' Certificate, it is provided that
such Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of that Series
when it becomes due and payable, and continuance of such default for a
period of 30 days (whether or not prohibited by the subordination
provisions of Article XIII hereof); or
(b) default in the payment of the principal or premium of any Security of
that Series (whether or not prohibited by the subordination provisions
of Article XIII hereof) when the same becomes due and payable at
Maturity, upon redemption (including in connection with an offer to
purchase) or otherwise; or
(c) default in the deposit of any sinking fund payment, when and as due in
respect of any Security of that Series; or
(d) default in the performance or breach of any covenant or warranty of the
Company or any Guarantor in this Indenture (other than a covenant or
warranty that has been included in this Indenture solely for the
benefit of Series of Securities other than that Series), which default
continues uncured for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Securities of that Series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any
Guarantor (or the payment of which is
23
Guaranteed by the Company or any Guarantor), whether such Indebtedness
or Guarantee now exists or shall be created hereafter if (i) such
default results in the acceleration of such Indebtedness prior to its
express maturity or shall constitute a default in the payment of such
Indebtedness at final maturity of such Indebtedness and (ii) the
principal amount of such Indebtedness that has been accelerated or not
paid at maturity, together with the principal amount of any other
Indebtedness that has been accelerated or not paid at maturity,
exceeds $10.0 million; or
(f) the Company or any of the Guarantors that is a Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) admits in writing that it generally is unable to pay its debts as
the same become due; or
(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of its Significant
Subsidiaries or for all or substantially all of its property, or
(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 days; or
(h) any other Event of Default provided with respect to Securities of that
Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with
Section 2.2.18.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
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Section 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any Series at the time
outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(f) or (g)) then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the outstanding Securities of that
Series may declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) of and accrued and unpaid interest,
if any, on all of the Securities of that Series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) and accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(f) or (g) shall
occur, the principal amount (or specified amount) of and accrued and unpaid
interest, if any, on all outstanding Securities 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 such a declaration of acceleration with respect to any
Series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the outstanding Securities of
that Series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(i) all overdue interest, if any, on all Securities of that Series,
(ii) the principal of any Securities of that Series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities,
(iii) to the extent that payment of such interest is lawful, interest
upon any overdue principal and overdue interest at the rate or
rates prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of that Series, other
than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
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Section 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of principal of any Security at the
Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment when and as
due by the terms of a Security,
THEN, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file
such other papers or documents
26
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official 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 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.
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 6.6. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7;
Second: to the holders of Senior Debt of the Company or a Guarantor, as
the case may be, to the extent required by Article XIII hereof;
Third: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal
and interest, respectively; and
Fourth: To the Company.
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Section 6.7. LIMITATION ON SUITS.
No Holder of any Security of any Series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
Series;
(b) the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.
Subject to Articles XII and XIII hereof, notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
premium and interest, if any, on such Security on the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the
redemption date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 6.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
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Section 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 6.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the outstanding Securities
of any Series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal
liability.
Section 6.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a continuing Default or Event of Default in
the payment of the principal of or interest on any Security of such Series
(provided, however, that the Holders of a majority in principal amount of the
outstanding
29
Securities of any Series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the outstanding Securities of
any Series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the Stated
Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a
prudent 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 Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; HOWEVER, in the
case of any such Officers' Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such
Officers' Certificates and Opinions of Counsel to determine
whether or not they conform to the requirements of this
Indenture.
30
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This paragraph does not limit the effect of paragraph (b) of this
Section.
(ii) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of
the outstanding Securities of such Series relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to
the Securities of such Series.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent shall be
entitled to the protections, immunities and standard of care as are
set forth in paragraphs (a), (b) and (c) of this Section with respect
to the Trustee.
Section 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on 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 refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. 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.
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(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care. No
Depository shall be deemed an agent of the Trustee and the Trustee
shall not be responsible for any act or omission by any Depository.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
furhter inquiry or investigation into such facts or matters as it may
see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or
investigation.
(h) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is given to the Trustee in accordance with
Section 10.2.
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any
Person authorized to sign an Officers' Certificate, including any
Person specified as so authorized in any such certificate previously
delivered and not superseded.
Section 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same
32
rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or resign. Any
Agent may do the same with like rights. The Trustee is also subject to Sections
7.10 and 7.11.
Section 7.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its authentication.
Section 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing with respect to
the Securities of any Series and if it is actually known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series and, if any Bearer Securities are outstanding, publish
on one occasion in an Authorized Newspaper, notice of a Default or Event of
Default within 90 days after it occurs or, if later, after a Responsible Officer
of the Trustee has actual knowledge of such Default or Event of Default. Except
in the case of a Default or Event of Default in payment of principal of or
interest on any Security of any Series, the Trustee may withhold the notice if
and so long as its corporate trust committee or a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Securityholders of that Series.
