SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 11, 1999 (April 19, 1999)
IRON MOUNTAIN INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 0-27584 04-3107342
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
745 Atlantic Avenue
Boston, Massachusetts 02111
(Address of principal executive offices, including zip code)
(617) 535-4766
(Registrant=s telephone number, including area code)
<PAGE>
Item 7. Financial Statements and Exhibits
(c) Exhibits.
Exhibit No. Item
10.1 Indenture for 83% Senior Subordinated Notes due 2011, dated as
of April 26, 1999, by and among Iron Mountain, certain of its
subsidiaries and The Bank of New York, as trustee.
10.2 Exchange and Registration Rights Agreement, dated as of April
26, 1999, by and among Iron Mountain and certain of its
subsidiaries and Bear, Stearns & Co. Inc., Chase Securities
Inc., BNY Capital Markets, Inc., Fleet Securities, Inc.,
Prudential Securities Incorporated and Scotia Capital Markets
(USA) Inc., as initial purchasers.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IRON MOUNTAIN INCORPORATED
(Registrant)
By: /s/ Jean A. Bua
Jean A. Bua
Vice President and Corporate Controller
Date: May 11, 1999
================================================================================
EXHIBIT 10.1
IRON MOUNTAIN INCORPORATED
8 1/4% Senior Subordinated Notes due 2011
-----------------
INDENTURE
Dated as of April 26, 1999
-----------------
THE BANK OF NEW YORK,
as Trustee
================================================================================
<PAGE>
CROSS REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1).............................................................7.10
(a)(2).............................................................7.10
(a)(3).............................................................N.A.
(a)(4).............................................................N.A.
(a)(5).............................................................7.10
(b)................................................................7.10
(c)................................................................N.A.
311 (a)................................................................7.11
(b)................................................................7.11
(c)................................................................N.A.
312 (a)................................................................2.05
(b)...............................................................12.03
(c)...............................................................12.03
313 (a)................................................................7.06
(b)(1).............................................................N.A.
(b)(2)........................................................7.06;7.07
(c)..........................................................7.06;12.02
(d)................................................................7.06
314 (a)..........................................................4.03;12.02
(b)................................................................N.A.
(c)(1)............................................................12.04
(c)(2)............................................................12.04
(c)(3).............................................................N.A.
(d)................................................................N.A.
(e)...............................................................12.05
(f)................................................................N.A.
315 (a)................................................................7.01
(b)..........................................................7.05,12.02
(c)................................................................7.01
(d)................................................................7.01
(e)................................................................6.11
316 (a)(last sentence).................................................2.09
(a)(1)(A)..........................................................6.05
(a)(1)(B)..........................................................6.04
(a)(2).............................................................N.A.
(b)................................................................6.07
(c)...............................................................2.13
317 (a)(1).............................................................6.08
(a)(2).............................................................6.09
(b)................................................................2.04
318 (a)...............................................................12.01
(b)................................................................N.A.
(c)...............................................................12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of this Indenture.
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page No.
<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE............................................................1
Section 1.01. Definitions....................................................................................1
Section 1.02. Other Definitions.............................................................................17
Section 1.03. Incorporation by Reference of Trust Indenture Act.............................................17
Section 1.04. Rules of Construction.........................................................................18
ARTICLE 2. THE NOTES.............................................................................................18
Section 2.01. Form and Dating...............................................................................18
Section 2.02. Execution and Authentication..................................................................19
Section 2.03. Registrar, Paying Agent and Depositary........................................................20
Section 2.04. Paying Agent to Hold Money in Trust...........................................................20
Section 2.05. Lists of Holders of the Notes.................................................................20
Section 2.06. Transfer and Exchange.........................................................................21
Section 2.07. Replacement Notes.............................................................................24
Section 2.08. Outstanding Notes.............................................................................25
Section 2.09. Treasury Notes................................................................................25
Section 2.10. Temporary Notes...............................................................................25
Section 2.11. Cancellation..................................................................................25
Section 2.12. Defaulted Interest............................................................................26
Section 2.13. Record Date...................................................................................26
Section 2.14. CUSIP Number..................................................................................26
Section 2.15. Computation of Interest.......................................................................26
Section 2.16. Exchange of Series A Notes for Series B Notes.................................................26
Section 2.17. Legends.......................................................................................27
ARTICLE 3. REDEMPTION AND OFFERS TO PURCHASE.....................................................................28
Section 3.01. Notices to Trustee............................................................................28
Section 3.02. Selection of Notes to Be Redeemed.............................................................28
Section 3.03. Notice of Redemption..........................................................................28
Section 3.04. Effect of Notice of Redemption................................................................29
Section 3.05. Deposit of Redemption Price...................................................................30
Section 3.06. Notes Redeemed in Part........................................................................30
Section 3.07. Optional Redemption...........................................................................30
Section 3.08. Mandatory Redemption..........................................................................31
Section 3.09. Asset Sale Offers.............................................................................31
ARTICLE 4. COVENANTS.............................................................................................33
Section 4.01. Payment of Notes..............................................................................33
Section 4.02. Maintenance of Office or Agency...............................................................34
Section 4.03. Reports.......................................................................................34
Section 4.04. Compliance Certificate........................................................................35
Section 4.05. Taxes.........................................................................................36
Section 4.06. Stay, Extension and Usury Laws................................................................36
Section 4.07. Restricted Payments...........................................................................36
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.....................38
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock....................................39
Section 4.10. Asset Sales...................................................................................40
Section 4.11. Transactions with Affiliates..................................................................42
Section 4.12. Liens.........................................................................................42
Section 4.13. Additional Subsidiary Guarantees..............................................................42
Section 4.14. Offer to Purchase Upon Change of Control......................................................43
Section 4.15. Corporate Existence...........................................................................45
Section 4.16. Certain Senior Subordinated Debt..............................................................45
Section 4.17. Designation of unrestricted subsidiaries......................................................45
Section 4.18. Limitation on Sale and Leaseback Transactions.................................................46
ARTICLE 5. SUCCESSORS............................................................................................46
Section 5.01. Merger, Consolidation, or Sale of Assets......................................................46
Section 5.02. Successor Corporation Substituted.............................................................47
ARTICLE 6. CERTAIN DEFAULT PROVISIONS............................................................................47
Section 6.01. Events of Default.............................................................................47
Section 6.02. Acceleration..................................................................................49
Section 6.03. Other Remedies................................................................................50
Section 6.04. Waiver of Past Defaults.......................................................................50
Section 6.05. Control by Majority...........................................................................50
Section 6.06. Limitation on Suits...........................................................................50
Section 6.07. Rights of Holders of Notes to Receive Payment.................................................51
Section 6.08. Collection Suit by Trustee....................................................................51
Section 6.09. Trustee May File Proofs of Claim..............................................................51
Section 6.10. Priorities....................................................................................52
Section 6.11. Undertaking for Costs.........................................................................53
ARTICLE 7. TRUSTEE...............................................................................................53
Section 7.01. Duties of Trustee.............................................................................53
Section 7.02. Rights of Trustee.............................................................................54
Section 7.03. Individual Rights of Trustee..................................................................55
Section 7.04. Trustee's Disclaimer..........................................................................55
Section 7.05. Notice of Defaults............................................................................55
Section 7.06. Reports by Trustee to Holders of the Notes....................................................56
Section 7.07. Compensation and Indemnity....................................................................56
Section 7.08. Replacement of Trustee........................................................................57
Section 7.09. Successor Trustee by Merger, etc..............................................................58
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Section 7.10. Eligibility; Disqualification.................................................................58
Section 7.11. Preferential Collection of Claims Against Company.............................................58
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................................58
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance......................................58
Section 8.02. Legal Defeasance and Discharge................................................................59
Section 8.03. Covenant Defeasance...........................................................................59
Section 8.04. Conditions to Legal or Covenant Defeasance....................................................60
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions................................................................61
Section 8.06. Repayment to Company..........................................................................62
Section 8.07. Reinstatement.................................................................................62
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER......................................................................62
Section 9.01. Without Consent of Holders of Notes...........................................................62
Section 9.02. With Consent of Holders of Notes..............................................................63
Section 9.03. Compliance with Trust Indenture Act...........................................................65
Section 9.04. Revocation and Effect of Consents.............................................................65
Section 9.05. Notation on or Exchange of Notes..............................................................65
Section 9.06. Trustee to Sign Amendments, etc...............................................................65
ARTICLE 10. SUBORDINATION........................................................................................65
Section 10.01. Agreement to Subordinate.....................................................................65
Section 10.02. Liquidation; Dissolution; Bankruptcy.........................................................66
Section 10.03. Default on Designated Senior Debt............................................................66
Section 10.04. Acceleration of Notes........................................................................67
Section 10.05. When Distribution Must be Paid Over..........................................................67
Section 10.06. Notice By Company............................................................................68
Section 10.07. Subrogation..................................................................................68
Section 10.08. Relative Rights..............................................................................68
Section 10.09. Subordination May Not Be Impaired by Company.................................................68
Section 10.10. Distribution or Notice to Representative.....................................................69
Section 10.11. Rights of Trustee and Paying Agent...........................................................69
Section 10.12. Authorization to Effect Subordination........................................................69
Section 10.13. Amendments...................................................................................69
ARTICLE 11. SUBSIDIARY GUARANTEES................................................................................70
Section 11.01. Subsidiary Guarantee.........................................................................70
Section 11.02. Subordination................................................................................71
Section 11.03. Liquidation; Dissolution; Bankruptcy.........................................................71
Section 11.04. Default on Senior Debt of the Guarantor......................................................72
Section 11.05. Acceleration of Notes........................................................................73
Section 11.06. When Distribution Must Be Paid Over..........................................................73
Section 11.07. Notice by a Guarantor........................................................................73
Section 11.08. Subrogation..................................................................................74
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Section 11.09. Relative Rights..............................................................................74
Section 11.10. Subordination May Not Be Impaired By Any Guarantor...........................................74
Section 11.11. Distribution or Notice to Representative.....................................................74
Section 11.12. Rights of Trustee and Paying Agent...........................................................75
Section 11.13. Authorization to Effect Subordination........................................................75
Section 11.14. Amendments...................................................................................75
Section 11.15. Limitation of Guarantor's Liability..........................................................75
Section 11.16. Restricted Subsidiaries May Consolidate, etc., on Certain Terms..............................76
Section 11.17. Releases Following Sale of Assets or Designation as Unrestricted Subsidiary..................76
ARTICLE 12. MISCELLANEOUS........................................................................................77
Section 12.01. Trust Indenture Act Controls.................................................................77
Section 12.02. Notices......................................................................................77
Section 12.03. Communication by Holders of Notes with Other Holders of Notes................................78
Section 12.04. Certificate and Opinion as to Conditions Precedent...........................................78
Section 12.05. Statements Required in Certificate or Opinion................................................79
Section 12.06. Rules by Trustee and Agents..................................................................79
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.....................79
Section 12.08. Governing Law................................................................................79
Section 12.09. No Adverse Interpretation of Other Agreements................................................80
Section 12.10. Successors...................................................................................80
Section 12.11. Severability.................................................................................80
Section 12.12. Counterpart Originals........................................................................80
Section 12.13. Table of Contents, Headings, etc.............................................................80
</TABLE>
EXHIBITS
Exhibit A.........FORM OF NOTE
Exhibit B.........FORM OF SUPPLEMENTAL INDENTURE
Exhibit C.........FORM OF NOTATION ON NOTE RELATING TO GUARANTEE
Exhibit D.........CERTIFICATE OF TRANSFEROR
Exhibit E.........PURCHASER LETTER
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8 1/4% Senior Subordinated Notes due 2011
INDENTURE
Dated as of April 26, 1999
among
IRON MOUNTAIN INCORPORATED,
THE RESTRICTED SUBSIDIARIES
and
THE BANK OF NEW YORK, as Trustee
<PAGE>
INDENTURE dated as of April 26, 1999 among Iron Mountain
Incorporated, a Delaware corporation (the "Company"), the Restricted
Subsidiaries signatories hereto and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee").
The Company, the Restricted Subsidiaries signatory hereto and
the Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 8 1/4% Senior Subordinated Notes due 2011:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person,
(a) Indebtedness of any other Person existing at the time such other Person
merged with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person
and (b) Indebtedness encumbering any asset acquired by such specified Person.
"Acquisition EBITDA" means, as of any date of determination,
with respect to an Acquisition EBITDA Entity, the sum of (a) EBITDA of such
Acquisition EBITDA Entity for its last fiscal quarter for which financial
statements are available at such date of determination (adjusted to give pro
forma effect to any acquisition or disposition of a business or Person by such
Acquisition EBITDA Entity consummated during the period covered by, or after the
date of, such quarterly financial statements), multiplied by four (or if such
quarterly statements are not available, EBITDA for the most recent fiscal year
for which financial statements are available), plus (b) projected quantifiable
improvements in operating results (on an annualized basis) due to cost
reductions calculated in good faith by the Company or one of its Restricted
Subsidiaries, as certified by an Officers' Certificate filed with the Trustee,
without giving effect to any operating losses of the acquired Person.
"Acquisition EBITDA Entity" means, as of any date of
determination, a business or Person (a) which has been acquired by the Company
or one of its Restricted Subsidiaries and with respect to which financial
results on a consolidated basis with the Company have not been made available
for an entire fiscal quarter or (b) which is to be acquired in whole or in part
with Indebtedness, the incurrence of which will require the calculation on such
date of the Acquisition EBITDA of such Acquisition EBITDA Entity for purposes of
Section 4.09 hereof.
"Adjusted EBITDA" means, as of any date of determination and
without duplication, the sum of (a) EBITDA of the Company and its Restricted
Subsidiaries for the most recent fiscal quarter for which internal financial
statements are available at such date of determination, multiplied by four, and
(b) Acquisition EBITDA of each business or Person that is an Acquisition EBITDA
Entity as of such date of determination, multiplied by a fraction, (i)
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the numerator of which is three minus the number of months (and/or any portion
thereof ) in such most recent fiscal quarter for which the financial results of
such Acquisition EBITDA Entity are included in the EBITDA of the Company and its
Restricted Subsidiaries under clause (a) above, and (ii) the denominator of
which is three. The effects of unusual or non-recurring items in respect of the
Company, a Restricted Subsidiary or an Acquisition EBITDA Entity occurring in
any period shall be excluded in the calculation of Adjusted EBITDA.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, will mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided,
however, that beneficial ownership of 10% or more of the voting securities of a
Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, as of the time of determination, the greater of (a) the fair
market value of the property subject to such arrangement (as determined by the
Board of Directors of the Company) and (b) the present value (discounted at the
rate of interest implicit in such transaction) of the total obligations of the
lessee for rental payments during the remaining terms of the lease included in
such Sale and Leaseback Transaction (including any period for which such lease
has been extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company, or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be so required to be capitalized on the
balance sheet in accordance with GAAP.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, including, without limitation, with respect to partnerships, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"Cash Equivalents" means (a) securities with maturities of one
year or less from the date of acquisition, issued, fully guaranteed or insured
by the United States Government or
2
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any agency thereof, (b) certificates of deposit, time deposits, overnight bank
deposits, bankers acceptances and repurchase agreements issued by a Qualified
Issuer having maturities of 270 days or less from the date of acquisition, (c)
commercial paper of an issuer rated at least A-2 by Standard & Poor's Rating
Group, a division of McGraw Hill, Inc., or P-2 by Moody's Investors Service, or
carrying an equivalent rating by a nationally recognized rating agency if both
of the two named rating agencies cease publishing ratings of investments and
having maturities of 270 days or less from the date of acquisition, (d) money
market accounts or funds with or issued by Qualified Issuers and (e) Investments
in money market funds substantially all of the assets of which are comprised of
securities and other obligations of the types described in clauses (a) through
(c) above.
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), other than
the Principal Stockholders (or any of them), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of more than a
majority of the voting power of all classes of Voting Stock of
the Company;
(b) the Company consolidates with, or merges with or
into, another Person or conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets
to any Person, or any Person consolidates with, or merges with
or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where (i) the
outstanding Voting Stock of the Company is not converted or
exchanged at all (except to the extent necessary to reflect a
change in the jurisdiction of incorporation) or is converted
into or exchanged for (A) Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person or
(B) cash, securities and other property (other than Capital
Stock described in the foregoing clause (A)) of the surviving
or transferee Person in an amount that could be paid as a
Restricted Payment pursuant to Section 4.07 hereof and (ii)
immediately after such transaction, no "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Principal Stockholders (or any
of them), is the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of
more than a majority of the total outstanding Voting Stock of
the surviving or transferee Person;
(c) during any consecutive two-year period,
individuals who at the beginning of such period constituted
the Board of Directors (together with any new directors whose
election to such Board of Directors, or whose nomination for
election by the stockholders of the Company, was approved by a
vote of 66 2/3% of the directors then still in office who were
either directors at the beginning of such period or whose
election or nomination for election was previously so
approved)
3
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cease for any reason to constitute a majority of the Board of
Directors then in office; or
(d) the Company is liquidated or dissolved or adopts
a plan of liquidation or dissolution other than in a
transaction which complies with the provisions of Section 5.01
hereof.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Consolidated Adjusted Net Income" means, for any period, the
net income (or net loss) of the Company and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted
to the extent included in calculating such net income or loss by excluding (a)
any net after-tax extraordinary gains or losses (less all fees and expenses
relating thereto), (b) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to Asset Sales, (c) the portion of net
income (or loss) of any Person (other than the Company or a Restricted
Subsidiary), including Unrestricted Subsidiaries, in which the Company or any
Restricted Subsidiary has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to the Company or any
Restricted Subsidiary in cash dividends or distributions by such Person during
such period, and (d) the net income (or loss) of any Person combined with the
Company or any Restricted Subsidiary on a "pooling of interests" basis
attributable to any period prior to the date of combination.
"Consolidated Income Tax Expense" means, for any period, the
provision for federal, state, local and foreign income taxes of the Company and
its Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the amount which, in conformity with GAAP, would be
set forth opposite the caption "interest expense" (or any like caption) on a
consolidated statement of operations of the Company and its Restricted
Subsidiaries for such period, including, without limitation, (i) amortization of
debt discount, (ii) the net cost of interest rate contracts (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation, (iv) amortization of debt issuance costs and (v) the interest
component of Capital Lease Obligations of the Company and its Restricted
Subsidiaries, plus (b) all interest on any Indebtedness of any other Person
guaranteed and paid by the Company or any of its Restricted Subsidiaries;
provided, however, that Consolidated Interest Expense will not include any gain
or loss from extinguishment of debt, including write-off of debt issuance costs.
"Consolidated Non-Cash Charges" means, for any period, the
aggregate depreciation, amortization and other non-cash expenses of the Company
and its Restricted Subsidiaries (including without limitation any minority
interest) reducing Consolidated Adjusted Net Income for such period, determined
on a consolidated basis in accordance with GAAP (excluding any such non-cash
charge that requires an accrual of or reserve for cash charges for any future
period).
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"Corporate Trust Office of the Trustee" will be at the address
of the Trustee specified in Section 12.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"Credit Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the lenders party to the Credit Agreement, or any
successor or successors party thereto.
"Credit Agreement" means that certain Second Amended and
Restated Credit Agreement dated as of September 26, 1997, as amended, among the
Company, 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.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Definitive Note" means a Note that evidences a part of the
Notes and is authenticated and delivered to, and registered in the name of the
Holder thereof, in the form of the Note attached hereto as Exhibit A, that does
not contain the paragraph referred to in footnotes 1, 2 and 3 and the additional
schedule referred to in footnote 4 thereof.
"Depositary" means, with respect to Notes issuable in whole or
in part in the form of the Global Note, a clearing agency registered under the
Exchange Act that is designated to act as Depositary for such Notes as
contemplated by Section 2.01.
"Designated Senior Debt" means (a) Senior Bank Debt and (b)
other Senior Debt the principal amount of which is $50.0 million or more at the
date of designation by the Company in a written instrument delivered to the
Trustee; provided that Senior Debt designated as Designated Senior Debt pursuant
to clause (b) shall cease to be Designated Senior Debt at any time that the
aggregate principal amount thereof outstanding is $10.0 million or less.
"Disqualified Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, for cash or other property (other than Capital Stock
that is not Disqualified Stock) pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the Holder thereof, in whole or in
part, in each case on or prior to the stated maturity of the Notes.
"distribution" means, for purposes of Articles 10 and 11, a
distribution consisting of cash, securities or other property, by set-off or
otherwise.
"Dollars" and "$" mean lawful money of the United States of
America.
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"DTC" means The Depository Trust Company.