Section 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after January 15 in each year, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear on the register
kept by the Registrar and, if any Bearer Securities are outstanding, publish in
an Authorized Newspaper, a brief report dated as of such January 15, in
accordance with, and to the extent required under, TIA ss. 313.
A copy of each report at the time of its mailing to Securityholders of any
Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange or any
delisting thereof.
Section 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation
for its services as the Company and the Trustee shall agree in writing. 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 upon
request for all reasonable out-of-pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and expenses of the Trustee's agents
and counsel.
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The Company shall indemnify the Trustee or any predecessor Trustee and
their agents (including the cost of defending itself against any claim (whether
asserted by the Company, or any Holder or any other Person)) against any and all
loss, damages, claims, liability or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee) incurred by
it except as set forth in the next paragraph in the performance of their duties
under this Indenture as Trustee or Agent. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim 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. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the
Trustee.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee due to its own negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) (or any comparable provisions set
forth in a supplemental indenture) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the
extent applicable.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
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.
The Trustee may resign with respect to the Securities of one or more Series
by so notifying the Company in writing. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
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(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more
Series does not take office within 60 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction at the expense of the Company for the
appointment of a successor Trustee.
If the Trustee with respect to the Securities of any one or more Series
fails to comply with Section 7.10, any Securityholder of the applicable Series,
who has been a Securityholder for at least six months, 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. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee subject to the lien provided for in Section 7.7, 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 with respect
to each Series of Securities for which it is acting as Trustee under this
Indenture. A successor Trustee shall mail a notice of its succession to each
Securityholder of each such Series and, if any Bearer Securities are
outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1), (2) and (5). The Trustee shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b).
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Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.2 or 8.3 hereof be applied to all outstanding Securities of a
Series upon compliance with the conditions set forth below in this Article
Eight.
Section 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, each of the Company and the Guarantors, if
any, shall, subject to the satisfaction of the conditions set forth in
Section 8.4 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Securites of such Series and related
Subsidiary Guarantees on the date the conditions set forth below are
satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities of such
Series, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture as it relates to such
Securities (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 Securities of
such Series to receive solely from the trust fund described in Section 8.4
hereof, and as more fully set forth in such section, payments in respect of
the principal of, premium, if any, and interest on such Securities when such
payments are due, (b) the Company's and Guarantors' obligations with respect
to such Securities under Article 2 hereof, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's and the
Guarantors' obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.2 notwithstanding the prior exercise of its
option under Section 8.3 hereof.
Section 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, each of the Company and the Guarantors, if any,
shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from its obligations under the
36
covenants specified pursuant to Section 2.2 hereof and Article V hereof with
respect to the outstanding Securities of such Series and related Subsidiary
Guarantees on and after the date the conditions set forth below are satisfied
(hereinafter, "COVENANT DEFEASANCE"), and such Securities 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 Securities
shall not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Securities of
such Series, 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 hereof, but, except as specified above, the remainder of
this Indenture, such Securities and the related Subsidiary Guarantees, if
any, shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.1 hereof of the option applicable to this Section 8.3 hereof,
subject to the satisfaction of the conditions set forth in Section 8.4
hereof, Sections 6.1(c) through 6.1(e) and 6.1(h) hereof (or any comparable
provisions set forth in a supplemental indenture) shall not constitute Events
of Default.
Section 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.2 or 8.3 hereof to the outstanding Securities of such Series:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the outstanding
Securities of such Series on the Stated Maturity or on the applicable
redemption date, as the case may be, of such principal or installment
of principal of, premium, if any, or interest on the outstanding
Securities of such Series;
(b) in the case of an election under Section 8.2 hereof, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States (which counsel may be an employee of the Company or any
Subsidiary of the Company) reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date hereof, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding
Securities of such Series 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;
37
(c) in the case of an election under Section 8.3 hereof, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States (which counsel may be an employee of the Company or any
Subsidiary of the Company) reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Securities of such
Series will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 6.1(f) and 6.1(g)
hereof (or any comparable provisions set forth in a supplemental
indenture) are concerned, at any time in the period ending on the 91st
day after the date of deposit (or greater period of time in which
any such deposit of trust funds may remain subject to Bankruptcy Law
insofar as those apply to the deposit by the Company);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of such Securities over any other
creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
Section 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding
Securities of a Series subject to a Legal Defeasance or a Covenant Defeasance
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Securities of all
sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company and the Guarantors shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government
38
Securities deposited pursuant to Section 8.4 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities of a Series subject to Legal Defeasance or a Covenant Defeasance.