"EBITDA" means for any period Consolidated Adjusted Net Income
for such period increased by (a) Consolidated Interest Expense for such period,
plus (b) Consolidated Income Tax Expense for such period, plus (c) Consolidated
Non-Cash Charges for such period.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Proceeds" means (a) with respect to Equity Interests
(or debt securities converted into Equity Interests) issued or sold for cash
Dollars, the aggregate amount of such cash Dollars and (b) with respect to
Equity Interests (or debt securities converted into Equity Interests) issued or
sold for any consideration other than cash Dollars, the aggregate Market Price
thereof computed on the date of the issuance or sale thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange Series B Notes
for Series A Notes.
"Excluded Restricted Subsidiary" means any Restricted
Subsidiary organized under the laws of a jurisdiction other than the United
States (as defined in Regulation S under the Securities Act) and which has not
delivered a Subsidiary Guarantee.
"Existing Indebtedness" means Indebtedness of the Company and
its Subsidiaries (other than under the Credit Agreement) in existence on the
date of this Indenture, until such amounts are repaid.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date of this Indenture.
"Global Note" means a Note that evidences all or part of the
Notes and is authenticated and delivered to, and registered in the name of, the
Depositary for the Notes or a nominee thereof, in the form of the Note attached
hereto as Exhibit A, that contains the paragraph referred to in footnotes 1, 2
and 3 and the additional schedule referred to in footnote 4 thereof.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged.
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"Guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (b) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
obligation to reimburse amounts drawn down under letters of credit securing such
obligations.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (b) other agreements
or arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Note is registered.
"IAI" means an institutional "accredited investor" as defined
in Rule 501(A)(1), (2), (3) or (7) of Regulation D under the Securities Act.
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such
Person, and whether or not contingent, (a) every obligation of such Person for
money borrowed, (b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, (c) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (d)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services, (e) every Capital Lease Obligation and every obligation
of such Person in respect of Sale and Leaseback Transactions that would be
required to be capitalized on the balance sheet in accordance with GAAP, (f) all
Disqualified Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price, plus accrued and unpaid dividends
(unless included in such maximum repurchase price), (g) all obligations of such
Person under or with respect to Hedging Obligations which would be required to
be reflected on the balance sheet as a liability of such Person in accordance
with GAAP and (h) every obligation of the type referred to in clauses (a)
through (g) of another Person and dividends of another Person the payment of
which, in either case, such Person has guaranteed. For purposes of this
definition, the "maximum fixed repurchase price" of any Disqualified Stock that
does not have a fixed repurchase price will be calculated in accordance with the
terms of such Disqualified Stock as if such Disqualified Stock were repurchased
on any date on which Indebtedness is required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Stock, such fair market value will be determined in
good faith by the board of directors of the issuer of such Disqualified Stock.
Notwithstanding the foregoing, trade accounts payable and accrued liabilities
arising in the ordinary course of business and any liability for federal, state
or local taxes or other taxes owed by such Person will not be considered
Indebtedness for purposes of this definition. The amount outstanding at any time
of any Indebtedness issued with original issue discount is the aggregate
principal amount at maturity of
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<PAGE>
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 or supplemented
from time to time.
"Initial Purchasers" means Bear, Stearns & Co. Inc., Chase
Securities Inc., BNY Capital Markets, Inc., Fleet Securities, Inc., Prudential
Securities Incorporated and Scotia Capital Markers (USA) Inc.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP.
"Issuance Date" means the closing date for the sale and
original issuance of the Series A Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest will
accrue for the intervening period.
"Leverage Ratio" means, at any date, the ratio of (a) the
aggregate principal amount of Indebtedness of the Company and its Restricted
Subsidiaries outstanding as of the most recent available quarterly or annual
balance sheet to (b) Adjusted EBITDA, after giving pro forma effect, without
duplication, to (i) the incurrence, repayment or retirement of any Indebtedness
by the Company or its Restricted Subsidiaries since the last day of the most
recent full fiscal quarter of the Company, (ii) if the Leverage Ratio is being
determined in connection with the incurrence of Indebtedness by the Company or a
Restricted Subsidiary, such Indebtedness to be incurred, and (iii) the
Indebtedness to be incurred in connection with the acquisition of any
Acquisition EBITDA Entity.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code, or equivalent statutes, of any
jurisdiction).
"Liquidated Damages" has the meaning set out in the
Registration Rights Agreement.
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"Make-Whole Amount" means, with respect to any Note, an amount
equal to the excess, if any, of (a) the present value of the remaining
principal, premium and interest payments that would be payable with respect to
such Note if such Note were redeemed on July 1, 2004, computed using a discount
rate equal to the Treasury Rate plus 75 basis points, over (b) the outstanding
principal amount of such Note.
"Make-Whole Average Life" means, with respect to any date of
redemption of Notes, the number of years (calculated to the nearest one-twelfth)
from such redemption date to July 1, 2004.
"Make-Whole Price" means, with respect to any Note, the
greater of (a) the sum of the principal amount of and Make-Whole Amount with
respect to such Note, and (b) the redemption price of such Note on July 1, 2004.
"Market Price" means, (a) with respect to the calculation of
Equity Proceeds from the issuance or sale of debt securities which have been
converted into Equity Interests, the value received upon the original issuance
or sale of such converted debt securities, as determined reasonably and in good
faith by the Board of Directors, and (b) with respect to the calculation of
Equity Proceeds from the issuance or sale of Equity Interests, the average of
the daily closing prices for such Equity Interests for the 20 consecutive
trading days preceding the date of such computation. The closing price for each
day will be (a) such closing price on the NYSE Consolidated Tape (or any
successor consolidated tape reporting transactions on the New York Stock
Exchange) or, if such composite tape is not in use or does not report
transactions in such Equity Interests, or if such Equity Interests are listed on
a stock exchange other than the New York Stock Exchange (including for this
purpose the Nasdaq National Market), the last reported sale price regular way
for such day, or in case no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for such day, in each
case on the principal national securities exchange on which such Equity
Interests are listed or admitted to trading (which will be the national
securities exchange on which the greatest number of such Equity Interests have
been traded during such 20 consecutive trading days), or (b) if such Equity
Interests are not listed or admitted to trading on any such exchange, the
average of the closing bid and asked prices thereof in the over-the-counter
market as reported by the National Association of Securities Dealers Automated
Quotation System or any successor system, or if not included therein, the
average of the closing bid and asked prices thereof furnished by two members of
the National Association of Securities Dealers selected reasonably and in good
faith by the Board of Directors for that purpose. In the absence of one or more
such quotations, the Market Price for such Equity Interests will be determined
reasonably and in good faith by the Board of Directors.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale,
which amount is equal to the excess, if any, of (a) the cash received by the
Company or such Restricted Subsidiary (including any cash payments received by
way of deferred payment pursuant to, or monetization of, a note or installment
receivable or otherwise, but only as and when received) in connection with such
disposition over (b) the sum of (i) the amount of any Indebtedness which is
secured by such asset
9
<PAGE>
and which is required to be repaid in connection with the disposition thereof,
plus (ii) the reasonable out-of-pocket expenses incurred by the Company or such
Restricted Subsidiary, as the case may be, in connection with such disposition
or in connection with the transfer of such amount from such Restricted
Subsidiary to the Company, plus (iii) provisions for taxes, including income
taxes, attributable to the disposition of such asset or attributable to required
prepayments or repayments of Indebtedness with the proceeds thereof, plus (iv)
if the Company does not first receive a transfer of such amount from the
relevant Restricted Subsidiary with respect to the disposition of an asset by
such Restricted Subsidiary and such Restricted Subsidiary intends to make such
transfer as soon as practicable, the out-of-pocket expenses and taxes that the
Company reasonably estimates will be incurred by the Company or such Restricted
Subsidiary in connection with such transfer at the time such transfer is
expected to be received by the Company (including, without limitation,
withholding taxes on the remittance of such amount).
"1996 Indenture" means the Indenture dated as of October 1,
1996 among the Company, the Restricted Subsidiaries parties thereto as
guarantors and First Bank National Association, as trustee, pursuant to which
the 1996 Notes were issued.
"1996 Notes" means the 10 1/8% Senior Subordinated Notes due
2006 issued under the 1996 Indenture.
"1997 Indenture" means the Indenture dated as of October 24,
1997 among the Company, the Restricted Subsidiaries parties thereto as
guarantors and The Bank of New York, as trustee, pursuant to which the 1997
Notes were issued.
"1997 Notes" means the 8 3/4% Senior Subordinated Notes due
2009 issued under the 1997 Indenture.
"Notes" means, collectively, the Series A Notes and the Series
B Notes.
"Obligations" means any principal, interest (including
post-petition interest, whether or not allowed as a claim in any proceeding),
penalties, fees, costs, expenses, indemnifications, reimbursements, damages and
other liabilities payable under or in connection with any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed, unless
otherwise specified, by any two of the Chairman of the Board, a Vice Chairman of
the Board, the President, the Chief Financial Officer, the Controller or an
Executive Vice President of the Company, and delivered to the Trustee, that
meets the requirements of Section 12.05 hereof.
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"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Permitted Investments" means (a) any Investments in the
Company or in a Restricted Subsidiary (other than an Excluded Restricted
Subsidiary) of the Company, including without limitation the Guarantee of
Indebtedness permitted under Section 4.09 hereof; (b) any Investments in Cash
Equivalents; (c) Investments by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment (i) such Person becomes a
Restricted Subsidiary (other than an Excluded Restricted Subsidiary) of the
Company or (ii) such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary (other than an Excluded Restricted
Subsidiary) of the Company; (d) Investments in assets (including accounts and
notes receivable) owned or used in the ordinary course of business; (e)
Investments for any purpose related to the Company's records management business
(including, without limitation, the Company's outsourcing and staffing
businesses) in an aggregate outstanding principal amount not to exceed $10.0
million; and (f) Investments by the Company or a Restricted Subsidiary (other
than an Excluded Restricted Subsidiary) in one or more Excluded Restricted
Subsidiaries, the aggregate outstanding amount of which does not exceed 10% of
the consolidated assets of the Company and its Restricted Subsidiaries.
"Permitted Liens" means:
(a) Liens existing as of the Issuance Date;
(b) Liens on property or assets of the Company or any
Restricted Subsidiary securing Senior Debt;
(c) Liens on any property or assets of a Restricted
Subsidiary granted in favor of the Company or any Wholly Owned
Restricted Subsidiary;
(d) Liens securing the Notes or the Subsidiary
Guarantees;
(e) any interest or title of a lessor under any
Capital Lease Obligation or Sale and Leaseback Transaction so
long as the Indebtedness, if any, secured by such Lien does
not exceed the principal amount of Indebtedness permitted
under Section 4.09 hereof;
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(f) Liens securing Acquired Debt created prior to
(and not in connection with or in contemplation of) the
incurrence of such Indebtedness by the Company or any
Restricted Subsidiary; provided that such Lien does not extend
to any property or assets of the Company or any Restricted
Subsidiary other than the assets acquired in connection with
the incurrence of such Acquired Debt;
(g) Liens securing Hedging Obligations permitted to
be incurred pursuant to clause (g) of Section 4.09 hereof;
(h) Liens arising from purchase money mortgages and
purchase money security interests, or in respect of the
construction of property or assets, incurred in the ordinary
course of the business of the Company or a Restricted
Subsidiary; provided that (i) the related Indebtedness is not
secured by any property or assets of the Company or any
Restricted Subsidiary other than the property and assets so
acquired or constructed and (ii) the Lien securing such
Indebtedness is created within 60 days of such acquisition or
construction;
(i) statutory Liens or landlords' and carriers',
warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other like Liens arising in the ordinary course
of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate proceedings, if a
reserve or other appropriate provision, if any, as is then
required in conformity with GAAP has been made therefor;
(j) Liens for taxes, assessments, government charges
or claims with respect to amounts not yet delinquent or that
are being contested in good faith by appropriate proceedings
diligently conducted, if a reserve or other appropriate
provision, if any, as is required in conformity with GAAP has
been made therefor;
(k) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory obligations,
surety and appeal bonds, government contracts, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business (other than contracts for the
payment of money);
(l) easements, rights-of-way, restrictions and other
similar charges or encumbrances not interfering in any
material respect with the business of the Company or any
Restricted Subsidiary incurred in the ordinary course of
business;
(m) Liens arising by reason of any judgment, decree
or order of any court so long as such Lien is adequately
bonded and any appropriate legal proceedings that may have
been duly initiated for the review of such judgment, decree or
order shall not have been finally terminated or the period
within which such proceedings may be initiated shall not have
expired;
(n) Liens arising under options or agreements to sell
assets;
(o) other Liens securing obligations incurred in the
ordinary course of business, which obligations do not exceed
$10.0 million in the aggregate at any one time outstanding;
and
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<PAGE>
(p) any extension, renewal or replacement, in whole
or in part, of any Lien described in the foregoing clauses (a)
through (o); provided that any such extension, renewal or
replacement does not extend to any additional property or
assets.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or any government or any agency or political
subdivision thereof.
"Principal Stockholders" means each of Vincent J. Ryan,
Schooner Capital LLC, C. Richard Reese, Kent P. Dauten, B. Thomas Golisano,
Eugene B. Doggett and their respective Affiliates.
"QIB" means "qualified institutional buyer" as defined in Rule
144A.
"Qualified Equity Offering" means an offering of Capital
Stock, other than Disqualified Stock, of the Company for Dollars, whether
registered or exempt from registration under the Securities Act.
"Qualified Issuer" means (a) any lender party to the Credit
Agreement or (b) any commercial bank (i) which has capital and surplus in excess
of $500,000,000 and (ii) the outstanding short-term debt securities of which are
rated at least A-2 by Standard & Poor's Rating Group, a division of McGraw-Hill,
Inc. or at least P-2 by Moody's Investors Service, or carry an equivalent rating
by a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments.
"Qualifying Sale and Leaseback Transaction" means any Sale and
Leaseback Transaction between the Company or any of its Restricted Subsidiaries
and any bank, insurance company or other lender or investor providing for the
leasing to the Company or such Restricted Subsidiary of any property (real or
personal) which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor and where the
property in question has been constructed or acquired after the date of this
Indenture.
"Refinancing Indebtedness" means new Indebtedness incurred or
given in exchange for, or the proceeds of which are used to repay, redeem,
defease, extend, refinance, renew, replace or refund, other Indebtedness;
provided, however, that (a) the principal amount of such new Indebtedness shall
not exceed the principal amount of Indebtedness so repaid, redeemed, defeased,
extended, refinanced, renewed, replaced or refunded (plus the amount of fees,
premiums, consent fees, prepayment penalties and expenses incurred in connection
therewith); (b) such Refinancing Indebtedness shall have a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity of
the Indebtedness so repaid, redeemed, defeased, extended, refinanced, renewed,
replaced or refunded or shall mature after the maturity date of the Notes; (c)
to the extent such Refinancing Indebtedness refinances Indebtedness that has a
final maturity date occurring after the maturity date of the Notes, such new
Indebtedness shall have a final scheduled
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maturity not earlier than the final scheduled maturity of the Indebtedness so
repaid, redeemed, defeased, extended, refinanced, renewed, replaced or refunded
and shall not permit redemption at the option of the holder earlier than the
earliest date of redemption at the option of the holder of the Indebtedness so
repaid, redeemed, defeased, extended, refinanced, renewed, replaced or refunded;
(d) to the extent such Refinancing Indebtedness refinances Indebtedness
subordinate to the Notes, such Refinancing Indebtedness shall be subordinated in
right of payment to the Notes and to the extent such Refinancing Indebtedness
refinances Notes or Indebtedness pari passu with the Notes, such Refinancing
Indebtedness shall be pari passu with or subordinated in right of payment to the
Notes, in each case on terms at least as favorable to the holders of Notes as
those contained in the documentation governing the Indebtedness so repaid,
redeemed, defeased, extended, refinanced, renewed, replaced or refunded; and (e)
with respect to Refinancing Indebtedness incurred by a Restricted Subsidiary,
such Refinancing Indebtedness shall rank no more senior, and shall be at least
as subordinated, in right of payment to the Subsidiary Guarantee of such
Restricted Subsidiary as the Indebtedness being repaid, redeemed, defeased,
extended, refinanced, renewed, replaced or refunded.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issuance Date, by and among the Company, the
Guarantors and the Initial Purchasers, as amended or supplemented from time to
time.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means, for purposes of Articles 10 and 11,
the Credit Agent or other agent, trustee or representative for any Senior Debt
of the Company or, with respect to any Restricted Subsidiary, for any Senior
Debt of such Restricted Subsidiary.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Securities" means Notes that bear or are required
to bear the legends set forth in Exhibit A hereto.
"Restricted Subsidiary" means (a) each direct or indirect
Subsidiary of the Company, other than Iron Mountain Global, Inc. and its
Subsidiaries (including Britannia Data Management Limited and its Subsidiaries),
existing on the date of this Indenture and (b) any other direct or indirect
Subsidiary of the Company formed, acquired or existing after the date of this
Indenture (including any Excluded Restricted Subsidiaries), which in the case of
(a) or (b), is not designated by the Board of Directors as an "Unrestricted
Subsidiary."
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"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"Sale and Leaseback Transaction" means any transaction or
series of related transactions pursuant to which a Person sells or transfers any
property or asset in connection with the leasing, or the resale against
installment payments, of such property or asset to the seller or transferor.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Bank Debt" means all Obligations outstanding under or
in connection with the Credit Agreement (including Guarantees of such
Obligations by Subsidiaries of the Company).
"Senior Debt" means (a) the Senior Bank Debt and (b) any other
Indebtedness permitted to be incurred by the Company or any Restricted
Subsidiary, as the case may be, under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Notes or
subordinated to Senior Debt on terms substantially similar to those of the
Notes. 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
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 A Notes" means the Company's 8 1/4% Series A Senior
Subordinated Notes due 2011, as amended or supplemented from time to time
pursuant to the terms hereof, that are issued under this Indenture.
"Series B Notes" means the Company's 8 1/4% Series B Senior
Subordinated Notes due 2011, as amended or supplemented from time to time
pursuant to the terms hereof, that are issued under this Indenture.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person or a
combination thereof.
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"Subsidiary Guarantee" means a Guarantee of a Guarantor
pursuant to Article 11 hereof.
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03.
"Treasury Rate" means, at any time of computation, the yield
to maturity at such time (as compiled by and published in the most recent
Federal Reserve Statistical Release H.15(519), which has become publicly
available at least two business days prior to the date of the redemption notice
or if such Statistical Release is no longer published, any publicly available
source of similar market data) of United States Treasury securities with a
constant maturity most nearly equal to the Make-Whole Average Life; provided,
however, that if the Make-Whole Average Life is not equal to the constant
maturity of the United States Treasury security for which a weekly average yield
is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given, except
that if the Make-Whole Average Life is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary in accordance
with Section 4.17 hereof and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. person" means U.S. person as defined in Regulation S.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes has, or might have, voting power by reason
of the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary of the Company all of the outstanding Capital Stock or other
ownership interests of which (other than
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director's qualifying shares) shall at
the time be owned by the Company or by one of more Wholly Owned Restricted
Subsidiaries of the Company.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"................................4.11
"Asset Sale"...........................................4.10
"Asset Sale Offer".....................................4.10
"Benefited Party".....................................11.01
"Change of Control Offer"..............................4.14
"Change of Control Payment"............................4.14
"Change of Control Payment Date".......................4.14
"Covenant Defeasance"..................................8.03
"Commencement Date"....................................4.10
"Company Order"........................................2.02
"Event of Default".....................................6.01
"Excess Proceeds"......................................4.10
"Guarantor"...........................................11.01
"incur"................................................4.09
"Legal Defeasance" ....................................8.02
"Non-Monetary Default"................................10.03
"Offer Amount".........................................3.09
"Offer Period".........................................3.09
"Paying Agent".........................................2.03
"Payment Blockage Notice".............................10.03
"Payment Default".....................................10.03
"Purchase Date"........................................3.09
"Registrar"............................................2.03
"Restricted Payments"..................................4.07
"Separation Date"......................................2.06
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture,
other than those provisions of the TIA that may be excluded herein, which
provision shall be excluded to the extent specifically excluded in this
Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes and the Subsidiary
Guarantees, if any;
"indenture security holder" means a Holder of a Note;
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"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company, the Guarantors and
any successor obligor upon the Notes or any Subsidiary Guarantee, as the case
may be.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule or
regulation promulgated by the SEC under the TIA have the meanings so assigned to
them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act or the Exchange Act shall be deemed to include substitute,
replacement or successor sections or rules adopted by the SEC from time
to time.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The notation on each Note
relating to the Subsidiary Guarantees shall be substantially in the form set
forth on Exhibit C, which is part of this Indenture. The Notes may have
notations, legends or endorsements approved as to form by the Company and
required by law, stock exchange rule, agreements to which the Company or each
Restricted Subsidiary is subject, or usage. Each Note shall be dated the date of
its authentication. The Notes shall be issuable only in denominations of $1,000
and integral multiples thereof.