Anything in this Article Eight to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.4 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.4(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6. 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 of, premium, if
any, or interest, if any, on any Securities of a Series subject to Legal
Defeasance or a Covenant Defeasance and remaining unclaimed for two years
after such principal, and premium, if any, or interest, if any, have become
due and payable shall be paid to the Company on its request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in THE NEW YORK
TIMES and THE WALL STREET JOURNAL (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2
or 8.3 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture, the Securities of such Series and the related Subsidiary
Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.2 or 8.3 hereof 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 hereof, as the case may be; PROVIDED, HOWEVER, that, if the
Company make any payment of principal of, premium, if any, or interest, if
any, on any such Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. WITHOUT CONSENT OF HOLDERS.
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The Company, the Guarantors and the Trustee may amend or supplement this
Indenture or the Securities of one or more Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to make any change that does not materially adversely affect the rights
of any Securityholder;
(e) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as permitted by this Indenture;
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee; or
(g) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Section 9.2. WITH CONSENT OF HOLDERS.
The Company, the Guarantors and the Trustee may enter into a supplemental
indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal amount
of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
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Section 9.3. LIMITATIONS.
Without the consent of each Securityholder affected, an amendment or waiver
may not:
(a) reduce the principal amount of Securities whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of interest on any
Security;
(c) reduce the principal of or change the Stated Maturity of any Security
or alter any of the provisions with respect to the redemption of the
Security in a manner adverse to the Holders of the Security;
(d) waive a Default or Event of Default in the payment of the principal of
or premium, if any, or interest, if any, on any Security (except a
rescission of acceleration of the Securities of any Series by the
Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that
resulted from such acceleration);
(e) make the principal of or interest, if any, on any Security payable in
any currency other than that stated in the Security;
(f) make any change in the provisions of this Indenture relating to waivers
of past Defaults or the rights of Holders of the Securities of any
Series to receive payments of principal of or premium, if any, or
interest on such Security;
(g) waive a redemption payment with respect to any Security or change any
of the provisions with respect to the redemption of any Securities; or
(h) make any change in the foregoing amendment and waiver provisions.
Section 9.4. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture hereto that complies with the TIA
as then in effect.
Section 9.5. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective.
41
Any amendment or waiver once effective shall bind every Securityholder of
each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.6. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security of any Series thereafter authenticated. The Company in exchange
for Securities of that Series may issue and the Trustee shall authenticate upon
request new Securities of that Series that reflect the amendment or waiver.
Section 9.7. TRUSTEE TO SIGN AMENDMENTS; TRUSTEE PROTECTED.
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. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of
Counsel and Officers' Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
shall sign all supplemental indentures, except that the Trustee need not sign
any supplemental indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 10.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
Section 10.2. NOTICES.
Any notice or communication by the Company, any Guarantor or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company or any Guarantor:
Iron Mountain Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee Administration
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Securityholders)
must reference the Securities and this Indenture and shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Securityholder shall be mailed by first
class mail, or by overnight air courier guaranteeing next day delivery to its
address shown on the register kept by the Registrar. Any notice or communication
shall also be so mailed to any Person described in TIA ss. 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with respect
to other Securityholders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or any Guarantor mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same
time.
Section 10.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA ss. 312(b)
with other Securityholders of that Series or any other Series with respect to
their rights under this Indenture or the Securities of that Series or all
Series. The Company, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA ss. 312(c).
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Section 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 10.5. 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 ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he 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 complied with; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
Section 10.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 10.7. LEGAL HOLIDAYS.
Unless otherwise provided by Board Resolution, Officers' Certificate or
supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
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Section 10.8. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Securities of any
Series, the Subsidiary Guarantees, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Securities of any Series, by accepting a Security and the related Subsidiary
Guarantees waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Series of Securities and the
Subsidiary Guarantees.
Section 10.9. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Section 10.10. GOVERNING LAWS.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. SUCCESSORS.
All agreements of the Company and the Guarantors in this Indenture and the
Securities and the Subsidiary Guarantees shall bind their respective successors.
All agreements of the Trustee in this Indenture shall bind its successors.
Section 10.13. SEVERABILITY.
In case any provision in this Indenture, the Securities or the Subsidiary
Guarantees, if any, 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 10.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
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Section 10.15. SECURITIES IN A FOREIGN CURRENCY OR IN ECU.
Unless otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers' Certificate delivered pursuant to Section 2.2 of this
Indenture with respect to a particular Series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all Series or all
Series affected by a particular action at the time outstanding and, at such
time, there are outstanding Securities of any Series which are denominated in a
coin or currency other than Dollars (including ECUs), then the principal amount
of Securities of such Series which shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication,
the "Journal"). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
Section 10.16. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day,
then, the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be
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discharged or satisfied by any tender, any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.
ARTICLE XI.