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The Notes shall, in accordance with the following provisions,
be issuable (i) in whole or in part in the form of the Global Note and, in such
case, the Depositary for such Global Note shall be designated by the Company in
an Officers' Certificate delivered to the Trustee on or prior to the Issuance
Date and (ii) in definitive form in the form of one or more Definitive Notes.
The Global Note shall represent the aggregate amount of outstanding Notes of all
Holders other than, in the case of Notes that are Restricted Securities, Holders
that are IAIs, from time to time endorsed thereon; provided, that the aggregate
amount of outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions. In the case
of Notes that are Restricted Securities, Definitive Notes shall be issued to all
Holders that are IAIs in the aggregate amount of outstanding Notes held by such
Holders. Any endorsement of the Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof. Every Global Note
authenticated and delivered hereunder will bear a legend substantially in the
form thereof set forth on Exhibit A hereto.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the
Company by manual or facsimile signature. The Company's seal shall be reproduced
on the Notes and may be in facsimile form. An Officer of each Guarantor shall
sign the Subsidiary Guarantee for such Guarantor by manual or facsimile
signature.
If an Officer of the Company or a Guarantor whose signature is
on a Note or a Subsidiary Guarantee, as the case may be, no longer holds that
office at the time the Note is authenticated, the Note or the Subsidiary
Guarantee, as the case may be, shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Note has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the Notes shall be
substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed
by two Officers of the Company (a "Company Order"), authenticate Notes for
original issue up to an aggregate principal amount stated in paragraph 4 of the
Notes. The aggregate principal amount of Notes outstanding at any time shall not
exceed $150,000,000 except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Company or any Guarantor or an Affiliate of
the Company or any Guarantor.
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SECTION 2.03. REGISTRAR, PAYING AGENT AND DEPOSITARY.
The Company shall maintain (i) an office or agency where Notes
may be presented for registration of transfer or for exchange (including any
co-registrar, the "Registrar") and (ii) an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent, Registrar or co-registrar without prior notice to any Holder of a Note.
The Company shall notify the Trustee and the Trustee shall notify the Holders of
the Notes of the name and address of any Agent not a party to this Indenture.
The Company or any Guarantor may act as Paying Agent, Registrar or co-registrar.
The Company shall enter into an appropriate agency agreement with any Agent not
a party to this Indenture, which shall be subject to any obligations imposed by
the provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
Section 7.07 hereof.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with the
Notes.
The Company initially appoints DTC to act as Depositary with
respect to the Global Note. The Trustee shall act as custodian for the
Depositary with respect to the Global Note.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Holders of the Notes or the Trustee all money held by the Paying
Agent for the payment of principal of, premium, if any, and interest on the
Notes, and shall promptly notify the Trustee of any Default by the Company or
the Guarantors in making any such payment. While any such Default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Guarantor) shall have no further liability for the money
delivered to the Trustee. If the Company or a Guarantor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
of the Notes, subject to Article 10 hereof, all money held by it as Paying
Agent. Upon any bankruptcy or reorganization proceeding relating to the Company
or a Guarantor, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. LISTS OF HOLDERS OF THE NOTES.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of the Notes and shall
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otherwise comply with TIA ss. 312(a). If the Trustee is not the Registrar, the
Company and/or the Guarantors shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders of the
Notes, including the aggregate principal amount of the Notes held by each
thereof, and the Company and each Guarantor shall otherwise comply with TIA ss.
312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar with a request (1) to register
the transfer of the Definitive Notes or (2) to exchange such Definitive Notes
for an equal principal amount of Definitive Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided that any
Definitive Notes presented or surrendered for registration of transfer or
exchange (A) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by the Holder
thereof or by his attorney duly authorized in writing; (B) unless the Global
Note has previously been exchanged in whole for Definitive Notes, shall only be
exchanged for an interest in the Global Note in accordance with Section 2.06(b)
if such Definitive Notes are being transferred (i) pursuant to an effective
registration statement under the Securities Act; (ii) to a QIB in reliance on
Rule 144A; or (iii) outside the United States to a non-U.S. person in reliance
on Regulation S; and (C) in the case of a Restricted Security, such request
shall be accompanied by the following additional documents: (i) if such
Restricted Security is being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification to
that effect (in substantially the form of Exhibit D attached hereto) and a
letter containing certain representations and agreements (in substantially the
form of Exhibit E attached hereto); or (ii) if such Restricted Security is being
transferred to an IAI in reliance on an exemption from the registration
requirements of the Securities Act, other than to a QIB in reliance on Rule 144A
or outside the United States to a non-U.S. person in reliance on Regulation S, a
certification to that effect (in substantially the form of Exhibit D attached
hereto), and a letter containing certain representations and agreements (in
substantially the form of Exhibit E attached hereto) and, if requested by the
Company or the Trustee, an opinion of counsel reasonably acceptable to the
Company and the Trustee to the effect that such transfer is in compliance with
the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial Interest in
the Global Note. A Definitive Note may be exchanged for a beneficial interest in
the Global Note only upon receipt by the Trustee of a Definitive Note, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with: (i) written instructions directing
the Trustee to make an endorsement on the Global Note to reflect an increase in
the aggregate principal amount of the Notes represented by the Global Note, and
(ii) if such Definitive Note is a Restricted Security, a certification (in
substantially the form of Exhibit D attached hereto) to the effect that such
Definitive Note is either being transferred to a QIB in reliance on Rule 144A or
outside the United States to a non-U.S. person in reliance on Regulation S; in
which case the Trustee shall cancel such Definitive Note and cause the
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aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Note is then outstanding, the Company shall
issue and the Trustee shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note. A beneficial interest in the Global Note may be exchanged for a
Definitive Note only in the case of a Restricted Security, and upon receipt by
the Trustee of written transfer instructions (or such other form of instructions
as is customary for the Depositary) from the Depositary (or its nominee) on
behalf of any Person having a beneficial interest in a Global Note that such
Restricted Security is being transferred to an IAI in reliance on an exemption
from the registration requirements of the Securities Act, other than to a QIB in
reliance on Rule 144A or outside the United States to a non-U.S. person in
reliance on Regulation S, provided however that such request is accompanied by a
certification to that effect (in substantially the form of Exhibit D attached
hereto) and a letter containing certain representations and agreements (in
substantially the form of Exhibit E attached hereto) and, if requested by the
Company or the Trustee, an opinion of counsel reasonably acceptable to the
Company and the Trustee to the effect that such transfer is in compliance with
the Securities Act, in which case the Trustee shall, in accordance with the
standing instructions and procedures existing between the Depositary and the
Trustee, cause the aggregate principal amount of the Global Note to be reduced
accordingly and, following such reduction, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the transferee a
Definitive Note in the appropriate principal amount.
Definitive Notes issued in exchange for a beneficial interest
in a Global Note shall be registered in such names and in such authorized
denominations as the Depositary shall instruct the Trustee.
(d) Transfer and Exchange of beneficial interests in the
Global Note. The transfer and exchange of beneficial interests in the Global
Note shall be effected through the Depositary in accordance with this Indenture
and the procedures of the Depositary therefor, which shall include restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act.
When a Global Note is presented to the Registrar with a
request (1) to register the transfer of the Global Note or (2) to exchange such
Global Notes for an equal principal amount of Notes of other denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met; provided, however, that any Note presented or
surrendered for registration of transfer or exchange (A) shall be duly endorsed
or accompanied by a written instruction of transfer in form satisfactory to the
Registrar and the Trustee duly executed by the Holder thereof or by his attorney
duly authorized in writing and (B) in the case of a Restricted Security, such
request shall be accompanied by the following additional documents: (i) if such
Restricted Security is being transferred to the Person designated by the
Depositary as being the beneficial owner, a certification to that effect (in
substantially the form of Exhibit D attached hereto), (ii) if such Restricted
Security is being transferred to a QIB in accordance with Rule 144A or pursuant
to an effective registration statement under the Securities
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Act, a certification to that effect (in substantially the form of Exhibit D
attached hereto), or (iii) if such Restricted Security is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the form of
Exhibit D attached hereto) and, if requested by the Company or the Trustee, an
opinion of counsel reasonably acceptable to the Company and to the Trustee to
the effect that such transfer is in compliance with the Securities Act. To
permit registrations of transfer and exchanges, the Company shall issue and the
Trustee shall authenticate Notes at the Registrar's request, subject to such
rules as the Trustee may reasonably require.
(e) Cancellation and/or Adjustment of the Global Note. At such
time as all beneficial interests in the Global Note have either been exchanged
for Definitive Notes, redeemed, repurchased or cancelled, the Global Note shall
be returned to or retained and cancelled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in the Global Note is exchanged
for Definitive Notes, redeemed, repurchased or cancelled, the aggregate
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
to reflect such reduction.
(f) General Provisions Relating to Transfers and Exchanges. To
permit registrations of transfers and exchanges effected in accordance with this
Indenture, the Company shall execute and the Trustee shall authenticate the
Global Note and any Definitive Notes at the Registrar's request. The Global Note
and any Definitive Notes issued upon any registration of transfer or exchange of
beneficial interests in the Global Note or the Definitive Notes shall be legal,
valid and binding obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Definitive Notes or
Global Notes surrendered upon such registration of transfer or exchange.
Neither the Company nor the Registrar shall be required to (a)
issue, register the transfer of or exchange Notes during a period beginning at
the opening of business on a Business Day 15 days before the day of mailing of
any notice of redemption of Notes under Section 3.02 hereof and ending at the
close of business on the day of such mailing or (b) register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
No service fee shall be charged to any Holder of a Note for
any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than such transfer tax or similar governmental charge payable
upon exchanges pursuant to Sections 2.10, 3.06 or 9.05 hereof, which shall be
paid by the Company).
Prior to due presentment to the Trustee for registration of
the transfer of any Note, the Trustee, any Agent, the Company and each Guarantor
may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal
of, premium, if any, and interest on such Note and for all other
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purposes whatsoever, whether or not such Note is overdue, and none of the
Trustee, any Agent, the Company or any Guarantor shall be affected by notice to
the contrary.
(g) General Provisions Relating to the Global Note.
Notwithstanding any other provision in this Indenture, no Global Note may be
transferred to, or registered or exchanged for Notes registered in the name of,
any Person other than the Depositary for such Global Note or any nominee
thereof, and no such transfer may be registered, unless (i) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Note or (B) ceases to be a clearing agency registered under the
Exchange Act, (ii) the Company delivers to the Trustee an Officers' Certificate
stating that such Global Note shall be so transferable, registrable, and
exchangeable, and such transfers shall be registrable, or (iii) there shall have
occurred and be continuing an Event of Default with respect to the Notes
evidenced by such Global Note. Notwithstanding any other provision in this
Indenture, a Global Note to which the restriction set forth in the preceding
sentence shall have ceased to apply may be transferred only to, and may be
registered and exchanged for Notes registered only in the name or names of, such
Person or Persons as the Depositary for such Global Note shall have directed and
no transfer thereof other than such a transfer may be registered. Every Note
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, a Global Note to which the restriction set forth in the first
sentence of this paragraph shall apply, whether pursuant to this Section 2.06 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Note.
(h) Exchange of Series A Notes for Series B Notes. The Series
A Notes may be exchanged for Series B Notes pursuant to the terms of the
Exchange Offer in accordance with the procedures set out under Section 2.16
hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the written order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note (accompanied by a notation of the
Subsidiary Guarantees duly endorsed by each Guarantor) if the Trustee's
requirements for replacements of Notes are met. An indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee, the
Company and the Guarantors to protect the Company, the Guarantors, the Trustee,
any Agent or any authenticating agent from any loss which any of them may suffer
if a Note is replaced. Each of the Company, the Guarantors and the Trustee may
charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and the Guarantors and shall be entitled to all of the benefits of this
Indenture equally and ratably with all other Notes duly issued hereunder.
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SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser. If the principal amount of any
Note is considered paid under Section 4.01 hereof, it ceases to be outstanding
and interest on it ceases to accrue. Subject to Section 2.09 hereof, a Note does
not cease to be outstanding because the Company, a Guarantor, a Subsidiary of
the Company or a Guarantor or an Affiliate of the Company or a Guarantor holds
the Note.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, any Guarantor, any of their respective Subsidiaries or any
Affiliate of the Company or any Guarantor shall be considered as though not
outstanding, except that for purposes of determining whether the Trustee shall
be protected in relying on any such direction, waiver or consent, only Notes
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so considered. Notwithstanding the foregoing, Notes that are to be acquired
by the Company, any Guarantor, any Subsidiary of the Company or any Guarantor or
an Affiliate of the Company or any Guarantor pursuant to an exchange offer,
tender offer or other agreement shall not be deemed to be owned by the Company,
such Guarantor, a Subsidiary of the Company or such Guarantor or an Affiliate of
the Company or such Guarantor until legal title to such Notes passes to the
Company, such Guarantor, such Subsidiary or such Affiliate, as the case may be.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes (accompanied by a
notation of the Subsidiary Guarantees duly endorsed by each Guarantor).
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company and the Trustee consider appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of the written order of the Company signed by two Officers
of the Company, shall authenticate definitive Notes (accompanied by a notation
of the Subsidiary Guarantees duly endorsed by each Guarantor) in exchange for
temporary Notes. Until such exchange, temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall return canceled
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Notes to the Company. The Company may not issue new Notes to replace Notes that
it has redeemed or paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company and the Guarantors default in a payment of
interest on the Notes, the Company or any such Guarantor (to the extent of its
obligations under its Subsidiary Guarantee) shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders of the Notes on a subsequent special
record date, which date shall be at the earliest practicable date but in all
events at least five Business Days prior to the payment date, in each case at
the rate provided in the Notes and in Section 4.01 hereof. The Company shall fix
or cause to be fixed each such special record date and payment date, and shall,
promptly thereafter, notify the Trustee of any such date. At least 15 days
before the special record date, the Company (or the Trustee, in the name of and
at the expense of the Company) shall mail to Holders of the Notes a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of
Holders of the Notes entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided for in TIA ss. 316(c).
SECTION 2.14. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number and,
if it does so, the Trustee shall use the CUSIP number in notices of redemption
or exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. The Company will
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.15. COMPUTATION OF INTEREST.
Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
SECTION 2.16. EXCHANGE OF SERIES A NOTES FOR SERIES B NOTES
The Series A Notes may be exchanged for Series B Notes
pursuant to the terms of the Exchange Offer. The Trustee and Registrar shall
make the exchange as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
(a) upon issuance of the Series B Notes, the transactions
contemplated by the Exchange Offer have been consummated;
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(b) the principal amount of Series A Notes properly tendered
in the Exchange Offer that are represented by a Global Note for Series
B Notes shall be registered and sent for each such Holder; and
(c) the principal amount of Series A Notes properly tendered
in the Exchange Offer that are represented by Definitive Notes, the
name of each Holder of such Definitive Notes, the principal amount at
maturity properly tendered in the Exchange Offer by each such Holder,
and the name and address to which Definitive Notes for Series B Notes
shall be registered and sent for each such Holder.
The Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series B Notes have been
registered under Section 5 of the Securities Act and this Indenture has been
qualified under the TIA and (iii) a Company Order, shall authenticate (A) a
Global Note for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of Series A Notes represented by a Global Note
indicated in such Officers' Certificate as having been properly tendered and (B)
Definitive Notes for Series B Notes in an aggregate principal amount equal to
the aggregate principal amount of Series A Notes registered in the names of the
Holders and represented by the Definitive Notes indicated in such Officers'
Certificate as having been properly tendered.
If the principal amount at maturity of the Global Note for the
Series B Notes is less than the principal amount at maturity of the Global Note
for the Series A Notes, the Trustee shall make an endorsement on such Global
Note for Series A Notes indicating a reduction in the principal amount at
maturity represented thereby.
The Trustee shall deliver such Definitive Notes for Series B
Notes to the Holders thereof as indicated in such Officers' Certificate.
SECTION 2.17. LEGENDS.
(a) Except as permitted by subsections (b) or (c) hereof, each
Note shall bear legends relating to restrictions on transfer pursuant to the
securities laws in substantially the form set forth on Exhibit A attached
hereto.
(b) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Note) pursuant to
Rule 144 under the Securities Act or pursuant to an effective registration
statement under the Securities Act: (i) in the case of any Restricted Security
that is a Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Restricted Security for a Definitive Note that does not bear the
legends required by subsection (a) above; and (ii) in the case of any Restricted
Security represented by a Global Note, such Restricted Security shall not be
required to bear the legends required by subsection (a) above, but shall
continue to be subject to the provisions of Section 2.06(d) hereof; provided
however, that with respect to any request for an exchange of a Restricted
Security that is represented by a Global Note for a Definitive Note that does
not bear the legends required by subsection (a) above, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule 144.
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(c) The Company (and the Restricted Subsidiaries) shall issue
and the Trustee shall authenticate Series B Notes in exchange for Series A Notes
accepted for exchange in the Exchange Offer. The Series B Notes shall not bear
the legends required by subsection (a) above unless the Holder of such Series A
Notes is either (i) a broker-dealer who purchased such Series A Notes directly
from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act, (ii) a Person participating in the
distribution of the Series A Notes or (iii) a Person who is an affiliate (as
defined in Rule 144A) of the Company.
ARTICLE 3.
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the Section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the applicable Holders
of the Notes in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or in accordance with any other
method the Trustee considers fair and appropriate, provided that no Notes of
$1,000 or less shall be redeemed in part. In the event of partial redemption by
lot, the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
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The notice shall identify the Notes (including CUSIP number)
to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price (including accrued interest
and Liquidated Damages, if any, to the redemption date);
(c) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed
and that, after the redemption date upon surrender of such
Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(f) that, unless the Company defaults in making such
redemption payment, interest and Liquidated Damages, if any,
on Notes called for redemption shall cease to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption
are being redeemed; and
(h) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional. On and after the redemption date, unless the Company defaults in
the payment of the redemption price, interest and Liquidated Damages, if any,
will cease to accrue on the Notes or portions thereof called for redemption and
all rights of Holders with respect to such Notes will terminate except for the
right to receive payment of the redemption price upon surrender for redemption.
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest and Liquidated Damages, if any, on
all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest and Liquidated Damages, if any, on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest and Liquidated Damages, if
any, shall cease to accrue on the Notes or the portions of Notes called for
redemption, whether or not such Notes are presented for payment. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest and Liquidated
Damages, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest and
Liquidated Damages, if any, shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note
(accompanied by a notation of the Subsidiary Guarantees duly endorsed by each
Guarantor) equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
Prior to July 1, 2004, the Notes will be subject to redemption
at any time at the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 day's notice, at the Make-Whole Price, plus accrued and
unpaid interest and Liquidated Damages, if any, to but excluding the applicable
redemption date. On and after July 1, 2004, the Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest and Liquidated Damages, if any, to but excluding the applicable
redemption date, if redeemed during the twelve-month period beginning on July 1
of the years indicated below:
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Year Percentage
2004............................................. 104.125%
2005............................................. 102.750%
2006............................................. 101.375%
2007 and thereafter ............................. 100.000%
Notwithstanding the foregoing, at any time prior to July 1,
2002, the Company may redeem up to 35% of the initial principal amount of the
Notes originally issued with the net proceeds of one or more Qualified Equity
Offerings at a redemption price equal to 108.25% of the principal amount of such
Notes, plus accrued and unpaid interest and Liquidated Damages, if any, to but
excluding the redemption date; provided, that at least 65% of the principal
amount of Notes originally issued remains outstanding immediately after the
occurrence of any such redemption and that such redemption occurs within 60 days
following the closing of any such Qualified Equity Offering.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth below under Section 4.10 and Section 4.14
hereof, the Company shall not be required to make sinking fund or redemption
payments with respect to the Notes.
SECTION 3.09. ASSET SALE OFFERS.
In the event that the Company shall commence an Asset Sale
Offer pursuant to Section 4.10 hereof, it shall follow the procedures specified
below:
The Asset Sale Offer shall remain open for 20 Business Days
after the Commencement Date relating to such Asset Sale Offer, except to the
extent required to be extended by applicable law (as so extended, the "Offer
Period"). No later than one Business Day after the termination of the Offer
Period (the "Purchase Date"), the Company shall purchase the principal amount
(the "Offer Amount") of Notes required to be purchased in such Asset Sale Offer
pursuant to Sections 3.02 and 4.10 hereof or, if less than the Offer Amount has
been tendered, all Notes tendered in response to the Asset Sale Offer.