SINKING FUNDS
Section 11.1. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
the Securities of any Series is herein referred to as a "mandatory sinking fund
payment" and any other amount provided for by the terms of Securities of such
Series is herein referred to as an "optional sinking fund payment." If provided
for by the terms of Securities of any Series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 11.2. Each
sinking fund payment shall be applied to the redemption of Securities of any
Series as provided for by the terms of the Securities of such Series.
Section 11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made pursuant to the
terms of such Securities (1) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (2) apply as credit
Securities of such Series to which such sinking fund payment is applicable and
which have been redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking
fund) or through the application of permitted optional sinking fund payments or
other optional redemptions pursuant to the terms of such Securities, provided
that such Securities have not been previously so credited. Such Securities shall
be received by the Trustee, together with an Officers' Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee begins
the process of selecting Securities for redemption, and shall be credited for
such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities in lieu of cash payments pursuant to this Section 11.2, the
principal amount of Securities of such Series to be redeemed in order to exhaust
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the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such Series for redemption, except upon receipt of a Company
Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, PROVIDED, HOWEVER, that the Trustee or such Paying Agent shall from
time to time upon receipt of a Company Order pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Securities of that Series purchased by the
Company having an unpaid principal amount equal to the cash payment required to
be released to the Company.
Section 11.3. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officers' Certificate in respect of a
particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
ARTICLE XII.
SUBSIDIARY GUARANTEES
Section 12.1. SUBSIDIARY GUARANTEE.
Each Subsidiary that is a signatory hereto and each Subsidiary of the
Company that in accordance with the terms of any Securities of a Series issued
hereunder pursuant to any supplement indenture relating to such Securities is
required to become party to this Indenture as a guarantor (each, a "GUARANTOR"),
hereby jointly and severally unconditionally guarantees to each Securityholder
of a Security of a Series that is to be guaranteed and that has been
authenticated and delivered by the Trustee irrespective of the validity or
enforceability of this Indenture, the Securities or the obligations of the
Company under this Indenture or the Securities, that: (i) the principal of and
interest on the Securities will be paid in full when due, whether at the
maturity or interest payment or mandatory redemption date, by acceleration, call
for redemption or otherwise, and interest on the overdue principal of and
interest, if any, on the Securities and all other obligations of the Company to
the Securityholders or the Trustee under this Indenture or the Securities will
be promptly paid in full or performed, all in accordance with the terms of this
Indenture and the Securities; and (ii) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, they will
be paid in full
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when due or performed in accordance with the terms of the extension or renewal,
whether at maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed for whatever reason, each Guarantor will be obligated
to pay the same whether or not such failure to pay has become an Event of
Default which could cause acceleration pursuant to Section 6.2 hereof. Each
Guarantor agrees that this is a guarantee of payment not a guarantee of
collection.
Each Guarantor hereby agrees that its obligations with regard to this
Subsidiary Guarantee shall be joint and several and unconditional, irrespective
of the validity or enforceability of the Securities or the obligations of the
Company under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Securities or the obligations of the Company under this
Indenture or the Securities, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (a) any right to require the Trustee, the Securityholders or the
Company (each, a "BENEFITED PARTY") to proceed against the Company or any other
Person or to proceed against or exhaust any security held by a Benefited Party
at any time or to pursue any other remedy in any Benefited Party's power before
proceeding against such Guarantor; (b) the defense of the statute of limitations
in any action hereunder or in any action for the collection of any Indebtedness
or the performance of any obligation hereby guaranteed; (c) any defense that may
arise by reason of the incapacity, lack of authority, death or disability of any
other Person or the failure of a Benefited Party to file or enforce a claim
against the estate (in administration, bankruptcy or any other proceeding) of
any other Person; (d) demand, protest and notice of any kind including but not
limited to notice of the existence, creation or incurring of any new or
additional Indebtedness or obligation or of any action or non-action on the part
of such Guarantor, the Company, any Benefited Party, any creditor of such
Guarantor, the Company or on the part of any other Person whomsoever in
connection with any Indebtedness or obligations hereby guaranteed; (e) any
defense based upon an election of remedies by a Benefited Party, including but
not limited to an election to proceed against such Guarantor for reimbursement;
(f) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (g) any defense arising because of a
Benefited Party's election, in any proceeding instituted under Bankruptcy Law,
of the application of 11 U.S.C. Section 1111(b)(2); or (h) any defense based on
any borrowing or grant of a security interest under 11 U.S.C. Section 364. Each
Guarantor hereby covenants that its Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in its Subsidiary
Guarantee and this Indenture.