If the Purchase Date is on or after an interest payment record
date and on or before the related interest payment date, any interest and
Liquidated Damages accrued to such Purchase Date shall be paid to the Person in
whose name a Note is registered at the close of business on such record date,
and no additional interest or Liquidated Damages shall be payable to Holders who
tender Notes pursuant to the Asset Sale Offer.
On the Commencement Date of any Asset Sale Offer, the Company
shall send or cause to be sent, by first class mail, a notice to each of the
Holders, with a copy to the Trustee. Such notice, which shall govern the terms
of the Asset Sale Offer, shall contain all instructions and materials necessary
to enable the Holders to tender Notes pursuant to the Asset Sale Offer and shall
state:
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(1) that the Asset Sale Offer is being made pursuant to
this Section 3.09 and Section 4.10 hereof and the
length of time the Asset Sale Offer shall remain
open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment
shall continue to accrue interest and Liquidated
Damages, if any;
(4) that, unless the Company defaults in the payment of
the purchase price, any Note accepted for payment
pursuant to the Asset Sale Offer shall cease to
accrue interest and Liquidated Damages, if any, after
the Purchase Date;
(5) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, to the Company, a depositary, if appointed
by the Company, or a Paying Agent at the address
specified in the notice prior to the close of
business on the Business Day preceding the Purchase
Date;
(6) that Holders shall be entitled to withdraw their
election if the Company, depositary or Paying Agent,
as the case may be, receives, not later than the
close of business on the Business Day preceding the
termination of the Offer Period, a facsimile
transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such
Holder is withdrawing his election to have the Note
purchased;
(7) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the
Trustee shall select the Notes to be purchased on a
pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes
in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered.
On or before 12:00 p.m. on each Purchase Date, the Company
shall irrevocably deposit with the Trustee or Paying Agent in immediately
available funds the aggregate purchase price with respect to a principal amount
of Notes equal to the Offer Amount, together with accrued interest and
Liquidated Damages, if any, thereon, to be held for payment in accordance with
the terms of this Section 3.09. On the Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment, on a pro rata basis to the extent
necessary, an aggregate principal amount equal to the Offer Amount of Notes
tendered pursuant to the Asset Sale Offer, or if less
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than the Offer Amount has been tendered, all Notes or portions thereof tendered,
(ii) deliver or cause the Paying Agent or depositary, as the case may be, to
deliver to the Trustee Notes so accepted and (iii) deliver to the Trustee an
Officers' Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.09.
The Company, depositary or Paying Agent, as the case may be, shall promptly (but
in any case not later than three Business Days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price with
respect to the Notes tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Note, and the Trustee shall
authenticate and mail or deliver such new Note, to such Holder, equal in
principal amount to any unpurchased portion of such Holder's Notes surrendered.
Any Note not accepted in the Asset Sale Offer shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce in a newspaper of general circulation the results of the Asset Sale
Offer on the Purchase Date.
The Asset Sale Offer shall be made by the Company in
compliance with all applicable laws, including, without limitation, Regulation
14E of the Exchange Act and the rules thereunder, to the extent applicable, and
all other applicable federal and state securities laws.
Each purchase pursuant to this Section 3.09 shall be made
pursuant to the provisions of the second paragraph of Section 3.05 hereof to the
extent applicable.
In the event the amount of Excess Proceeds to be applied to an
Asset Sale Offer would result in the purchase of a principal amount of Notes
which is not evenly divisible by $1,000, the Trustee shall promptly refund to
the Company the portion of such Excess Proceeds that is not necessary to
purchase the immediately lesser principal amount of Notes that is so divisible.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Restricted Subsidiary, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay any and all amounts, including without limitation Liquidated
Damages, if any, on the dates and in the manner required under the Registration
Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including
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post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace period) at the
same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company or any Restricted Subsidiary in respect of the
Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03 hereof.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of
the SEC, so long as any Notes are outstanding, the Company will furnish to the
Holders of Notes (i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all financial information that would
be required to be included in a Form 8-K filed with the SEC if the Company were
required to file such reports. In addition, whether or not required by the rules
and regulations of the SEC, the Company will file a copy of all such information
and reports with the SEC for public availability (unless the SEC will not accept
such a filing) and make such information available to investors who request it
in writing. Notwithstanding anything to the contrary contained herein, the
Trustee shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
(b) So long as is required for an offer or sale of the Notes
to qualify for an exemption under Rule 144A, the Company (and the Restricted
Subsidiaries) shall, upon request, provide the information required by clause
(d)(4) thereunder to each
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Holder and to each beneficial owner and prospective purchaser of Notes
identified by any Holder of Restricted Securities.
(c) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate, one of the signers
of which shall be the principal executive, principal financial or principal
accounting officer of the Company, stating that a review of the activities of
the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
the Company and each Restricted Subsidiary has kept, observed, performed and
fulfilled its obligations under this Indenture (including with respect to any
Restricted Payments made during such year, the basis upon which the calculations
required by Section 4.07 hereof were computed, which calculations may be based
on the Company's latest available financial statements), and further stating, as
to each such Officer signing such certificate, that to the best of his or her
knowledge, the Company and each Restricted Subsidiary has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company and each
Restricted Subsidiary, as the case may be, is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company and each
Restricted Subsidiary, as the case may be, is taking or proposes to take with
respect thereto.
(b) So long as not contrary to the then current professional
standards of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03 hereof shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements, nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof insofar as they pertain to
accounting matters or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an
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Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto. SECTION
4.05. TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except (i) such as are contested in good faith and by
appropriate proceedings or (ii) the nonpayment of which would not materially
adversely affect the business, condition (financial or otherwise), operations,
performance or properties of the Company and its Subsidiaries, taken as a whole.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
Each of the Company and the Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and each of the Company and the Guarantors (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly: (a) declare or pay any
dividend or make any distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company or
such Restricted Subsidiary or dividends or distributions payable to the Company
or any Restricted Subsidiary); (b) purchase, redeem or otherwise acquire or
retire for value any Equity Interests of the Company or any Restricted
Subsidiary or other Affiliate of the Company (other than any such Equity
Interests owned by the Company or any Restricted Subsidiary); (c) purchase,
redeem or otherwise acquire or retire prior to scheduled maturity for value any
Indebtedness that is subordinated in right of payment to the Notes; or (d) make
any Investment other than a Permitted Investment (all such payments and other
actions set forth in clauses (a) through (d) above being collectively referred
to as "Restricted Payments"), unless, at the time of such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(ii) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the test set
forth in the first paragraph of Section 4.09 hereof; and
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(iii) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of the 1996 Indenture is less than (x) the
cumulative EBITDA of the Company minus 1.75 times the cumulative
Consolidated Interest Expense of the Company, in each case for the
period (taken as one accounting period) from June 30, 1996, to the end
of the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment, plus (y) the aggregate net Equity Proceeds received by the
Company from the issuance or sale since the date of the 1996 Indenture
of Equity Interests of the Company or of debt securities of the Company
that have been converted into such Equity Interests (other than Equity
Interests or convertible debt securities sold to a Restricted
Subsidiary of the Company and other than Disqualified Stock or debt
securities that have been converted into Disqualified Stock), plus (z)
$2.0 million.
The foregoing provisions will not prohibit (A) the payment of
any dividend within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the provisions of this
Indenture; (B) the redemption, repurchase, retirement or other acquisition or
retirement for value of any Equity Interests of the Company in exchange for, or
with the net cash proceeds of, the substantially concurrent sale (other than to
a Restricted Subsidiary of the Company) of other Equity Interests of the Company
(other than any Disqualified Stock); (C) the defeasance, redemption, repurchase,
retirement or other acquisition or retirement for value of Indebtedness that is
subordinated or pari passu in right of payment to the Notes in exchange for, or
with the net cash proceeds of, a substantially concurrent issuance and sale
(other than to a Restricted Subsidiary of the Company) of Equity Interests of
the Company (other than Disqualified Stock); (D) the defeasance, redemption,
repurchase, retirement or other acquisition or retirement for value of
Indebtedness that is subordinated or pari passu in right of payment to the Notes
in exchange for, or with the net cash proceeds of, a substantially concurrent
issue and sale (other than to the Company or any of its Restricted Subsidiaries)
of Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated
or pari passu in right of payment to the Notes at a purchase price not greater
than 101% of the principal amount of such Indebtedness in the event of a Change
of Control in accordance with provisions similar to the covenant set forth in
Section 4.14 hereof, provided that prior to or contemporaneously with such
repurchase the Company has made the Change of Control Offer as provided in such
covenant with respect to the Notes and has repurchased all Notes validly
tendered for payment in connection with such Change of Control Offer; and (F)
additional payments to current or former employees or directors of the Company
for repurchases of stock, stock options or other equity interests, provided that
the aggregate amount of all such payments under this clause (F) does not exceed
$500,000 in any year and $2.0 million in the aggregate.
The Restricted Payments described in clauses (B), (C), (E) and
(F) of the immediately preceding paragraph will be Restricted Payments that will
be permitted to be taken in accordance with such paragraph but will reduce the
amount that would otherwise be available for Restricted Payments under clause
(iii) of the first paragraph of this section, and the Restricted Payments
described in clauses (A) and (D) of the immediately preceding paragraph will be
Restricted Payments that will be permitted to be taken in accordance with such
paragraph and
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will not reduce the amount that would otherwise be available for Restricted
Payments under clause (iii) of the first paragraph of this section.
If an Investment results in the making of a Restricted
Payment, the aggregate amount of all Restricted Payments deemed to have been
made as calculated under the foregoing provision will be reduced by the amount
of any net reduction in such Investment (resulting from the payment of interest
or dividends, loan repayment, transfer of assets or otherwise) to the extent
such net reduction is not included in the Company's EBITDA; provided, however,
that the total amount by which the aggregate amount of all Restricted Payments
may be reduced may not exceed the lesser of (a) the cash proceeds received by
the Company and its Restricted Subsidiaries in connection with such net
reduction and (b) the initial amount of such Investment.
If the aggregate amount of all Restricted Payments calculated
under the foregoing provision includes an Investment in an Unrestricted
Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, such
Investment will no longer be counted as a Restricted Payment for purposes of
calculating the aggregate amount of Restricted Payments. For the purpose of
making any calculations under this Indenture, (a) an Investment will include the
fair market value of the net assets of any Restricted Subsidiary at the time
that such Restricted Subsidiary is designated an Unrestricted Subsidiary and
will exclude the fair market value of the net assets of any Unrestricted
Subsidiary that is designated as a Restricted Subsidiary, (b) any property
transferred to or from an Unrestricted Subsidiary will be valued at fair market
value at the time of such transfer, provided that, in each case, the fair market
value of an asset or property is as determined by the Board of Directors in good
faith, and (c) subject to the foregoing, the amount of any Restricted Payment,
if other than cash, will be determined by the Board of Directors, whose good
faith determination will be conclusive.
The Board of Directors may designate a Restricted Subsidiary
to be an Unrestricted Subsidiary in compliance with Section 4.17 hereof. Upon
such designation, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments made at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.07. Such designation will only be
permitted if such Restricted Payment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) (i) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (A) on its
Capital Stock or (B) with respect to any other interest or participation in, or
measured by, its profits, or (ii) pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries, (b) make loans or advances to the Company or
any of its Restricted Subsidiaries or (c) transfer
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any of its properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (1) Existing Indebtedness as in effect on the date of this Indenture,
(2) the Credit Agreement as in effect as of the date of this Indenture, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancing thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive in the aggregate with
respect to such dividend and other payment restrictions than those contained in
the Credit Agreement as in effect on the date of this Indenture, (3) this
Indenture and the Notes, (4) applicable law, (5) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that the EBITDA of such
Person is not taken into account in determining whether such acquisition was
permitted by the terms of this Indenture, (6) customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (7) restrictions on the transfer of property
subject to purchase money obligations or Capital Lease Obligations otherwise
permitted by clause (e) of Section 4.09 hereof, (8) permitted Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such Refinancing Indebtedness are no more restrictive in the aggregate
than those contained in the agreements governing the Indebtedness being
refinanced, or (9) any agreement or instrument governing Indebtedness of an
Excluded Restricted Subsidiary provided that (i) at the time such agreement or
instrument is entered into, such Excluded Restricted Subsidiary and its
Restricted Subsidiaries have a Leverage Ratio of less than 6.5 to 1.0 and (ii)
neither such Excluded Restricted Subsidiary nor any of its Restricted
Subsidiaries shall, directly or indirectly, incur any Indebtedness (including
Acquired Debt) unless at the time of such incurrence and after giving effect
thereto, the Leverage Ratio for such Excluded Restricted Subsidiary and its
Restricted Subsidiaries would be less than 6.5 to 1.0. For purposes of
determining the Leverage Ratio under this clause (9) only, all references to the
"Company" and its "Restricted Subsidiaries" or similar references in the
definition of "Leverage Ratio" and other defined terms necessary to determine
the Leverage Ratio shall be deemed to refer to such Excluded Restricted
Subsidiary and its Restricted Subsidiaries, respectively.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable with respect
to (collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company will not permit any of its Restricted Subsidiaries to issue any shares
of preferred stock; provided, however, that the Company may incur Indebtedness
and may permit a Restricted Subsidiary to incur Indebtedness if at the time of
such incurrence and after giving effect thereto the Leverage Ratio would be less
than 6.5 to 1.0.
The foregoing limitations will not apply to (a) the incurrence
by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate
amount not to exceed $100.0
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million at any one time outstanding, (b) the issuance by the Restricted
Subsidiaries of Subsidiary Guarantees, (c) the incurrence by the Company and its
Restricted Subsidiaries of the Existing Indebtedness, (d) the issuance by the
Company of the Notes, (e) the incurrence by the Company and its Restricted
Subsidiaries of Capital Lease Obligations and/or additional Indebtedness
constituting purchase money obligations up to an aggregate of $5.0 million at
any one time outstanding, provided that the Liens securing such Indebtedness
constitute Permitted Liens, (f) the incurrence of Indebtedness between (i) the
Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries,
(g) Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding, (h) the incurrence
by the Company and its Restricted Subsidiaries of Indebtedness arising out of
letters of credit, performance bonds, surety bonds and bankers' acceptances
incurred in the ordinary course of business up to an aggregate of $5.0 million
at any one time outstanding, (i) the incurrence by the Company and its
Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or
obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of assets, including, without limitation, shares of
Capital Stock, and (j) the incurrence by the Company and its Restricted
Subsidiaries of Refinancing Indebtedness issued in exchange for, or the proceeds
of which are used to repay, redeem, defease, extend, refinance, renew, replace
or refund, Indebtedness referred to in clauses (b) through (e) above, and this
clause (j).
SECTION 4.10. ASSET SALES.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, (a) sell, lease, convey or otherwise dispose of any
assets (including by way of a Sale and Leaseback Transaction, but excluding a
Qualifying Sale and Leaseback Transaction) other than sales of inventory in the
ordinary course of business (provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company will be
governed by the provisions of Section 4.14 hereof and/or the provisions of
Section 5.01 hereof, and not by the provisions of this Section 4.10), or (b)
issue or sell Equity Interests of any of its Restricted Subsidiaries, that, in
the case of either clause (a) or (b) above, whether in a single transaction or a
series of related transactions, (i) have a fair market value in excess of $2.0
million, or (ii) result in Net Proceeds in excess of $2.0 million (each of the
foregoing, an "Asset Sale"), unless (x) the Company (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of such Asset
Sale at least equal to the fair market value (evidenced by an Officers'
Certificate delivered to the Trustee, and for Asset Sales having a fair market
value or resulting in net proceeds in excess of $10.0 million, evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets sold or otherwise disposed of and (y) at
least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash or like-kind assets (in each case
as determined in good faith by the Company, evidenced by a resolution of the
Board of Directors and certified by an Officers' Certificate delivered to the
Trustee); provided, however, that the amount of (A) any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent balance sheet or in
the notes thereto) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Notes or any Subsidiary
Guarantee) that are assumed by the transferee of any such assets and (B) any
notes or other obligations received by the Company or such
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Restricted Subsidiary from such transferee that are immediately converted by the
Company or such Restricted Subsidiary into cash (to the extent of the cash
received) or Cash Equivalents, shall be deemed to be cash for purposes of this
provision; and provided, further, that the 75% limitation referred to in the
foregoing clause (y) shall not apply to any Asset Sale in which the cash portion
of the consideration received therefrom is equal to or greater than what the
after-tax proceeds would have been had such Asset Sale complied with the
aforementioned 75% limitation. A transfer of assets or issuance of Equity
Interests by the Company to a Wholly Owned Restricted Subsidiary or by a Wholly
Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary will not be deemed to be an Asset Sale.
Within 360 days of any Asset Sale, the Company may, at its
option, apply an amount equal to the Net Proceeds from such Asset Sale either
(a) to permanently reduce Senior Debt, or (b) to an investment in a Restricted
Subsidiary or in another business or capital expenditure or other
long-term/tangible assets, in each case, in the same line of business as the
Company or any of its Restricted Subsidiaries was engaged in on the date of this
Indenture or in businesses similar or reasonably related thereto. Pending the
final application of any such Net Proceeds, the Company may temporarily reduce
Senior Bank Debt or otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture. Any Net Proceeds from such Asset Sale that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company shall make an offer to all Holders
of Notes and the holders of the 1997 Notes and any future Indebtedness ranking
pari passu with the Notes, which Indebtedness contains similar provisions
requiring the Company to repurchase such Indebtedness (an "Asset Sale Offer"),
to purchase the maximum principal amount of Notes and such other Indebtedness
that may be purchased out of the Excess Proceeds, at an offer price in cash in
an amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase, in accordance with the procedures set
forth in this Indenture; provided, however, that prior to making any such Asset
Sale Offer, the Company may, to the extent required by the 1996 Indenture, use
such Excess Proceeds to repurchase the 1996 Notes. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness (including the 1997
Notes) tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Notes and such other
Indebtedness surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other Indebtedness to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
An Asset Sale Offer shall be made pursuant to the provisions
of Section 3.09 hereof. No later than the date which is five Business Days after
the date on which the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Company shall notify the Trustee of such Asset Sale Offer and provide the
Trustee with an Officers' Certificate setting forth the calculations used in
determining the amount of Net Proceeds to be applied to the purchase of Notes.
The Company shall commence or cause to be commenced the Asset Sale Offer on a
date no later than 15 Business Days after such notice (the "Commencement Date").
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SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into any contract, agreement, understanding, loan, advance or guarantee with, or
for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with a non-Affiliated Person and (b) the Company delivers
to the Trustee (i) with respect to any Affiliate Transaction involving aggregate
payments in excess of $5.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (a) above and such Affiliate Transaction is approved by a
majority of the disinterested members of the Board of Directors and (ii) with
respect to any Affiliate Transaction involving aggregate payments in excess of
$10.0 million, an opinion as to the fairness to the Company or such Restricted
Subsidiary from a financial point of view issued by an investment banking firm
of national standing; provided, however, that (A) any employment agreement
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and consistent with the past practice of the Company
or such Restricted Subsidiary, (B) transactions between or among the Company
and/or its Restricted Subsidiaries, (C) transactions permitted by the provisions
of Section 4.07 hereof and (D) the grant of stock, stock options or other equity
interests to employees and directors of the Company and any Restricted
Subsidiary in accordance with duly adopted Company stock grant, stock option and
similar plans, in each case, shall not be deemed Affiliate Transactions; and
further provided that (1) the provisions of clause (b) shall not apply to sales
of inventory by the Company or any Restricted Subsidiary to any Affiliate in the
ordinary course of business and (2) the provisions of clause (b)(ii) shall not
apply to loans or advances to the Company or any Restricted Subsidiary from, or
equity investments in the Company or any Restricted Subsidiary by, any Affiliate
to the extent permitted by Section 4.09 hereof.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien (other than a Permitted Lien) upon any property or
assets now owned or hereafter acquired, or any income, profits or proceeds
therefrom, or assign or otherwise convey any right to receive income therefrom,
unless (a) in the case of any Lien securing any Indebtedness that is subordinate
to the Notes, the Notes are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Lien and (b) in the case of any
other Lien, the Notes are equally and ratably secured with the obligation or
liability secured by such Lien.
SECTION 4.13. ADDITIONAL SUBSIDIARY GUARANTEES.
If any entity (other than an Excluded Restricted Subsidiary)
shall become a Restricted Subsidiary after the date of this Indenture, then such
Restricted Subsidiary shall
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execute a Subsidiary Guarantee and deliver an opinion of counsel with respect
thereto, in accordance with the terms of this Indenture.