If any Securityholder or the Trustee is required by any court or otherwise
to return to either the Company or any Guarantor, or any Custodian acting in
relation to either the Company or such Guarantor, any amount paid by the Company
or such Guarantor to the Trustee or such Securityholder, the applicable
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
and be in full force and effect. Each Guarantor agrees that it will
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not be entitled to any right of subrogation in relation to the Securityholders
in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
Each Guarantor further agrees that, as between such Guarantor, on the one
hand, and the Securityholders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Section 6.2 hereof for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company or any other obligor on the Securities of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 6.2 hereof, those
obligations (whether or not due and payable) will forthwith become due and
payable by such Guarantor for the purpose of this Subsidiary Guarantee.
Section 12.2. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and, by its acceptance hereof, the Trustee and each
Securityholder hereby confirm that it is its intention that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, each such Person hereby irrevocably agrees that the obligation of
such Guarantor under its Subsidiary Guarantee under this Article 12 shall be
limited to the maximum amount as will, after giving effect to such maximum
amount and all other (contingent or other) liabilities of such Guarantor that
are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this
Article 12, result in the obligations of such Guarantor in respect of such
maximum amount not constituting a fraudulent transfer or conveyance under said
laws. The Trustee and each Securityholder by accepting the benefits hereof,
confirms its intention that, in the event of a bankruptcy, reorganization or
other similar proceeding of the Company or any Guarantor in which concurrent
claims are made upon such Guarantor hereunder, to the extent such claims will
not be fully satisfied, each such claimant with a valid claim against the
Company shall be entitled to a ratable share of all payments by such Guarantor
in respect of such concurrent claims. For all purposes of this Section 12.2,
Senior Debt shall be deemed to have been incurred prior to the incurrence of the
obligations in respect of the Subsidiary Guarantees.
ARTICLE XIII.
SUBORDINATION
Section 13.1. AGREEMENT TO SUBORDINATE.
The Company, the Trustee and each Securityholder by accepting a Security
agrees, that the indebtedness and obligations evidenced by the Security (a)
rank PARI PASSU with the Company's Obligations relating to the Existing
Senior Subordinated Securities and (b) are subordinated in right of payment,
to the extent and in the manner provided in this Article, to the prior
payment in full, in cash, of all Obligations with respect to Senior Debt of
the Company (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt of the Company.
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Section 13.2. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities:
(1) holders of Senior Debt of the Company shall be entitled to receive
payment in full in cash of all Obligations due in respect of such
Senior Debt of the Company (including interest after the commencement
of any such proceeding at the rate specified in the applicable Senior
Debt of the Company, whether or not allowed as a claim in such
proceeding) before Securityholders shall be entitled to receive any
payment or distribution from the Company with respect to the
Securities; and
(2) until all Obligations with respect to Senior Debt of the Company (as
provided in subsection (1) above) are paid in full in cash, any
payment or distribution to which the Trustee or any Securityholder
would be entitled but for this Article shall be made to holders of
Senior Debt of the Company, as their interests may appear.
Section 13.3. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any payment or distribution upon or in respect of
the Securities, including, without limitation, by way of set-off or otherwise,
or redeem (or make a deposit in redemption of), defease or acquire any of the
Securities, for cash, properties or securities if:
(i) a default in the payment of any principal, premium, if any, or
interest or other Obligations (a "PAYMENT DEFAULT") with respect
to Senior Debt of the Company occurs and is continuing; or
(ii) a default (other than a Payment Default) or any event that, after
notice or passage of time would become a default (a "NON-MONETARY
DEFAULT"), on Senior Debt of the Company occurs and is continuing
that then permits holders of the Senior Debt of the Company to
accelerate its maturity and the Trustee receives a notice of the
default (a "PAYMENT BLOCKAGE NOTICE") from a Person who may give
it pursuant to Section 13.11 hereof. Any number of such Payment
Blockage Notices may be given, PROVIDED, HOWEVER, that (i) not
more than one Payment Blockage Notice may be commenced during any
period of 360 consecutive days and (ii) any Non-Monetary Default
that existed or was continuing on the date of delivery of any
such notice to the Trustee (to the extent the holder of
Designated Senior Debt, or such trustee or agent, giving such
Payment Blockage Notice had knowledge of the same) shall not be
the basis for a subsequent Payment Blockage Notice, unless such
default has been cured or waived for a period of not less than 90
days.
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The Company may and shall resume payments on and distributions in respect
of the Securities and all Obligations with respect thereto, and may acquire such
Securities or Obligations upon the earlier of:
(1) in the case of a payment default, the date upon which such default is
cured or waived, or
(2) in the case of a Non-Monetary Default, on the earlier of the date on
which such Non-Monetary Default is cured or waived or 179 days after
the date on which the applicable Payment Blockage Notice is received,
if the maturity of such Senior Debt of the Company has not been
accelerated,
if this Article 13 otherwise permits the payment, distribution or acquisition at
the time thereof.
Section 13.4. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify Representatives of the holders of
Senior Debt of the Company of the acceleration.