No Restricted Subsidiary (including any Excluded Restricted
Subsidiary) shall consolidate with or merge with or into (whether or not such
Restricted Subsidiary is the surviving Person), another Person (other than the
Company) whether or not affiliated with such Restricted Subsidiary unless (a)
subject to the provisions of the following paragraph, the Person formed by or
surviving any such consolidation or merger (if other than such Restricted
Subsidiary) assumes all the obligations of such Restricted Subsidiary under its
Subsidiary Guarantee (except in the case of an Excluded Restricted Subsidiary)
pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee; (b) immediately after giving effect to such
transaction, no Default or Event of Default exists; and (c) such Restricted
Subsidiary, or any Person formed by or surviving any such consolidation or
merger, would be permitted to incur, immediately after giving effect to such
transaction, at least $1.00 of additional Indebtedness pursuant to Section 4.09
hereof.
In the event of (a) a sale or other disposition of all of the
assets of any Restricted Subsidiary by way of merger, consolidation or
otherwise, (b) a sale or other disposition of all of the capital stock of any
Restricted Subsidiary, or (c) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with the terms of Section 4.17, then such
Subsidiary (in the event of a sale or other disposition, by way of such a
merger, consolidation or otherwise, of all of the capital stock of such
Restricted Subsidiary, or in the event of the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary) or the corporation acquiring the
property (in the event of a sale or other disposition of all of the assets of
such Restricted Subsidiary) shall be released and relieved of any obligations
under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
this Indenture.
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to but excluding the
date of purchase (the "Change of Control Payment"). Within 30 calendar days
following any Change of Control, the Company will mail a notice to each Holder
stating:
(a) that the Change of Control Offer is being made
pursuant to this Section 4.14 and that all Notes tendered will
be accepted for payment;
(b) the purchase price and the purchase date, which
will be no earlier than 30 calendar days nor later than 60
calendar days from the date such notice is mailed (the "Change
of Control Payment Date");
(c) that any Note not tendered will continue to
accrue interest;
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(d) that, unless the Company defaults in the payment
of the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer will cease to
accrue interest and Liquidated Damages, if any, on and after
the Change of Control Payment Date;
(e) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Notes completed, to
the Paying Agent at the address specified in such notice prior
to the close of business on the fifth Business Day preceding
the Change of Control Payment Date;
(f) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the
close of business on the second Business Day preceding the
Change of Control Payment Date, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that
such Holder is withdrawing his election to have such Notes
purchased; and
(g) that Holders whose Notes are being purchased only
in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable to the repurchase of the Notes in connection
with a Change of Control.
On the Change of Control Payment Date, the Company will, to
the extent lawful, (a) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (b) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (c) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company. The Paying Agent will
promptly mail to each Holder of Notes so accepted the Change of Control Payment
for such Notes, and the Trustee will promptly authenticate and mail to each
Holder a new Note equal in principal amount to any unpurchased portion of the
Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof. Prior to complying
with the provisions of this Section 4.14, but in any event within 90 calendar
days following a Change of Control, the Company shall either repay all
outstanding Senior Debt or obtain the requisite consents, if any, under all
agreements governing outstanding Senior Debt to permit the repurchase of Notes
required by this Section 4.14. The Company shall publicly announce in The Wall
Street Journal, or if no longer published, a national newspaper of general
circulation, the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
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SECTION 4.15. CORPORATE EXISTENCE.
Subject to Article 5 and Article 11 hereof, as the case may
be, the Company and each of the Restricted Subsidiaries shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of their Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company, any
such Restricted Subsidiary or any such Subsidiary, as the case may be, and (ii)
the rights (charter and statutory), licenses and franchises of the Company, the
Restricted Subsidiaries and their respective Subsidiaries; provided, however,
that the Company and the Restricted Subsidiaries shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of their respective Subsidiaries, if an officer of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company, the Restricted Subsidiaries and
their Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders of the Notes.
SECTION 4.16. CERTAIN SENIOR SUBORDINATED DEBT.
Notwithstanding the provisions of Section 4.09 hereof, (a) the
Company shall not incur any Indebtedness that is subordinated or junior in right
of payment to any Senior Debt of the Company and senior in any respect in right
of payment to the Notes, and (b) the Company shall not permit any Restricted
Subsidiary to incur any Indebtedness that is subordinated or junior in right of
payment to its Senior Debt and senior in any respect in right of payment to its
Subsidiary Guarantee.
SECTION 4.17. DESIGNATION OF UNRESTRICTED SUBSIDIARIES.
The Board of Directors may designate any Subsidiary (including
any Restricted Subsidiary or any newly acquired or newly formed Subsidiary) to
be an Unrestricted Subsidiary so long as: (i) neither the Company nor any
Restricted Subsidiary is directly or indirectly liable for any Indebtedness of
such Subsidiary; (ii) no default with respect to any Indebtedness of such
Subsidiary would permit (upon notice, lapse of time or otherwise) any holder of
any other Indebtedness of the Company or any Restricted Subsidiary to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; (iii) any Investment in
such Subsidiary deemed to be made as a result of designating such Subsidiary an
Unrestricted Subsidiary will not violate the provisions of Section 4.07 hereof;
(iv) neither the Company nor any Restricted Subsidiary has a contract,
agreement, arrangement, understanding or obligation of any kind, whether written
or oral, with such Subsidiary other than (A) those that might be obtained at the
time from Persons who are not Affiliates of the Company or (B) administrative,
tax sharing and other ordinary course contracts, agreements, arrangements and
understandings or obligations entered into in the ordinary course of business;
and (v) neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other Equity Interests in
such Subsidiary, or to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results, other than as permitted under Section 4.07 hereof. Notwithstanding the
foregoing, the
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Company may not designate as an Unrestricted Subsidiary any Subsidiary which, on
the date of this Indenture, is a Significant Subsidiary, and may not sell,
transfer or otherwise dispose of any properties or assets of any such
Significant Subsidiary to an Unrestricted Subsidiary, other than in the ordinary
course of business, in each case, other than Iron Mountain Global, Inc. and its
Subsidiaries (including, without limitation, Britannia Data Management Limited
and its Subsidiaries).
The Board of Directors may designate any Unrestricted
Subsidiary as a Restricted Subsidiary; provided that such designation will be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
will only be permitted if (i) such Indebtedness is permitted under Section 4.09
hereof and (ii) no Default or Event of Default would occur as a result of such
designation.
SECTION 4.18. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless (a) the
consideration received in such Sale and Leaseback Transaction is at least equal
to the fair market value of the property sold, as determined by a resolution of
the Board of Directors, and (b) the Company or such Restricted Subsidiary could
incur the Attributable Indebtedness in respect of such Sale and Leaseback
Transaction in compliance with Section 4.09 hereof.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person
unless (a) the Company is the surviving corporation or the entity or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other
than the Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of the Company under the Notes, this Indenture (pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee) and the Registration
Rights Agreement; (c) immediately after such transaction no Default or Event of
Default exists; and (d) the Company or any Person formed by or surviving any
such consolidation or merger, or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made will, at the time of
such transaction and after giving pro forma effect thereto, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the first paragraph
of Section 4.09 hereof.
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SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company or the Company and its Subsidiaries on a consolidated
basis in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture and the Registration Rights Agreement referring to
the "Company" shall refer instead to the successor corporation and not to the
Company), and may exercise every right and power of the Company under this
Indenture, the Notes and the Registration Rights Agreement with the same effect
as if such successor Person had been named as the Company herein; provided,
however, that the predecessor Company shall not be relieved from the obligation
to pay the principal of and interest on the Notes except in the case of a sale
of all of the Company's assets that meets the requirements of Section 5.01
hereof.
ARTICLE 6.
CERTAIN DEFAULT PROVISIONS
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest or
Liquidated Damages on the Notes (whether or not prohibited by the
subordination provisions of Article 10 hereof) when the same becomes
due and payable and such default continues for a period of 30 days;
(b) the Company defaults in the payment of principal of or
premium (including any Make-Whole Amount), if any, on the Notes
(whether or not prohibited by the subordination provisions of Article
10 hereof) when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or
otherwise;
(c) the Company fails to comply with the provisions of Section
4.14 hereof;
(d) the Company or any Guarantor fails to comply with any of
its other respective agreements or covenants in, or provisions of, the
Notes, the Subsidiary Guarantees or this Indenture and the Default
continues for the period and after the notice specified below;
(e) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of
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which is Guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists or
shall be created hereafter if (i) such default results in the
acceleration of such Indebtedness prior to its express maturity or
shall constitute a default in the payment of such Indebtedness at final
maturity of such Indebtedness and (ii) the principal amount of such
Indebtedness that has been accelerated or not paid at maturity,
together with the principal amount of any other Indebtedness that has
been accelerated or not paid at maturity, exceeds $10.0 million;
(f) a final judgment or final judgments for the payment of
money are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such
judgments remain unpaid, undischarged or unstayed for a period of 60
days, provided that the aggregate of all such unpaid, undischarged or
unstayed judgments exceeds $10.0 million;
(g) except as otherwise permitted hereunder, any Subsidiary
Guarantee issued by a Restricted Subsidiary shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or any Restricted Subsidiary
(or its successors or assigns), or any Person acting on behalf of any
Restricted Subsidiary (or its successors or assigns), shall deny or
disaffirm its obligations in writing under its Subsidiary Guarantee;
(h) the Company or any of its Restricted Subsidiaries that is
a Significant Subsidiary:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) admits in writing its inability generally to pay
its debts as the same become due,
in each case, pursuant to or within the meaning of any
Bankruptcy Law; or
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Restricted Subsidiary that is a Significant Subsidiary of the
Company in an involuntary case,
(ii) appoints a Custodian of the Company or any
Restricted Subsidiary that is a Significant Subsidiary of the
Company or for all or substantially all of the
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property of the Company or any Restricted Subsidiary that is a
Significant Subsidiary of the Company, or
(iii) orders the liquidation of the Company or any
Restricted Subsidiary that is a Significant Subsidiary of the
Company, and such order or decree remains unstayed and in
effect for 60 consecutive days.
A Default under clause (d) is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the then outstanding Notes notify the Company and the Trustee, of the
Default and the Company does not cure the Default within 60 days after receipt
of the notice. The notice must be in writing, must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default."
In the case of any Event of Default pursuant to the provisions
of this Section 6.01 occurring by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding payment of the Make-Whole Price or premium, as applicable, that the
Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to Section 3.07 hereof, the applicable Make-Whole Price, or an
equivalent premium, as the case may be, shall become and be immediately due and
payable to the extent permitted by law upon acceleration of the Notes as
provided below, anything in this Indenture or in the Notes to the contrary
notwithstanding.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in clauses (h)(i) through (h)(v) and (i) of Section 6.01 hereof
relating to the Company or any Significant Subsidiary) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
principal amount of the then outstanding Notes by notice to the Company and the
Trustee may declare the unpaid principal of and any accrued interest and
Liquidated Damages, if any, on all the Notes to be due and payable. Upon such
declaration the principal and interest and Liquidated Damages, if any, shall be
due and payable immediately (together with the premium referred to in Section
6.01 hereof, if applicable); provided, however, that if any Obligation with
respect to Senior Bank Debt is outstanding pursuant to the Credit Agreement upon
a declaration of acceleration of the Notes, the principal, premium, if any, and
interest and Liquidated Damages, if any, on the Notes will not be payable until
the earlier of (1) the day which is five Business Days after written notice of
acceleration is received by the Company and the Credit Agent, and (2) the date
of acceleration of the Indebtedness under the Credit Agreement. If an Event of
Default specified in clauses (h)(i) through (h)(v) or (i) of Section 6.01 hereof
relating to the Company or any Significant Subsidiary occurs, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. In the event
of a declaration of acceleration of the Notes because an Event of Default has
occurred and is continuing as a result of the acceleration of any Indebtedness
described in Section 6.01(e) hereof, the declaration of acceleration of the
Notes shall be automatically annulled if the holders of any Indebtedness
described in Section 6.01(e) have rescinded the declaration of acceleration in
respect of such Indebtedness within 30 days of the
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date of such declaration and if (a) the annulment of the acceleration of the
Notes would not conflict with any judgment or decree of a competent
jurisdiction, and (b) all existing Events of Default, except non-payment of
principal or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes waive any existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the premium, if any, interest and Liquidated Damages, if any,
on, or the principal of the Notes (including in connection with an offer to
purchase) (provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Notes may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes if, and only if:
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(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default or the Trustee receives such notice
from the Company;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note. Nothing contained in this Section 6.06 shall affect the right of a Holder
of a Note to sue for enforcement of any overdue payment thereon.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Subject to Articles 10 and 11 hereof, notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive
payment of principal of, premium, if any, and interest and Liquidated Damages,
if any, on the Note, on or after the respective due dates expressed in the Note
(including in connection with a Purchase Offer), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, interest and Liquidated Damages,
if any, remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings
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relative to the Company (or any other obligor upon the Notes, including the
Guarantors), its creditors or its property and shall be entitled and empowered
to collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to the holders of Senior Debt of the Company or the
Restricted Subsidiaries, as the case may be, to the extent required by
Article 10 or Article 11 hereof, as applicable;
Third: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, interest and Liquidated Damages,
if any, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, premium, if
any, interest and Liquidated Damages, respectively; and
Fourth: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
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SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of
more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
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(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) Except with respect to Sections 4.01 and 4.04 herein, the
Trustee shall have no duty to inquire as to the performance of the Company's
covenants in Article 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 6.01(a), 6.01(b), 4.01 and 4.04 herein or
(ii) any Default or Event of Default of which a Responsible Officer of the
Trustee shall have received written notification or obtained actual knowledge.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its choice and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any
Restricted Subsidiary or any Affiliate of the Company or any Restricted
Subsidiary with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is actually known to the Trustee, the Trustee shall mail to the Holders of
the Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest or Liquidated Damages, if any, on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each April 15 beginning with the April 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA ss. 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Restricted Subsidiaries shall be jointly
and severally obligated to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company and the Restricted Subsidiaries shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company and the Restricted Subsidiaries shall indemnify
each of the Trustee and any predecessor Trustee against any and all losses,
liabilities, damages, claims or expenses, including taxes (other than taxes
based on the income of the Trustee), incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Restricted Subsidiaries (including this Section 7.07), and
defending itself against any claim (whether asserted by the Company, any
Restricted Subsidiary or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company and the
Restricted Subsidiaries of their obligations hereunder. The Company and the
Restricted Subsidiaries shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company and the
Restricted Subsidiaries shall pay the reasonable fees and expenses of such
counsel. The Company and the Restricted Subsidiaries need not pay for any
settlement made without their consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Restricted Subsidiaries
under this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
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To secure the Company's and the Restricted Subsidiaries'
payment obligations in this Section, the Trustee shall have a Lien prior to the
Notes on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Notes of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, any Restricted Subsidiary, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of
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a Note may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's and the Restricted Subsidiaries' obligations
under Section 7.07 hereof shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article Eight.
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SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, each of the Company and the Guarantors,
if any, shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from its obligations with
respect to all outstanding Notes and Subsidiary Guarantees on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest on such Notes when such payments
are due, (b) the Company's and Guarantors' obligations with respect to such
Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's and the
Guarantors' obligations in connection therewith and (d) this Article 8. Subject
to compliance with this Article 8, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, each of the Company and the Guarantors,
if any, shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from its obligations under the covenants
contained in Sections 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16, 4.17 and Article V hereof with respect to the outstanding Notes and
Subsidiary Guarantees on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture, such Notes and the Subsidiary
Guarantees, if any, shall be unaffected thereby. In addition, upon the Company's
exercise under Section 8.01 hereof of the option applicable to this Section 8.03
hereof, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, Sections
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6.01(c) through 6.01(f) and Section 6.01(h) and 6.01(i) hereof shall not
constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium, if any, and interest and Liquidated Damages, if any, on
the outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, of such principal or
installment of principal of, premium, if any, or interest on the
outstanding Notes;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States (which counsel may be an employee of the Company or
any Subsidiary of the Company) reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
Issuance Date, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States (which counsel may be an employee of the Company or
any Subsidiary of the Company) reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 6.01(h)
and 6.01(i) hereof are concerned, at any time in the period ending on
the 91st day after the date of deposit (or greater period of time in
which any such deposit of trust funds may remain subject to Bankruptcy
Law insofar as those apply to the deposit by the Company);
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(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over any
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest and Liquidated Damages, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company and the Guarantors shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
cash or non-callable Government Securities deposited pursuant to Section 8.04
hereof or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the outstanding Notes.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
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SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest, if any, on any Note and remaining unclaimed for two years
after such principal, and premium, if any, or interest, if any, have become due
and payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's and the Restricted
Subsidiaries' obligations under this Indenture, the Notes and the Subsidiary
Guarantees shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided, however, that, if the Company and the
Restricted Subsidiaries make any payment of principal of, premium, if any, or
interest, if any, on any Note following the reinstatement of its obligations,
the Company and the Restricted Subsidiaries shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
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(c) to provide for the assumption of the Company's or any
Guarantor's obligations to the Holders of the Notes in the case of a
merger or consolidation pursuant to Article Five or Article 11 hereof,
as the case may be;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes (including providing for
additional Subsidiary Guarantees pursuant to Section 4.13 hereof) or
that does not materially adversely affect the legal rights hereunder of
any Holder of the Note; or
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company and
the Guarantors in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture or the
Notes with the consent of the Holders of at least a majority in principal amount
of the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and
6.07 hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes or Liquidated Damages, if any, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for the Notes).
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of such amended or supplemental Indenture unless such amended or
supplemental Indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
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It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company or any Guarantor with any
provision of this Indenture, the Notes or the Subsidiary Guarantees. However,
without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter any of the provisions with respect to the redemption
of the Notes in a manner adverse to the Holders of the Notes;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if
any, on the Notes (except a rescission of acceleration of the Notes by
the Holders of at least a majority in aggregate principal amount of the
then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of or premium, if any, or interest or
Liquidated Damages, if any, on the Notes;
(g) waive a redemption payment with respect to any Note (other
than a payment required by Section 4.10 or Section 4.14 hereof);
(h) except pursuant to Article 4, Article 8 and Article 11
hereof, release any Guarantor from its obligations under its Subsidiary
Guarantee, or change any Subsidiary Guarantee in any manner that would
materially adversely affect the Holders; or
(i) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
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SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes (accompanied by a notation of the Subsidiary Guarantees duly endorsed
by the Restricted Subsidiaries) that reflect the amendment, supplement or
waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company and the Guarantors may not sign an amendment or supplemental
Indenture until the Board of Directors of the Company and each of the Guarantors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10.
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company, the Trustee and each Holder by accepting a Note
agrees, that the indebtedness and obligations evidenced by the Note (a) rank
pari passu with the 1996 Notes, (b) rank pari passu with the 1997 Notes and (c)
are subordinated in right of payment, to the extent
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and in the manner provided in this Article, to the prior payment in full, in
cash, of all Obligations with respect to Senior Debt of the Company (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the holders of
Senior Debt of the Company.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of the Company
in a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, in an assignment for the benefit of creditors or any
marshaling of the Company's assets and liabilities:
(1) holders of Senior Debt of the Company shall be
entitled to receive payment in full in cash of all Obligations
due in respect of such Senior Debt of the Company (including
interest after the commencement of any such proceeding at the
rate specified in the applicable Senior Debt of the Company,
whether or not allowed as a claim in such proceeding) before
Holders shall be entitled to receive any payment or
distribution from the Company with respect to the Notes; and
(2) until all Obligations with respect to Senior Debt
of the Company (as provided in subsection (1) above) are paid
in full in cash, any payment or distribution to which the
Trustee or any Holder would be entitled but for this Article
shall be made to holders of Senior Debt of the Company, as
their interests may appear.
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any payment or distribution upon or
in respect of the Notes, including, without limitation, by way of set-off or
otherwise, or redeem (or make a deposit in redemption of), defease or acquire
any of the Notes, for cash, properties or securities if:
(i) a default in the payment of any principal, premium, if
any, or interest or other Obligations (a "Payment Default") with
respect to Senior Debt of the Company occurs and is continuing; or
(ii) a default (other than a Payment Default) or any event
that, after notice or passage of time would become a default (a
"Non-Monetary Default"), on Senior Debt of the Company occurs and is
continuing that then permits holders of the Senior Debt of the Company
to accelerate its maturity and the Trustee receives a notice of the
default (a "Payment Blockage Notice") from a Person who may give it
pursuant to Section 10.11 hereof. Any number of such Payment Blockage
Notices may be given, provided, however, that (i) not more than one
Payment Blockage Notice may be commenced during any period of 360
consecutive days and (ii) any Non-Monetary Default that existed or was
continuing on the date of delivery of any such notice to the Trustee
(to the extent the holder of Designated Senior Debt, or such trustee or
agent, giving such Payment
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Blockage Notice had knowledge of the same) shall not be the basis for a
subsequent Payment Blockage Notice, unless such default has been cured
or waived for a period of not less than 90 days.
The Company may and shall resume payments on and distributions
in respect of the Notes and all Obligations with respect thereto, and may
acquire such Notes or Obligations upon the earlier of:
(1) in the case of a payment default, the date upon
which such default is cured or waived, or
(2) in the case of a Non-Monetary Default, on the
earlier of the date on which such Non-Monetary Default is
cured or waived or 179 days after the date on which the
applicable Payment Blockage Notice is received, if the
maturity of such Senior Debt of the Company has not been
accelerated,
if this Article 10 otherwise permits the payment, distribution or acquisition at
the time thereof.
SECTION 10.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify Representatives of the holders of
Senior Debt of the Company of the acceleration.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives from the
Company any payment of any Obligations with respect to the Notes at a time when
the Trustee or such Holder, as applicable, has actual knowledge that such
payment is prohibited by Section 10.02 or 10.03 hereof, such payment shall be
held by the Trustee or such Holder in trust for the benefit of, and shall be
paid forthwith over and delivered upon written request to, the holders of Senior
Debt of the Company, as their interests may appear, or their Representative
under the indenture or other agreement (if any) pursuant to which Senior Debt of
the Company may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Senior Debt of the
Company remaining unpaid to the extent necessary to pay such Obligations in full
in accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt of the Company.
With respect to the holders of Senior Debt of the Company, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt of the Company shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt of the Company, and shall
not be liable to any such holders if the Trustee shall pay over or distribute to
or on behalf of Holders or the Company or any other Person money or assets to
which any holders of Senior Debt of the
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Company shall be entitled by virtue of this Article 10, except if such payment
is made as a result of the willful misconduct or gross negligence of the
Trustee.
SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article, but failure to
give such notice shall not affect the subordination of the Notes to the Senior
Debt of the Company as provided in this Article.
SECTION 10.07. SUBROGATION.
After all Obligations with respect to Senior Debt of the
Company are paid in full, in cash, and until the Notes are paid in full, Holders
shall be subrogated (equally and ratably with all other Indebtedness pari passu
with the Notes) to the rights of holders of Senior Debt of the Company to
receive distributions applicable to Senior Debt of the Company to the extent
that distributions otherwise payable to the Holders have been applied to the
payment of Senior Debt of the Company. A distribution made under this Article to
holders of Senior Debt of the Company that otherwise would have been made to
Holders is not, as between the Company and Holders, a payment by the Company on
the Notes.
SECTION 10.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and
holders of Senior Debt of the Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Notes
in accordance with their terms;
(2) affect the relative rights of Holders and
creditors of the Company other than their rights in relation
to holders of Senior Debt of the Company; or
(3) prevent the Trustee or any Holder from exercising
its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior Debt of
the Company to receive distributions and payments otherwise
payable to Holders.
If the Company fails because of this Article 10 to pay
principal of, premium or interest on a Note on the due date, the failure is
still a Default or Event of Default.
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt of the Company to
enforce the subordination of the Indebtedness evidenced by the Notes shall be
impaired by any act or failure to act by the Company or any Holder or by the
failure of the Company or any Holder to comply with this Indenture.
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SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt of the Company, the distribution may be made and the
notice given to their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt of the Company and other
Indebtedness of the Company, the amount or amounts thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least one Business Day prior to the date of such
payment a Payment Blockage Notice. Only the holders or the Representative of
holders of Designated Senior Debt of the Company may give a Payment Blockage
Notice. Nothing in this Article 10 shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 10, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, the Representatives of the Senior Debt of the Company
are hereby authorized to file an appropriate claim for and on behalf of the
Holders of the Notes.
SECTION 10.13. AMENDMENTS.
The provisions of this Article 10 shall not be amended or
modified without the written consent of the holders of all Senior Debt of the
Company.
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ARTICLE 11.
SUBSIDIARY GUARANTEES
SECTION 11.01. SUBSIDIARY GUARANTEE.
Each Subsidiary that is a signatory hereto and each Restricted
Subsidiary of the Company which in accordance with Section 4.13 hereof is
required to guarantee the obligations of the Company under the Notes (each, a
"Guarantor"), upon execution of a supplemental indenture, hereby jointly and
severally unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee irrespective of the validity or enforceability of this
Indenture, the Notes or the obligations of the Company under this Indenture or
the Notes, that: (i) the principal of and interest on and Liquidated Damages, if
any, with respect to the Notes will be paid in full when due, whether at the
maturity or interest payment or mandatory redemption date, by acceleration, call
for redemption or otherwise, and interest on the overdue principal of and
interest, if any, on the Notes and all other obligations of the Company to the
Holders or the Trustee under this Indenture or the Notes will be promptly paid
in full or performed, all in accordance with the terms of this Indenture and the
Notes; and (ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, they will be paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed for whatever reason, each Guarantor will be obligated to pay the
same whether or not such failure to pay has become an Event of Default which
could cause acceleration pursuant to Section 6.02 hereof. Each Guarantor agrees
that this is a guarantee of payment not a guarantee of collection.
Each Guarantor hereby agrees that its obligations with regard
to this Subsidiary Guarantee shall be joint and several and unconditional,
irrespective of the validity or enforceability of the Notes or the obligations
of the Company under this Indenture, the absence of any action to enforce the
same, the recovery of any judgment against the Company or any other obligor with
respect to this Indenture, the Notes or the obligations of the Company under
this Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (a) any right to require the Trustee, the Holders or the Company
(each, a "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
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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 Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any Custodian
acting in relation to either the Company or such Guarantor, any amount paid by
the Company or such Guarantor to the Trustee or such Holder, the applicable
Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated
and be in full force and effect. Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
Each Guarantor further agrees that, as between such Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Section 6.02 hereof for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration as to the Company or any other obligor on the Notes of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of those obligations as provided in Section 6.02 hereof, those
obligations (whether or not due and payable) will forthwith become due and
payable by such Guarantor for the purpose of this Subsidiary Guarantee.
SECTION 11.02. SUBORDINATION.
Each Guarantor, the Trustee, and each Holder by accepting a
Note agrees, that the indebtedness and obligations under the Subsidiary
Guarantees (a) rank pari passu with the guarantees of the 1996 Notes provided
under the 1996 Indenture, (b) rank pari passu with the guarantees of the 1997
Notes provided under the 1997 Indenture and (c) are subordinated in right of
payment, to the extent and in the manner provided in this Article 11, to the
prior payment in full, in cash, of all Obligations with respect to Senior Debt
of such Guarantor (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt of such Guarantor.
SECTION 11.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of any Guarantor
in a liquidation or dissolution of such Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Guarantor or its property, in an assignment for the benefit of creditors or any
marshaling of such Guarantor's assets and liabilities:
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(1) holders of Senior Debt of such Guarantor shall be
entitled to receive payment in full in cash of all Obligations
due in respect of such Senior Debt of such Guarantor
(including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt
of such Guarantor, whether or not allowed as a claim in such
proceeding) before the Holders shall be entitled to receive
any payment or distribution from the Guarantor with respect to
such Guarantor's Subsidiary Guarantee; and
(2) until all Obligations with respect to Senior Debt
of such Guarantor (as provided in subsection (1) above) are
paid in full in cash, any payment or distribution to which the
Trustee or any Holder would be entitled but for this Article
shall be made to holders of Senior Debt of such Guarantor, as
their interests may appear.
SECTION 11.04. DEFAULT ON SENIOR DEBT OF THE GUARANTOR.
No Guarantor shall make any payment or distribution upon or in
respect of the Notes or its Subsidiary Guarantee, including, without limitation,
by way of set-off or otherwise, or redeem (or make a deposit in redemption of),
defease or acquire any of the Notes, for cash, properties or securities if:
(i) a Payment Default with respect to Senior Debt of such
Guarantor occurs and is continuing; or
(ii) a Non-Monetary Default on Senior Debt of such Guarantor
occurs and is continuing that then permits holders of the Senior Debt
of such Guarantor to accelerate its maturity and the Trustee receives a
Payment Blockage Notice from a Person who may give it pursuant to
Section 11.12 hereof. Any number of such Payment Blockage Notices may
be given, provided, however, that (i) not more than one Payment
Blockage Notice may be commenced during any period of 360 consecutive
days and (ii) any default or event of default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to
the Trustee (to the extent the holder of Designated Senior Debt, or
such trustee or agent, giving such Payment Blockage Notice had
knowledge of the same) shall not be the basis for a subsequent Payment
Blockage Notice pursuant to Section 11.12 herein, unless such default
has been cured or waived for a period of not less than 90 consecutive
days.
Each Guarantor may and shall resume payments on and
distributions in respect of its Subsidiary Guarantee, the Notes and all
Obligations with respect thereto, and may acquire such Notes or Obligations upon
the earlier of:
(1) in the case of a payment default, the date upon
which such default is cured or waived, or
(2) in the case of a Non-Monetary Default, on the
earlier of the date on which such Non-Monetary Default is
cured or waived or 179 days after the date
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on which the applicable Payment Blockage Notice is received,
if the maturity of such Senior Debt of such Guarantor has not
been accelerated,
if this Article 11 otherwise permits the payment, distribution or acquisition at
the time thereof.
SECTION 11.05. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, each Guarantor shall promptly notify the Representative of the holders
of Senior Debt of such Guarantor of the acceleration.
SECTION 11.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives from a
Guarantor any payment of any Obligations with respect to the Notes or the
Subsidiary Guarantees at a time when the Trustee or such Holder, as applicable,
has actual knowledge that such payment is prohibited by Section 11.03 or 11.04
hereof, such payment shall be held by the Trustee or such Holder, in trust for
the benefit of, and shall be paid forthwith over and delivered upon written
request to, the holders of Senior Debt of such Guarantor, as their interests may
appear, or their Representative under the indenture or other agreement (if any)
pursuant to which Senior Debt of such Guarantor may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt of such Guarantor remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt of such Guarantor.
With respect to the holders of Senior Debt of any Guarantor,
the Trustee undertakes to perform only such obligations on the part of the
Trustee as are specifically set forth in this Article 11, and no implied
covenants or obligations with respect to the holders of Senior Debt of such
Guarantor shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of
such Guarantor, and shall not be liable to any such holders if the Trustee shall
pay over or distribute to or on behalf of Holders or the Company or any other
Person money or assets to which any holders of Senior Debt of such Guarantor
shall be entitled by virtue of this Article 11, except if such payment is made
as a result of the willful misconduct or gross negligence of the Trustee.
SECTION 11.07. NOTICE BY A GUARANTOR.
Each Guarantor shall promptly notify the Trustee and the
Paying Agent of any facts known to such Guarantor that would cause a payment of
any Obligations with respect to the Notes or its Subsidiary Guarantee to violate
this Article, but failure to give such notice shall not affect the subordination
of its Subsidiary Guarantee or of the Notes to the Senior Debt of such Guarantor
as provided in this Article 11.
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SECTION 11.08. SUBROGATION.
With respect to any Guarantor, after all Obligations with
respect to Senior Debt of such Guarantor is paid in full, in cash, and until the
Notes are paid in full, Holders shall be subrogated (equally and ratably with
all other Indebtedness pari passu with such Guarantor's Subsidiary Guarantee) to
the rights of holders of Senior Debt of such Guarantor to receive distributions
applicable to Senior Debt of such Guarantor to the extent that distributions
otherwise payable to the Holders have been applied to the payment of Senior Debt
of such Guarantor. A distribution made under this Article to holders of Senior
Debt of such Guarantor that otherwise would have been made to Holders is not, as
between such Guarantor and Holders, a payment by such Guarantor on the Notes or
the Subsidiary Guarantee.
SECTION 11.09. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and
holders of Senior Debt of each Guarantor. Nothing in this Indenture shall:
(1) impair, as between such Guarantor and the
Holders, the obligation of such Guarantor, which is absolute
and unconditional, to pay principal of and interest and
Liquidated Damages, if any, on the Notes in accordance with
the terms of its Subsidiary Guarantee;
(2) affect the relative rights of Holders and
creditors of such Guarantor other than their rights in
relation to holders of Senior Debt of such Guarantor; or
(3) prevent the Trustee or any Holder from exercising
its available remedies upon a Default or Event of Default,
subject to the rights of holders of Senior Debt of such
Guarantor set forth herein to receive distributions and
payments otherwise payable to Holders.
If any Guarantor fails because of this Article 11 to pay
principal of, premium or interest or Liquidated Damages, if any, on a Note on
the due date, the failure is still a Default or Event of Default.
SECTION 11.10. SUBORDINATION MAY NOT BE IMPAIRED BY ANY GUARANTOR.
With respect to any Guarantor, no right of any holder of
Senior Debt of such Guarantor to enforce the subordination of the Indebtedness
evidenced by the Subsidiary Guarantee shall be impaired by any act or failure to
act by such Guarantor or any Holder or by failure of such Guarantor or any
Holder to comply with this Indenture.
SECTION 11.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
With respect to any Guarantor, whenever a distribution is to
be made or a notice given to holders of Senior Debt of such Guarantor, the
distribution may be made and the notice given to their Representative.
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Upon any payment or distribution of assets of any Guarantor
referred to in this Article 11, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt of such Guarantor and other
Indebtedness of such Guarantor, the amount or amounts thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 11.
SECTION 11.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least one Business Day prior to the date of such
payment a Payment Blockage Notice. Only the Representative of holders of
Designated Senior Debt may give a Payment Blockage Notice. Nothing in this
Article 11 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
With respect to any Guarantor, the Trustee in its individual
or any other capacity may hold Senior Debt of such Guarantor with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights.
SECTION 11.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 11, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
relative to any Guarantor referred to in Section 6.09 hereof at least 30 days
before the expiration of the time to file such claim, the Representatives of
Senior Debt of such Guarantor are hereby authorized to file an appropriate claim
for and on behalf of the Holders of the Notes.
SECTION 11.14. AMENDMENTS.
With respect to any Guarantor, the provisions of Section 11.02
through 11.14 hereof shall not be amended or modified without the written
consent of the holders of all Senior Debt of such Guarantor.
SECTION 11.15. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and, by its acceptance hereof, the Trustee and
each Holder hereby confirm that it is its intention that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of the Bankruptcy Law, the Uniform Fraudulent
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Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to any Subsidiary Guarantee. To effectuate
the foregoing intention, each such person hereby irrevocably agrees that the
obligation of such Guarantor under its Subsidiary Guarantee under this Article
11 shall be limited to the maximum amount as will, after giving effect to such
maximum amount and all other (contingent or other) liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
this Article 11, result in the obligations of such Guarantor in respect of such
maximum amount not constituting a fraudulent transfer or conveyance under said
laws. The Trustee and each Holder by accepting the benefits hereof, confirms its
intention that, in the event of a bankruptcy, reorganization or other similar
proceeding of the Company or any Guarantor in which concurrent claims are made
upon such Guarantor hereunder, to the extent such claims will not be fully
satisfied, each such claimant with a valid claim against the Company shall be
entitled to a ratable share of all payments by such Guarantor in respect of such
concurrent claims. For all purposes of this Section 11.15, Senior Debt shall be
deemed to have been incurred prior to the incurrence of the obligations in
respect of the Subsidiary Guarantees.
SECTION 11.16. RESTRICTED SUBSIDIARIES MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
No Guarantor shall consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person whether
or not it is affiliated with such Guarantor unless (i) subject to the provisions
of Section 11.17 hereof, the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee, under its Subsidiary Guarantee, the
Notes and this Indenture, (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists, and (iii) such Guarantor, or
any Person formed by or surviving any such consolidation or merger, will be
permitted to incur, immediately after giving effect to such transaction, at
least $1.00 of additional Indebtedness pursuant to the first paragraph of
Section 4.09 hereof. In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary Guarantee in this Indenture and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor corporation shall
succeed to and be substituted for the Guarantor with the same effect as if it
had been named herein as a Guarantor.
SECTION 11.17. RELEASES FOLLOWING SALE OF ASSETS OR DESIGNATION AS
UNRESTRICTED SUBSIDIARY.
In the event of (a) a sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or (b) a sale or other disposition of all of the
capital stock of any Guarantor, or (c) the designation of a Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms of Section
4.17 hereof, then such Guarantor (in the event of a sale or other disposition,
by way of such a merger, consolidation or otherwise,
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of all of the capital stock of such Guarantor, or in the event of the
designation of such Guarantor as an Unrestricted Subsidiary) or the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) shall be released and
relieved of its obligations under its Subsidiary Guarantee; provided that the
Net Proceeds of such sale or other disposition are applied in accordance with
Section 4.10 hereof.
ARTICLE 12.
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss.318(c), the imposed duties shall
control.
SECTION 12.02. NOTICES.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or 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
745 Atlantic Avenue
Boston, MA 02111
Attention: President
Telecopier No.: (617) 350-7881
With a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Telecopier No.: (617) 338-2880
Attention: William J. Curry, Esq.
If to the Trustee:
The Bank of New York
101 Barclay Street
21st Floor
New York, NY 10286
Telecopier No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
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The Company, any Guarantor or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA ss. 313(c),
to the extent required by the TIA. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company or any Guarantor mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent at
the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Restricted Subsidiaries, the Trustee, the Registrar and anyone else
shall have the protection of TIA ss. 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any
Guarantor to the Trustee to take any action under this Indenture, the Company or
such Guarantor shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants provided for in this
Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
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SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or any Guarantor under the
Notes, the Subsidiary Guarantees, this Indenture, the Registration Rights
Agreement or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note and the
related Subsidiary Guarantees waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes and the
Subsidiary Guarantees.
SECTION 12.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
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SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company and the Guarantors in this
Indenture and the Notes and the Subsidiary Guarantees, as the case may be, shall
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture, in the Notes or in
the Subsidiary Guarantees shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of April 26, 1999 IRON MOUNTAIN INCORPORATED
By: /S/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman and
Chief Executive Officer
Dated as of April 26, 1999 Iron Mountain Records Management, Inc.,
Criterion Atlantic Property, Inc., HIMSCORP
of San Diego, Inc., Iron Mountain Consulting
Services, Inc., Iron Mountain of Maryland
LLC, Iron Mountain Records Management of
Ohio, Inc., Iron Mountain Records Management
of Michigan, Inc., Iron Mountain Records
Management of San Antonio, Inc., Iron
Mountain Records Management of San
Antonio-FP, Inc., Iron Mountain/Safesite,
Inc., IM-AEI Acquisition Corp., IM
Billerica, Inc., Arcus Data Security, Inc.,
Iron Mountain/National Underground Storage,
Inc., Iron Mountain Safe Deposit
Corporation, HIMSCORP of Philadelphia, Inc.,
HIMSCORP of Pittsburgh, Inc., HIMSCORP of
New Orleans, Inc., HIMSCORP of Los Angeles,
Inc., HIMSCORP of Cleveland, Inc., HIMSCORP
of Portland, Inc., HIMSCORP of Detroit,
Inc., HIMSCORP of Houston, Inc.,
Recordkeepers, Inc., Arcus Data Security
LLC, DSI Technology Escrow Services, Inc.,
Iron Mountain Records Management of Utah,
Inc. and Arcus Staffing Resources, Inc.
By: /S/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman and
Chief Executive Officer
Dated as of April 26, 1999 THE BANK OF NEW YORK, as Trustee
By: /S/ Michael Culhane
Name: Michael Culhane
Title: Vice President
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A-1
EXHIBIT A
(Face of Note)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITARY") TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.1
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION.
EACH HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (5) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH TRANSFER,
EXECUTES AND DELIVERS TO THE COMPANY AND THE TRUSTEE A LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND AN OPINION OF COUNSEL
IF THE COMPANY OR THE TRUSTEE SO REQUESTS OR (6) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (AND BASED
ON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), SUBJECT IN EACH OF THE
FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT IT WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE
RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
- -------------------
1 This paragraph should be included only if the Note is issued in global
form.
A-1
<PAGE>
8 1/4% Senior Subordinated Notes due 2011
No. $__________
IRON MOUNTAIN INCORPORATED
promises to pay to ___________________________ or registered assigns, the
principal sum of ____________________________ Dollars on ______, 20[__].
Interest Payment Dates: January 1 and July 1.
Record Dates: December 15 and June 15.