Section 13.5. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Securityholder receives from the
Company any payment of any Obligations with respect to the Securities at a time
when the Trustee or such Securityholder, as applicable, has actual knowledge
that such payment is prohibited by Section 13.2 or 13.3 hereof, such payment
shall be held by the Trustee or such Securityholder in trust for the benefit of,
and shall be paid forthwith over and delivered upon written request to, the
holders of Senior Debt of the Company, as their interests may appear, or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Debt of the Company may have been issued, as their respective interests
may appear, for application to the payment of all Obligations with respect to
Senior Debt of the Company remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt of the
Company.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 13, and no implied covenants or
obligations with respect to the holders of Senior Debt of the Company shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt of the Company, and shall
not be liable to any such holders if the Trustee shall pay over or distribute to
or on behalf of Securityholders or the Company or any other Person money or
assets to which any holders of Senior Debt of the Company shall be entitled by
virtue of this Article 13, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.
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Section 13.6. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior Debt
of the Company as provided in this Article.
Section 13.7. SUBROGATION.
After all Obligations with respect to Senior Debt of the Company are paid
in full, in cash, and until the Securities are paid in full, Securityholders
shall be subrogated (equally and ratably with all other Indebtedness PARI PASSU
with the Securities) to the rights of holders of Senior Debt of the Company to
receive distributions applicable to Senior Debt of the Company to the extent
that distributions otherwise payable to the Securityholders have been applied to
the payment of Senior Debt of the Company. A distribution made under this
Article to holders of Senior Debt of the Company that otherwise would have been
made to Securityholders is not, as between the Company and Securityholders, a
payment by the Company on the Securities.
Section 13.8. RELATIVE RIGHTS.
This Article defines the relative rights of Securityholders and holders of
Senior Debt of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the obligation of
the Company, which is absolute and unconditional, to pay principal of
and interest on the Securities in accordance with their terms;
(2) affect the relative rights of Securityholders and creditors of the
Company other than their rights in relation to holders of Senior Debt
of the Company; or
(3) prevent the Trustee or any Securityholder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt of the Company to receive
distributions and payments otherwise payable to Securityholders.
If the Company fails because of this Article 13 to pay principal of,
premium or interest on a Security on the due date, the failure is still a
Default or Event of Default.
Section 13.9. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or any Securityholder or by the
failure of the Company or any Securityholder to comply with this Indenture.
Section 13.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt of the Company, the distribution may be made and the notice given to
their Representative.
53
Upon any payment or distribution of assets of the Company referred to in
this Article 13, the Trustee and the Securityholders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Securityholders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt of the Company and other
Indebtedness of the Company, the amount or amounts thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 13.
Section 13.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 13 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Securities, unless the Trustee shall have received at its Corporate Trust
Office at least one Business Day prior to the date of such payment a Payment
Blockage Notice. Only the holders or the Representative of holders of Designated
Senior Debt of the Company may give a Payment Blockage Notice. Nothing in this
Article 13 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt of
the Company with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
Section 13.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Securityholder of a Security by the Securityholder's acceptance
thereof authorizes and directs the Trustee on the Securityholder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 13, and appoints the Trustee to act as
the Securityholder's attorney-in-fact for any and all such purposes. If the
Trustee does not file a proper proof of claim or proof of debt in the form
required in any proceeding referred to in Section 6.4 hereof at least 30 days
before the expiration of the time to file such claim, the Representatives of the
Senior Debt of the Company are hereby authorized to file an appropriate claim
for and on behalf of the Securityholders of the Securities.
Section 13.13. AMENDMENTS.
The provisions of this Article 13 shall not be amended or modified without
the written consent of the holders of all Senior Debt of the Company.
Section 13.14. SUBORDINATION OF SUBSIDIARY GUARANTEES.
Each Guarantor, the Trustee, and each Securityholder by accepting a
Security agrees, that the indebtedness and obligations under the Subsidiary
Guarantees (a) rank PARI PASSU with the Guarantor's guarantees of the
Existing Senior Subordinated Securities and (b) are subordinated in right of
payment, to the extent and in the manner provided in this Article 13, to the
prior payment in full, in cash, of all Obligations with respect to Senior
Debt of such Guarantor (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for
the benefit of the holders of Senior Debt of such Guarantor.
54
Section 13.15. LIQUIDATION; DISSOLUTION; BANKRUPTCY OF A GUARANTOR.