CUSIP No. [_________]
[Every Global Note authenticated and delivered hereunder will bear a legend in
substantially the following form:]2
[This Note is a Global Note within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Note may not be transferred to, or registered or
exchanged for Notes registered in the name of, any Person other than the
Depositary or a nominee thereof, and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Note
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, this Note will be a Global Note subject to the foregoing,
except in such limited circumstances.]2
IRON MOUNTAIN INCORPORATED
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
[SEAL]
Dated:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee
By: _____________________________
Authorized Signatory
- -------------------
2 This paragraph should be included only if the Note is issued in global
form.
A-2
<PAGE>
(Back of Note)
8 1/4% SENIOR SUBORDINATED NOTE
DUE 2011
Capitalized terms used herein have the meanings assigned to
them in the Indenture (as defined below) unless otherwise indicated.
1. Interest. Iron Mountain Incorporated, a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at the rate and in the manner specified below.
The Company shall pay in cash interest on the principal amount
of this Note at the rate per annum of 8 1/4%. The Company will pay interest
semi-annually in arrears on January 1 and July 1 of each year, commencing on
July 1, 1999 or if any such day is not a Business Day (as defined in the
Indenture), on the next succeeding Business Day (each an "Interest Payment
Date"), to Holders of record on the immediately preceding December 15 and June
15.
Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of the original issuance of the Notes. To the extent lawful, the Company
shall pay interest on overdue principal at the rate of 1% per annum in excess of
the then applicable interest rate on the Notes; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) at the
same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the record date next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date. The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Company, however, may pay principal,
premium, if any, and interest by check payable in such money. It may mail an
interest check to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without notice to any Holder. The Company or any
Restricted Subsidiary may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of April 26, 1999 (the "Indenture") between the Company, the Restricted
Subsidiaries named therein and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb) as in
effect on the date of the Indenture. The Notes are subject to all such terms,
and Holders of the Notes are referred to the Indenture and such act for a
statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes. The Notes are unsecured
general obligations of the Company limited to $150,000,000 in aggregate
principal amount.
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5. Optional Redemption. Prior to July 1, 2004, the Notes will
be subject to redemption at any time at the option of the Company, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the Make-Whole
Price, plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable redemption date. On and after July 1, 2004 the Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on July 1 of the years indicated below:
Year Percentage
2004............................................. 104.125%
2005............................................. 102.750%
2006............................................. 101.375%
2007 and thereafter ............................. 100.000%
Notwithstanding the foregoing, at any time prior to July 1,
2002, the Company may redeem up to 35% of the initial principal amount of the
Notes originally issued with the net proceeds of one or more Qualified Equity
Offerings at a redemption price equal to 108.25% of the principal amount of such
Notes, plus accrued and unpaid interest and Liquidated Damages, if any, to the
date of redemption; provided, that at least 65% of the principal amount of Notes
originally issued remains outstanding immediately after the occurrence of any
such redemption and that such redemption occurs within 60 days following the
closing of any such Qualified Equity Offering.
6. Mandatory Redemption. Except as described in paragraph 7
below, the Company shall not be required to make sinking fund or redemption
payments with respect to the Notes.
7. Redemption or Repurchase at Option of Holder. This Note is
subject to purchase at the option of the Holder upon the circumstances set forth
in Section 3.09 and 4.14 of the Indenture.
8. Notice of Redemption. Notice of redemption shall be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder of Notes to be redeemed at its registered address. Notes may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date, interest ceases to
accrue on Notes or portions of them called for redemption.
9. Subordination. The Notes (a) rank pari passu with the 1996
Notes (as defined in the Indenture), (b) rank pari passu with the 1997 Notes (as
defined in the Indenture) and (c) are subordinated to Senior Debt (as defined in
the Indenture) (whether outstanding on the
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date of the Indenture or thereafter created, incurred, assumed or guaranteed)
and all Obligations (as defined in the Indenture) with respect thereto. To the
extent provided in the Indenture, Senior Debt must be paid in full in cash
before the Notes may be paid. The Company agrees, and each Holder by accepting a
Note agrees, to the subordination and authorizes the Trustee to give it effect.
10. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Note or portion of a Note selected for redemption. Also, it need not exchange or
register the transfer of any Notes for a period of 15 days before the mailing of
a notice of redemption of Notes, or during the period between a record date and
the corresponding Interest Payment Date.
11. Persons Deemed Owners. Prior to due presentment to the
Trustee for registration of the transfer of this Note, the Trustee, any Agent,
the Company and the Guarantors may deem and treat the Person in whose name this
Note is registered as its absolute owner for the purpose of receiving payment of
principal of, premium, if any, and interest on this Note and for all other
purposes whatsoever, whether or not this Note is overdue, and none of the
Trustee, any Agent, the Company or any Guarantor shall be affected by notice to
the contrary. The registered holder of a Note shall be treated as its owner for
all purposes.
12. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
Notes), and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes). Without
the consent of any Holder, the Indenture or the Notes may be amended to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for assumption of the
Company's or any Restricted Subsidiary's obligations to Holders in the case of a
merger or consolidation or to make any change that would provide any additional
rights or benefits to the Holders or that does not adversely affect the rights
of any Holder under the Indenture or to comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
13. Defaults and Remedies. Events of Default include: default
for 30 days in the payment when due of interest or Liquidated Damages (as
defined in the Indenture) on the Notes (whether or not prohibited by the
subordination provisions of the Indenture); default in payment when due of
principal of or premium, if any, on the Notes (whether or not prohibited by the
subordination provisions of the Indenture); failure by the Company to comply
with Section 4.14 of the Indenture; failure by the Company or the Restricted
Subsidiaries for 60 days after
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<PAGE>
notice from the Trustee or the Holders of not less than 25% of the aggregate
principal amount of the Notes outstanding to comply with any of its other
agreements in the Indenture or the Notes; default under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries) whether such Indebtedness or Guarantee now
exists, or is created after the date of the Indenture, if (a) such default
results in the acceleration of such Indebtedness prior to its express maturity
or shall constitute a default in the payment of such Indebtedness at final
maturity of such Indebtedness and (b) the principal amount of such Indebtedness
that has been accelerated or not paid at maturity, together with the principal
amount of any other Indebtedness that has been accelerated or not paid at
maturity, exceeds $10.0 million; failure by the Company or any of its
Subsidiaries to pay final judgments aggregating in excess of $10.0 million,
which judgments remain unpaid, undischarged or unstayed for a period of 60 days;
except as permitted by the Indenture, any Subsidiary Guarantee issued by a
Restricted Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Restricted Subsidiary, or any Person acting on behalf of any
Restricted Subsidiary, shall deny or disaffirm its obligations under its
Subsidiary Guarantees; and certain events of bankruptcy or insolvency with
respect to the Company or any of its Subsidiaries. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately, except that in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, relating to the Company
or any Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice; provided, however, that if any Obligation with
respect to Senior Bank Debt is outstanding pursuant to the Credit Agreement upon
a declaration of acceleration of the Notes, the principal, premium, if any, and
interest on the Notes will not be payable until the earlier of (1) the day which
is five Business Days after written notice of acceleration is received by the
Company and the Credit Agent, and (2) the date of acceleration of the
Indebtedness under the Credit Agreement. Holders of the Notes may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal, interest or Liquidated Damages) if it determines that
withholding notice is in their interest. The Company must furnish an annual
compliance certificate to the Trustee.
14. Subsidiary Guarantees. Payment of principal of, premium,
if any, and interest (including interest on overdue principal, premium, if any,
and interest, if lawful) on the Notes is guaranteed on an unsecured, senior
subordinated basis by the Guarantors pursuant to Article 11 of the Indenture.
15. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company, any Restricted Subsidiary
or their respective Affiliates, and may otherwise deal
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<PAGE>
with the Company, any Restricted Subsidiary or their respective Affiliates, as
if it were not Trustee.
16. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder, as such, of the
Company or any Guarantor shall have any liability for any obligations of the
Company or any Guarantor under the Notes, the Subsidiary Guarantees, the
Indenture or the Registration Rights Agreement or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Note and the related Subsidiary Guarantees, if any, waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
17. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.3
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Note, by his acceptance thereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, dated as of April 26, 1999,
among the Company and the parties named on the signature page thereof (the
"Registration Rights Agreement"), including but not limited to the obligations
of the Holders with respect to a registration and the indemnification of the
Company and the Purchasers (as defined therein) to the extent provided therein.
21. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE SUBSIDIARY
GUARANTEES.
- -------------------
3 This paragraph should be included only if the Note is issued in global
form.
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<PAGE>
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Request may be made to:
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, MA 02111
Telecopier No.: (617) 350-7881
Attention: President
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<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date: __________________
Your Signature:_____________________________
(Sign exactly as your name appears on on the
face of this Note)
Signature Guarantee:
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.14 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $___________
Date: __________________
Your Signature:_____________________________
(Sign exactly as your name appears on on the
face of this Note)
Tax Identification No.:_____________________
Signature Guarantee:
A-10
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES4
The following exchanges of a part of this Global Note for
Definitive Notes have been made:
<TABLE>
<CAPTION>
Principal Amount of
Amount of decrease Amount of increase in this Global Note
in Principal Amount Principal Amount of following such Signature of
of this Global this Global Note decrease (or authorized signatory
Date of Exchange Note increase) of Trustee
<S> <C> <C> <C> <C>
</TABLE>
- -------------------
4 This should be included only if the Note is issued in global form.
A-11
<PAGE>
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY FUTURE GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of ________________, between __________________ (the "Guarantor"), a
subsidiary of Iron Mountain Incorporated (or its successor), a Delaware
corporation (the "Company"), and The Bank of New York, a New York banking
corporation, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of April 26, 1999,
providing for the issuance of an aggregate principal amount of $150,000,000 of 8
1/4% Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, Section 4.13 of the Indenture provides that under
certain circumstances the Company is required to cause the Guarantor to execute
and deliver to the Trustee a supplemental indenture pursuant to which the
Guarantor shall unconditionally guarantee all of the Company's obligations under
the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set
forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees that its
obligations to the Holder and the Trustee pursuant to this Subsidiary Guarantee
shall be as expressly set forth in Article 11 of the Indenture and in such other
provisions of the Indenture as are applicable to the Guarantors, and reference
is made to the Indenture for the precise terms of this Supplemental Indenture.
The terms of Article 11 of the Indenture and such other provisions of the
Indenture as are applicable to the Guarantors are incorporated herein by
reference.
3. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
(a) To evidence its Subsidiary Guarantee set forth in this
Supplemental Indenture, the Guarantor hereby agrees that a notation of
such Subsidiary Guarantee substantially in the form of Exhibit C to the
Indenture shall be endorsed by an Officer of
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<PAGE>
such Guarantor on each Note authenticated and delivered by the Trustee
after the date hereof.
(b) Notwithstanding the foregoing, the Guarantor hereby agrees
that its Subsidiary Guarantee set forth herein shall remain in full
force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee.
(c) If an Officer whose signature is on this Supplemental
Indenture or on the Subsidiary Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which a Subsidiary
Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due
delivery of the Subsidiary Guarantee set forth in this Supplemental
Indenture on behalf of the Guarantor.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder of the Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor under the
Notes, any Subsidiary Guarantee, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes.
5. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture and the
Subsidiary Guarantee.
6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the date first above
written.
Dated: _______________, _______
[Guarantor]
By: _________________________________________
Name:
Title:
Dated: _______________, _______
The Bank of New York
By: _________________________________________
Name:
Title:
B-3
<PAGE>
EXHIBIT C
FORM OF NOTATION ON SENIOR SUBORDINATED NOTE
RELATING TO SUBSIDIARY GUARANTEE
Each Guarantor set forth below and each Restricted Subsidiary of the
Company which in accordance with Section 4.13 of the Indenture is required to
guarantee the obligations of the Company under the Notes, upon execution of a
Supplemental Indenture, jointly and severally unconditionally guarantees (i) the
due and punctual payment of the principal of and interest and Liquidated
Damages, if any, on the Notes, whether at the maturity or interest payment or
mandatory redemption date, by acceleration, call for redemption or otherwise,
and of interest on the overdue principal of and interest, if any, on the Notes
and all other obligations of the Company to the Holders or the Trustee under the
Indenture or the Notes and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or otherwise.
The obligations of each Guarantor to the Holder and to the Trustee
pursuant to this Subsidiary Guarantee and the Indenture are as expressly set
forth in Article 11 of the Indenture and in such other provisions of the
Indenture as are applicable to Guarantors, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture and such other provisions of the Indenture as are
applicable to Guarantors are incorporated herein by reference. This Subsidiary
Guaranty is subject to release as described in Sections 4.13 and 11.17 of the
Indenture, and the obligations of each Guarantor under this Subsidiary Guaranty
and the Indenture are limited as provided in Section 11.15 of the Indenture.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon each Guarantor and its successors and assigns
until full and final payment of all of the Company's obligations under the Notes
and the Indenture and shall inure to the benefit of the successors and assigns
of the Trustee and the Holders and, in the event of any transfer or assignment
of rights by any Holder or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. This is
a guarantee of payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
[RESTRICTED SUBSIDIARY]
By: _______________________________________
Name:
Title:
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<PAGE>
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: [Series A] [Series B] 8 1/4% Senior Subordinated Notes due 2011 (the
"Notes") of Iron Mountain Incorporated.
This Certificate relates to $______ principal amount of Notes held in *
book-entry or * definitive form by _______________________ (the "Transferor").
The Transferor, by written order, has requested the Trustee to exchange or
register the transfer of a Note or Notes. In connection with such request and in
respect of each such Note, the Transferor does hereby certify that Transferor is
familiar with the Indenture relating to the above captioned Notes and the
transfer of this Note does not require registration under the Securities Act of
1933, as amended (the "Securities Act") because such Note:
[ ] is being acquired for the Transferor's own account, without transfer;
[ ] is being transferred pursuant to an effective registration statement;
[ ] is being transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act), in reliance on such Rule 144A;
[ ] is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;**
[ ] is being transferred pursuant to Rule 144 under the Securities Act;**
or
[ ] is being transferred pursuant to another exemption from the
registration requirements of the Securities Act (explain:
_______________________________________________________________________
___________________________________________________________________).**
_______________________________________
[INSERT NAME OF TRANSFEROR]
By:_______________________________
Date:_____________________
* Check applicable box.
** If this box is checked, this certificate must be accompanied
by an opinion of counsel to the effect that such transfer is
in compliance with the Securities Act.
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<PAGE>
EXHIBIT E
FORM OF PURCHASER LETTER
[DATE]
THE BANK OF NEW YORK, as Trustee
101 Barclay Street, 21st Floor
New York, New York 10286
IRON MOUNTAIN INCORPORATED
745 Atlantic Avenue
Boston, Massachusetts 02111
[NAME OF SELLER ]
Re: Iron Mountain Incorporated 8 1/4% Senior Subordinated Notes due
2011
We are delivering this letter in connection with our proposed purchase
of $_______ aggregate principal amount of 8 1/4% Senior Subordinated Notes due
2011 (the "Notes") of Iron Mountain Incorporated (the "Company").
We hereby confirm that:
1. We have received all information relating to the Notes as
we deem necessary in order to make our investment decision.
2. We are an institutional "accredited investor" (as defined
in Rule 501 (a)(1), (2), (3) or (7) under the Securities Act of 1933,
as amended (the "Securities Act")) purchasing for our own account or
for the account of such an institutional "accredited investor," and we
are acquiring the Notes for investment purposes and not with a view to,
or for offer or sale in connection with, any distribution in violation
of the Securities Act or the laws of any state or other jurisdiction,
and we have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment.
3. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture relating to the Notes (the "Indenture") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Notes except in compliance with, such restrictions and conditions
of the Securities Act.
4. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be
offered or sold except as described below. We agree, on our own behalf
and on behalf of any account for which we are purchasing the Notes, and
each subsequent holder of the Notes by its acceptance thereof will
agree, not to offer, sell or otherwise transfer such Notes prior to the
date which is two years (or such shorter period as may be promulgated
by the Securities and Exchange Commission pursuant to Rule 144 under
the Securities Act) after the later of the date of original issue of
such Notes and the last date on which the Company or any affiliate of
the Company was the owner of such Notes (the "Resale Restriction
Termination Date"), except (1) to the Company, (2) pursuant to a
registration statement which has been declared effective under the
Securities Act, (3) to a person we reasonably believe is a "qualified
institutional buyer" as defined in Rule 144A in a transaction meeting
the
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<PAGE>
requirements of Rule 144A, (4) pursuant to offers and sales to non-U.S.
persons that occur outside the United States in a transaction meeting
the requirements of Rule 904 of Regulation S under the Securities Act,
(5) to an institutional "accredited investor" (as defined above) that
prior to such transfer, executes and delivers to the Company and the
Trustee (as defined in the Indenture) a signed letter, substantially
identical to this letter, containing certain representations and
agreements relating to the transfer of the Notes (the form of which
letter can be obtained from the Trustee), and, if requested by the
Company or the Trustee, an opinion of counsel (6) pursuant to the
exemption from registration provided by Rule 144 under the Securities
Act if available, or (7) pursuant to any other available exemption from
the registration requirements of the Securities Act (based upon an
opinion of counsel reasonably acceptable to the Company if the Company
so requests), subject in each of the foregoing cases, to any
requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or
their control and to compliance with applicable securities laws of any
state or other jurisdiction. The foregoing restrictions on resale will
not apply subsequent to the Resale Restriction Termination Date, and we
further agree to provide to any person purchasing any of the Notes from
us a notice advising such purchaser that resales of the Notes are
restricted as stated herein. We understand that any Notes acquired by
us (other than pursuant to Rule 144A) will be in the form of definitive
physical certificates and that such certificates will bear a legend
reflecting the substance of this paragraph.
5. We understand that, on any proposed offer, sale or other
transfer of any Notes prior to the Resale Restriction Termination Date,
we will be required to furnish to the Trustee and the Company such
certifications, legal opinions, and other information as either of them
may reasonably require to confirm that the proposed transaction
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend reflecting the substance
of this and the preceding paragraph.
We acknowledge that you, the Trustee and others are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. We agree to notify
you promptly in writing if any of our representations or warranties herein
ceases to be accurate and complete.
E-2
<PAGE>
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
____________________________________________
(Name of Purchaser)
By: ________________________________________
Name:
Title:
Address:
E-3
EXHIBIT 10.2
Exchange and Registration Rights Agreement
This Exchange and Registration Rights Agreement (this
"Agreement") dated as of April 26, 1999 among Iron Mountain Incorporated (the
"Company"), a Delaware corporation, the Company's subsidiaries a party hereto
(the "Guarantors") and Bear, Stearns & Co. Inc. (the "Representative") on behalf
of itself and the other Initial Purchasers (the "Initial Purchasers")
signatories hereto, which Initial Purchasers have agreed to purchase from the
Company $150,000,000 in aggregate principal amount of the Company's 8 1/4%
Senior Subordinated Notes due 2011 (the "Notes") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated as of April 19, 1999 (the "Purchase Agreement"), among the Company, the
Guarantors, the Representative and each of the other Initial Purchasers. The
Notes will be issued pursuant to an Indenture (the "Indenture") to be dated as
of April 26, 1999 between the Company, the Guarantors and The Bank of New York,
as trustee (the "Trustee"). As an inducement to the Initial Purchasers to enter
into the Purchase Agreement, the Company agrees with the Initial Purchasers, for
the benefit of the holders of the Notes and the Registered Notes (as herein
defined), as follows:
Section 1. Certain Defined Terms.
(a) As used in this Agreement, the following capitalized terms
shall have the following meanings:
"Broker-Dealer" means any broker or dealer registered under
the Exchange Act.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which the banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Commission" means the United States Securities and Exchange
Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, (i) the filing and declaration of effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to
the Registered Notes to be issued in the Registered Exchange Offer,
(ii) maintaining the continuous effectiveness of such Exchange Offer
Registration Statement and keeping the Registered Exchange Offer open
for a period of not less than 20 Business Days after the date of the
mailing of the Prospectus pursuant to Section 2(d)(i) hereof and (iii)
the delivery by the Company to the Registrar under the Indenture of the
Registered Notes in the same aggregate principal amount as the
aggregate principal amount of the Notes that were duly tendered by
Holders thereof pursuant to the Registered Exchange Offer, and
"Consummated" or "Consummation" shall have a correlative meaning.
<PAGE>
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated
thereunder.
"Exchange Offer Registration Statement" means a registration
statement (together with the Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and materials incorporated by reference
therein) with respect to the Registered Exchange Offer.
"Holder" means any Person who is the registered or beneficial
owner of the Notes or the Registered Notes, as the case may be.
"NASD" means the National Association of Securities Dealers,
Inc.
"Person" means an individual, partnership, corporation, joint
stock company, joint venture, trust, unincorporated organization or a
government, agency or political subdivision thereof, firm or other
entity.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented, including, without limitation,
by any post-effective amendments thereto, and all material incorporated
by reference into such prospectus.
"Registration Statement" means the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the context requires.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Shelf Registration Statement" means a registration statement
filed for a delayed or continuous period pursuant to Rule 415 or any
similar rule that may be adopted by the Commission under the Securities
Act (together with the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and materials incorporated by reference therein) with respect
to a Shelf Registration.
"TIA" means the United States Trust Indenture Act of 1939, as
amended and in effect on the date of the Indenture.
"Transfer Restricted Securities" means each Note and each
Registered Note, the Holder of which is subject to prospectus delivery
requirements of the Securities Act in order to sell such Note or
Registered Note, until the occurrence of any of the following events:
(i) the first date on which such Note may be
exchanged for a Registered Note in the Registered Exchange
Offer, if following such exchange such Holder would be
entitled to resell such Registered Note to the public without
complying with the prospectus delivery requirements of the
Securities Act;
(ii) the date on which such Note has been registered
pursuant to an effective Shelf Registration Statement under
the Securities Act and disposed of in
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<PAGE>
accordance with the "Plan of Distribution" section of the
Prospectus contained in such Shelf Registration Statement;
(iii) the date on which such Note is sold to the
public pursuant to Rule 144 under the Securities Act or by a
Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein); or
(iv) such Note or Registered Note, as the case may
be, shall have ceased to be outstanding.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
---- -------
Agent 10(h)
Agreement Preamble
Company Preamble
Indemnified Holder 7(a)
Indenture Preamble
Initial Purchasers Preamble
Interest Rate Increase 8
Issue Date 2(a)(i)
Losses 7(a)
Notes Preamble
Participating Broker-Dealer 4(a)
Purchase Agreement Preamble
Registered Exchange Offer 2(a)
Registered Notes 2(a)
Registration Default 8
Representative Preamble
Shelf Registration 3(a)
Trustee Preamble
Section 2. Registered Exchange Offer.
(a) The Company and the Guarantors shall:
(i) prepare and, not later than 75 calendar days
after the Issue Date (as defined in the Indenture), use their
best efforts to file with the Commission an Exchange Offer
Registration Statement on an appropriate form under the
Securities Act with respect to a proposed offer to exchange
(the "Registered Exchange Offer") any and all of the
outstanding Notes (including, if permitted by the then
prevailing interpretations of the staff of the Commission, any
Notes held by any of the Initial Purchasers having the status
of an unsold allotment in the initial distribution) for a like
aggregate principal amount of the Company's 8 1/4%
3
<PAGE>
Senior Subordinated Notes due 2011 guaranteed by the
Guarantors (the "Registered Notes");
(ii) unless it would be a violation of applicable law
or Commission staff interpretation, use their best efforts to
cause the Exchange Offer Registration Statement to become
effective under the Securities Act as soon as practicable
thereafter, but in no event later than 180 calendar days after
the Issue Date, and to keep the Exchange Offer Registration
Statement effective for a period of 180 calendar days after
the Consummation of the Registered Exchange Offer;
(iii) in connection with the foregoing, use their
best efforts to file (A) all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in
order to cause such Exchange Offer Registration Statement to
become effective and (B) cause all necessary filings, if any,
in connection with the registration and qualification of the
Registered Notes to be made under the "blue sky" laws of such
jurisdictions as are necessary to permit Consummation of the
Registered Exchange Offer except that in no event shall the
Company or the Guarantors be obligated in connection therewith
to qualify as a foreign corporation or to execute a general
consent to service of process or to take any other action that
would subject it or them to service of process in suits in any
jurisdiction other than those arising out of the offering or
sale of the Notes in such jurisdiction pursuant to such
Exchange Offer Registration Statement; and
(iv) upon the effectiveness of the Exchange Offer
Registration Statement, promptly commence the Registered
Exchange Offer to enable each Holder of the Notes (other than
Holders who are affiliates of the Company (within the meaning
of the Securities Act) or underwriters (as defined in the
Securities Act) with respect to the Registered Notes) to
exchange the Notes for Registered Notes.
The Company and the Guarantors shall cause the Exchange Offer
Registration Statement and the related Prospectus, as of the effective
date of such Exchange Offer Registration Statement, (i) to comply with
the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading.
(b) The Company and the Guarantors shall cause the Registered
Exchange Offer to be consummated in compliance with the Securities Act,
the Exchange Act and all other applicable laws and regulations. No
securities other than the Registered Notes shall be included in the
Exchange Offer Registration Statement. The Company and the Guarantors
shall use their best efforts to cause the Registered Exchange Offer to
be Consummated no later than 30 calendar days (or longer if required by
applicable law) after the effective date of the Exchange Offer
Registration Statement. The Registered Exchange Offer shall be on an
appropriate form under the Securities Act as to permit resales of
Registered Notes by delivering the Prospectus contained in the Exchange
Offer Registration Statement.
4
<PAGE>
(c) The Company and the Guarantors shall use their best
efforts to keep the Exchange Offer Registration Statement continuously
effective and to amend and supplement the Prospectus contained therein
in order to permit such Prospectus to be lawfully delivered by all
persons subject to the prospectus delivery requirements of the
Securities Act for a period of up to 180 calendar days after the
Consummation of the Registered Exchange Offer (or such longer period if
extended pursuant to Section 4(c)(ix)).
(d) In connection with the Registered Exchange Offer, the
Company and the Guarantors shall:
(i) mail, or cause to be mailed, to each Holder of
the Notes a copy of the Prospectus forming a part of the
Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for a
period of not less than 20 Business Days after the date notice
thereof is mailed to the Holders of the Notes (or longer if
required by applicable law);
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York; and
(iv) permit Holders of the Notes to withdraw tendered
Notes at any time prior to the close of business, New York
time, on the last Business Day on which the Registered
Exchange Offer shall remain open (the "Exchange Date").
(e) As soon as practicable after the Exchange Date, the
Company and the Guarantors shall:
(i) accept for exchange all Notes duly tendered and
not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver or cause to be delivered to the Trustee
for cancellation all Notes or portions thereof so accepted for
exchange by the Company;
(iii) execute and deliver to, or cause to be
delivered to, the Trustee for authentication and delivery,
Registered Notes in an aggregate principal amount equal to the
aggregate principal amount of the Notes so accepted for
exchange; and
(iv) cause the Trustee to authenticate and deliver
promptly to each Holder of the Notes accepted for exchange,
Registered Notes having an aggregate principal amount at
maturity equal to the aggregate principal amount at maturity
of the Notes surrendered by such Holder and accepted for
exchange.
5
<PAGE>
Section 3. Shelf Registration.
(a) If:
(i) because of any change in law or in then
prevailing interpretations of the staff of the Commission, the
Company is not permitted to effect a Registered Exchange Offer
as contemplated by Section 2 hereof or Holders of the Notes
(other than Holders who would not be permitted to participate
in the Registered Exchange Offer) would not receive freely
tradeable Registered Notes upon the Consummation of the
Registered Exchange Offer, other than as the result of such
holder being an affiliate of the company,
(ii) the Registered Exchange Offer is not Consummated
within the earlier of 210 calendar days after the Issue Date
and 30 calendar days (or longer if required by applicable law)
after the date the Exchange Offer Registration Statement is
declared effective by the Commission, or
(iii) the Representative so requests with respect to
Notes acquired and held by the Initial Purchasers as part of
their initial distribution,
the Company and the Guarantors shall take the following actions:
(A) After the occurrence of one of the
events described in 3(a)(i), (ii) or (iii), the
Company and the Guarantors shall use their best
efforts to prepare and file with the Commission as
promptly as practicable a Shelf Registration
Statement on an appropriate form under the Securities
Act relating to the offer and sale by the Holders of
the Notes in accordance with the methods of
distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act (a
"Shelf Registration") and use their best efforts to
cause such Shelf Registration Statement to be
declared effective as promptly as practicable after
such filing but in no event later than 90 calendar
days after the occurrence of one of the events
described in 3(a)(i), (ii) or (iii); provided that,
with respect to Notes acquired and held by the
Initial Purchasers as part of an unsold allotment in
the initial distribution, the Company and the
Guarantors, at their option, may, if permitted by
then-current interpretations by the Commission's
staff, file a post-effective amendment to the
Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507
and/or 508, as applicable, in satisfaction of its
obligations under Section 3(a)(iii) with respect
thereto; and
(B) The Company and the Guarantors shall
keep the Shelf Registration Statement continuously
effective, and agrees to amend or supplement the
prospectus contained therein (and use their best
efforts to cause any such amendment to become and
remain effective) in order to permit the prospectus
included therein to be available for resales of, and
lawfully delivered by the Holders of, the Notes
covered thereby, until the
6
<PAGE>
earliest of (x) the second anniversary of the Issue
Date (or for such longer period if extended pursuant
to Section 4(i)(ix)), (y) such time as all the Notes
covered by such Shelf Registration Statement have
been sold pursuant thereto or (z) the date on which
all persons that are not affiliates may resell the
Notes pursuant to Rule 144(k) under the Securities
Act or the date on which the Notes otherwise cease to
be Transfer Restricted Securities.
(b) The Company and the Guarantors shall cause any Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of such Shelf Registration
Statement, amendment or supplement, (i) to comply with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading.
Section 4. Registration Procedures.
(a) Registered Exchange Offer. In connection with the
Registered Exchange Offer:
(i) the Company and the Guarantors shall comply with
all of the provisions of Section 4(c) (other than those that
are not applicable);
(ii) prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall make the following
representations (in substantially the form set forth below) to
the staff of the Commission:
(A) that the Company is registering the
Registered Notes and the Registered Exchange Offer in
reliance on the position of the staff of the
Commission enunciated in "Exxon Capital Holdings
Corporation" SEC No-Action Letter (the "Exxon Capital
Letter") (available May 13, 1988), "Morgan Stanley
and Co., Inc." SEC No-Action Letter (available June
5, 1991), and "Shearman & Sterling" SEC No-Action
Letter (available July 2, 1993); and
(B) that the Company has not entered into
any arrangement or understanding with any person to
distribute the Registered Notes to be received in the
Registered Exchange Offer and that, to the best of
the Company's information and belief, each Person
participating in the Registered Exchange Offer is
acquiring the Registered Notes in its ordinary course
of business and has no arrangement or understanding
with any person to participate in the distribution of
the Registered Notes to be received in the Registered
Exchange Offer. In this regard, the Company will make
each person participating in the Registered Exchange
Offer aware (through the Prospectus included in the
Exchange Offer
7
<PAGE>
Registration Statement or otherwise) that, if the
Registered Notes and the Registered Exchange Offer
are being registered for the purpose of secondary
resales of the Registered Notes, any Holder using the
Registered Exchange Offer to participate in a
distribution of the Registered Notes (1) could not
rely on the staff position enunciated in the Exxon
Capital Letter or similar letters and (2) must comply
with registration and prospectus delivery
requirements of the Securities Act in connection with
any secondary resale transaction of the Registered
Notes. The Company acknowledges that such a secondary
resale transaction should be covered by an effective
registration statement containing the selling
security holder information required by Item 507 of
Regulation S-K;
(iii) the Company will require each Holder that is a
Broker-Dealer and that is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Notes acquired for its
own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer"), to
include a representation in such Participating Broker-Dealer's
letter of transmittal with respect to the Registered Exchange
Offer that such Participating Broker-Dealer has not entered
into any arrangement or understanding with the Company or any
affiliate of the Company to distribute the Registered Notes;
and
(iv) the Company (1) will make each Person
participating in the Registered Exchange Offer aware (through
the prospectus included in the Exchange Offer Registration
Statement or otherwise) that any Broker-Dealer who holds Notes
acquired for its own account as a result of market-making
activities or other trading activities, and who receives
Registered Notes in exchange for such Notes pursuant to the
Registered Exchange Offer, may be a statutory underwriter and
in connection with any resale of such Registered Notes must
deliver a Prospectus meeting the requirements of the
Securities Act and describing the methods by which
Participating Broker-Dealers may resell such Registered Notes,
and (2) will include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order
to participate in the Registered Exchange Offer the following
additional provision:
"If the undersigned is a broker-dealer
holding Notes acquired for its own account
as a result of market-making activities or
other trading activities, the undersigned
hereby acknowledges that it will deliver a
prospectus meeting the requirements of the
Securities Act in connection with any resale
of Registered Notes received in respect of
such Notes pursuant to the Registered
Exchange Offer"
and the transmittal letter or similar documentation may also
include a statement to the effect that by so acknowledging and
by delivering a prospectus, a Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the
Securities Act;
8
<PAGE>
(v) as a condition to its participation in the
Registered Exchange Offer pursuant to the terms of this
Agreement, each Holder of the Notes who tenders such Notes
pursuant to the Registered Exchange Offer shall furnish a
written representation to the Company (which may be contained
in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that by accepting
the Registered Exchange Offer, such Holder represents to the
Company that:
(A) it is not an affiliate of the Company
(within the meaning of the Securities Act);
(B) it is not engaged in and does not intend
to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of
the Registered Notes to be issued in the Registered
Exchange Offer;
(C) it is acquiring the Registered Notes in
its ordinary course of business; and
(D) if it is a Participating Broker-Dealer
holding Notes acquired for its own account as a
result of market-making activities or other trading
activities, it acknowledges that it will deliver a
prospectus meeting the requirements of the Securities
Act in connection with any resale of Registered Notes
received in respect of such Notes pursuant to the
Registered Exchange Offer;
and the transmittal letter or similar documentation may also
include a statement to the effect that by so acknowledging and
by delivering a prospectus, a Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the
Securities Act; and
(vi) the Company shall include within the Prospectus
contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," in form and substance
reasonably acceptable to the Representative, which shall
contain:
(A) a statement substantially to the effect
that any Broker-Dealer and any Holder using the
Registered Exchange Offer to participate in a
distribution of the Registered Notes to be acquired
in the Registered Exchange Offer:
(I) could not under Commission
policy as in effect on the date of this
Agreement rely on the position of the
Commission enunciated in Morgan Stanley and
Co. Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May
13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling
(available July 2, 1993), and similar
no-action letters, and
9
<PAGE>
(II) must comply with the
registration and prospectus delivery
requirements of the Securities Act in
connection with a secondary resale
transaction of the Registered Notes and that
such a secondary resale transaction should
be covered by an effective registration
statement containing the selling security
holder information required by Item 507 or
508, as applicable, of Regulation S-K; and
(B) a summary statement of the positions
taken or policies made by the Staff of the Commission
with respect to the potential "underwriter" status of
any Participating Broker-Dealer.
Such "Plan of Distribution" section shall also allow the use
of the Prospectus by Participating Broker-Dealers for a period of 180 calendar
days from the Consummation of the Exchange Offer, or such shorter period as will
terminate when all the Notes acquired by Participating Broker-Dealers have been
exchanged for the Registered Notes and resold by such broker-dealers, and
include a statement to the effect that any Broker-Dealer who holds Notes
acquired for its own account as a result of market-making activities or other
trading activities, and who receives Registered Notes in exchange for such Notes
pursuant to the Registered Exchange Offer, may be a statutory underwriter and
must deliver a Prospectus meeting the requirements of the Securities Act in
connection with any resale of such Registered Notes and that any profit or
commissions received by such Broker-Dealer may be deemed to be underwriting
compensation under the Securities Act, and describing the means by which
Participating Broker-Dealers may resell the Registered Notes. The "Plan of
Distribution" section in the Prospectus contained in the Exchange Offer
Registration Statement shall not name any such Participating Broker-Dealer or
disclose the amount of Notes held by any such Participating Broker-Dealer except
to the extent required by Commission policy.
(b) Shelf Registration Statement. In connection with any Shelf
Registration Statement, the Company and the Guarantors shall comply
with all the provisions of Section 4(c) (other than those that are not
applicable) and shall effect such registration to permit the resale of
Notes being sold in accordance with the intended method or methods of
distribution set forth in the Shelf Registration Statement.
(c) Registration Procedures. In connection with any
Registration Statement and any Prospectus required by this Agreement,
the Company and the Guarantors shall:
(i) prepare and file with the Commission a
Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the
Company and (y) shall, in the case of a Shelf Registration
Statement, be available for the sale of Notes by the selling
Holders thereof and (z) shall comply as to form with the
requirements of the Securities Act and the rules and
regulations thereunder, and include all financial statements
required by the Commission to be filed therewith, and use
their best efforts to cause such Registration Statement to
become effective and to keep such Registration Statement
continuously effective for the period provided for in Section
2, in the
10
<PAGE>
case of an Exchange Offer Registration Statement, and for the
period provided for in Section 3, in the case of a Shelf
Registration Statement;
(ii) (A) prepare and file with the Commission such
amendments and post-effective amendments to such Registration
Statement as may be necessary to keep such Registration
Statement effective for the applicable period set forth in
Section 2 or Section 3, as the case may be; and (B) cause each
Prospectus to be supplemented by any required prospectus
supplement, and, as so supplemented, cause the Prospectus to
be filed pursuant to Rule 424 under the Securities Act and to
comply in all material respects with the applicable provisions
of Rules 424 and 430A under the Securities Act in a timely
manner;
(iii) advise the Initial Purchasers, each Holder of
the Notes included in the Shelf Registration Statement and,
with respect to the Exchange Offer Registration Statement, any
Participating Broker-Dealer from whom the Company has received
prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer:
(A) when each Registration Statement or any
amendment thereto has been filed with the Commission
and when each such Registration Statement or any
post-effective amendment thereto has been declared
effective;
(B) of any request by the Commission for
amendments or supplements to a Registration Statement
or the Prospectus included therein or for additional
information;
(C) of the issuance by the Commission of any
stop order suspending the effectiveness of a
Registration Statement or the initiation or
threatening of any proceedings for that purpose;
(D) of the receipt by either of the Company
or its legal counsel of any notification with respect
to the suspension of the qualification of the Notes
or the Registered Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding
for such purpose;
(E) when the prospectus contained in any
Registration Statement may not be used for offers or
sales of the Registered Notes because (x) of the
existence of any fact or the happening of any event
(including any material non-public information) that
makes untrue any statement of a material fact made in
the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document
incorporated by reference therein, or that requires
the making of any additions to or changes in the
Registration Statement or the Prospectus in order to
make the statements therein not misleading or (y)
such prospectus shall not contain the current
information required by the Securities Act and the
rules and regulations of the Commission or (z) the
Company
11
<PAGE>
determines that it is advisable to suspend the use of
the Prospectus for no more than 15 days, no more than
twice in any given twelve month period, due to
pending material corporate developments or similar
material events that have not yet been publicly
disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company; it
being understood that any notice delivered pursuant
to this subparagraph need not specifically recite the
reasons for its delivery, provided that the Company
consults with the Representative prior to such
notice's delivery as to the reasons underlying such
notice;
(iv) use their best efforts to prevent the issuance
of any order of the Commission suspending the effectiveness of
a Registration Statement; and if at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Notes or
the Registered Notes under state securities or "blue sky"
laws, the Company and the Guarantors shall use their best
efforts to obtain the withdrawal of such order at the earliest
possible time, and provide prompt notice of the withdrawal of
any such order to each Holder of any Notes included in the
Shelf Registration Statement, and, with respect to the
Exchange Offer Registration Statement, to any Participating
Broker-Dealer participating in the Registered Exchange Offer;
(v) furnish to the Initial Purchasers, upon request,
and, in the case of a Shelf Registration, to each Holder of
any Notes included in the Shelf Registration Statement, and
counsel to the Initial Purchasers referred to in Section 5, a
reasonable time prior to filing with the Commission, copies of
any Registration Statement or any Prospectus included therein
and any amendments or supplements thereto (including all
documents incorporated by reference prior to the effectiveness
of such Registration Statement), which documents, other than
documents incorporated by reference, will be subject to the
review of such Initial Purchasers for a period of at least
five Business Days, and the Company shall use its best efforts
to reflect in each such document when so filed with the
Commission, such comments as the Representative or such
Holders reasonably may propose within five Business Days after
the receipt thereof;
(vi) promptly prior to the filing of any document
that is to be incorporated by reference into a Registration
Statement or Prospectus subsequent to the effectiveness
thereof (A) if requested, provide copies of such document to
any Holder of any Notes included in such Registration
Statement, to the Initial Purchasers and (B) make
representatives of the Company available for discussion of
such document and other customary due diligence matters, and
(C) use its best efforts to include such information in such
document