Upon any payment or distribution to creditors of any Guarantor in a
liquidation or dissolution of such Guarantor or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to such Guarantor or its
property, in an assignment for the benefit of creditors or any marshaling of
such Guarantor's assets and liabilities:
(1) holders of Senior Debt of such Guarantor shall be entitled to receive
payment in full in cash of all Obligations due in respect of such
Senior Debt of such Guarantor (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Senior Debt of such Guarantor, whether or not allowed as a
claim in such proceeding) before the Securityholders shall be entitled
to receive any payment or distribution from the Guarantor with respect
to such Guarantor's Subsidiary Guarantee; and
(2) until all Obligations with respect to Senior Debt of such Guarantor (as
provided in subsection (1) above) are paid in full in cash, any
payment or distribution to which the Trustee or any Securityholder
would be entitled but for this Article shall be made to holders of
Senior Debt of such Guarantor, as their interests may appear.
Section 13.16. DEFAULT ON SENIOR DEBT OF THE GUARANTOR.
No Guarantor shall make any payment or distribution upon or in respect of
the Securities or its Subsidiary Guarantee, including, without limitation, by
way of set-off or otherwise, or redeem (or make a deposit in redemption of),
defease or acquire any of the Securities, for cash, properties or securities if:
(i) a Payment Default with respect to Senior Debt of such Guarantor
occurs and is continuing; or
(ii) a Non-Monetary Default on Senior Debt of such Guarantor occurs
and is continuing that then permits holders of the Senior Debt of
such Guarantor to accelerate its maturity and the Trustee
receives a Payment Blockage Notice from a Person who may give it
pursuant to Section 13.24 hereof. Any number of such Payment
Blockage Notices may be given, PROVIDED, HOWEVER, that (i) not
more than one Payment Blockage Notice may be commenced during any
period of 360 consecutive days and (ii) any default or event of
default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee (to the extent the
holder of Designated Senior Debt, or such trustee or agent,
giving such Payment Blockage Notice had knowledge of the same)
shall not be the basis for a subsequent Payment Blockage Notice
pursuant to Section 13.24 herein, unless such default has been
cured or waived for a period of not less than 90 consecutive
days.
55
Each Guarantor may and shall resume payments on and distributions in
respect of its Subsidiary Guarantee, the Securities and all Obligations with
respect thereto, and may acquire such Securities or Obligations upon the earlier
of:
(1) in the case of a payment default, the date upon which such default is
cured or waived, or
(2) in the case of a Non-Monetary Default, on the earlier of the date on
which such Non-Monetary Default is cured or waived or 179 days after
the date on which the applicable Payment Blockage Notice is received,
if the maturity of such Senior Debt of such Guarantor has not been
accelerated,
if this Article 13 otherwise permits the payment, distribution or acquisition at
the time thereof.
Section 13.17. ACCELERATION OF SECURITIES; DUTIES OF GUARANTORS.
If payment of the Securities is accelerated because of an Event of Default,
each Guarantor shall promptly notify the Representative of the holders of Senior
Debt of such Guarantor of the acceleration.
Section 13.18. WHEN DISTRIBUTION FROM GUARANTOR MUST BE PAID OVER.
In the event that the Trustee or any Securityholder receives from a
Guarantor any payment of any Obligations with respect to the Securities or the
Subsidiary Guarantees at a time when the Trustee or such Securityholder, as
applicable, has actual knowledge that such payment is prohibited by Section
13.15 or 13.16 hereof, such payment shall be held by the Trustee or such
Securityholder, in trust for the benefit of, and shall be paid forthwith over
and delivered upon written request to, the holders of Senior Debt of such
Guarantor, as their interests may appear, or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Debt of such
Guarantor may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Senior Debt of
such Guarantor remaining unpaid to the extent necessary to pay such Obligations
in full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt of such Guarantor.
With respect to the holders of Senior Debt of any Guarantor, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 13, and no implied covenants or
obligations with respect to the holders of Senior Debt of such Guarantor shall
be read into this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Debt of such Guarantor, and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Securityholders or the Company or any other Person
money or assets to which any holders of Senior Debt of such Guarantor shall be
entitled by virtue of this Article 13, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
56
Section 13.19. NOTICE BY A GUARANTOR.
Each Guarantor shall promptly notify the Trustee and the Paying Agent of
any facts known to such Guarantor that would cause a payment of any Obligations
with respect to the Securities or its Subsidiary Guarantee to violate this
Article, but failure to give such notice shall not affect the subordination of
its Subsidiary Guarantee or of the Securities to the Senior Debt of such
Guarantor as provided in this Article 13.
Section 13.20. SUBROGATION WITH RESPECT TO ANY GUARANTOR.
With respect to any Guarantor, after all Obligations with respect to Senior
Debt of such Guarantor is paid in full, in cash, and until the Securities are
paid in full, Securityholders shall be subrogated (equally and ratably with all
other Indebtedness PARI PASSU with such Guarantor's Subsidiary Guarantee) to the
rights of holders of Senior Debt of such Guarantor to receive distributions
applicable to Senior Debt of such Guarantor to the extent that distributions
otherwise payable to the Securityholders have been applied to the payment of
Senior Debt of such Guarantor. A distribution made under this Article to holders
of Senior Debt of such Guarantor that otherwise would have been made to
Securityholders is not, as between such Guarantor and Securityholders, a payment
by such Guarantor on the Securities or the Subsidiary Guarantee.
Section 13.21. RELATIVE RIGHTS WITH RESPECT TO ANY GUARANTOR.
This Article defines the relative rights of Securityholders and holders of
Senior Debt of each Guarantor. Nothing in this Indenture shall:
(1) impair, as between such Guarantor and the Securityholders, the
obligation of such Guarantor, which is absolute and unconditional, to
pay principal of and interest on the Securities in accordance with the
terms of its Subsidiary Guarantee;
(2) affect the relative rights of Securityholders and creditors of such
Guarantor other than their rights in relation to holders of Senior
Debt of such Guarantor; or
(3) prevent the Trustee or any Securityholder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of
holders of Senior Debt of such Guarantor set forth herein to receive
distributions and payments otherwise payable to Securityholders.
If any Guarantor fails because of this Article 13 to pay principal of,
premium or interest on a Security on the due date, the failure is still a
Default or Event of Default.
Section 13.22. SUBORDINATION MAY NOT BE IMPAIRED BY ANY GUARANTOR.
With respect to any Guarantor, no right of any holder of Senior Debt of
such Guarantor to enforce the subordination of the Indebtedness evidenced by the
Subsidiary Guarantee shall be impaired by any act or failure to act by such
Guarantor or any Securityholder or by failure of such Guarantor or any
Securityholder to comply with this Indenture.
57
Section 13.23. DISTRIBUTION OR NOTICE TO REPRESENTATIVE WITH RESPECT TO ANY
GUARANTOR.
With respect to any Guarantor, whenever a distribution is to be made or a
notice given to holders of Senior Debt of such Guarantor, the distribution may
be made and the notice given to their Representative.
Upon any payment or distribution of assets of any Guarantor referred to in
this Article 13, the Trustee and the Securityholders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Securityholders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt of such Guarantor and other
Indebtedness of such Guarantor, the amount or amounts thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 13.
Section 13.24. RIGHTS OF TRUSTEE AND PAYING AGENT WITH RESPECT TO ANY GUARANTOR.
Notwithstanding the provisions of this Article 13 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Securities, unless the Trustee shall have received at its Corporate Trust
Office at least one Business Day prior to the date of such payment a Payment
Blockage Notice. Only the Representative of holders of Designated Senior Debt
may give a Payment Blockage Notice. Nothing in this Article 13 shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.7 hereof.
With respect to any Guarantor, the Trustee in its individual or any other
capacity may hold Senior Debt of such Guarantor with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
Section 13.25. AUTHORIZATION TO EFFECT SUBORDINATION WITH RESPECT TO ANY
GUARANTOR.
Each Securityholder of a Security by the Securityholder's acceptance
thereof authorizes and directs the Trustee on the Securityholder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 13, and appoints the Trustee to act as
the Securityholder's attorney-in-fact for any and all such purposes. If the
Trustee does not file a proper proof of claim or proof of debt in the form
required in any proceeding relative to any Guarantor referred to in Section 6.4
hereof at least 30 days before the expiration of the time to file such claim,
the Representatives of Senior Debt of such Guarantor are hereby authorized to
file an appropriate claim for and on behalf of the Securityholders of the
Securities.
Section 13.26. AMENDMENTS WITH RESPECT TO ANY GUARANTOR.
With respect to any Guarantor, the provisions of Section 13.14 through
13.26 hereof shall not be amended or modified without the written consent of the
holders of all Senior Debt of such Guarantor.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date and year first written above.
IRON MOUNTAIN INCORPORATED
By:
---------------------------------------------
Name:
Title:
ARCUS DATA SECURITY, INC.
COMAC, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IM BILLERICA, INC.
IRON MOUNTAIN GLOBAL, INC.
IRON MOUNTAIN RECORDS MANAGEMENT, INC.
IRON MOUNTAIN RECORDS MANAGEMENT OF MICHIGAN, INC.
By:
---------------------------------------------
Name:
Title:
IRON MOUNTAIN/NATIONAL UNDERGROUND STORAGE, LLC
IRON MOUNTAIN CONSULTING SERVICES, LLC
IRON MOUNTAIN CONFIDENTIAL DESTRUCTION LLC
By: Iron Mountain Records Management, Inc.,
its sole Member
By:
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Name:
Title:
[Indenture Signature Page]
IRON MOUNTAIN GLOBAL LLC
By: Iron Mountain Global, Inc., its sole Member
By:
---------------------------------------------------
Name:
Title:
ARCUS DATA SECURITY LLC
By: Arcus Data Security, Inc., its sole Member
By:
---------------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title: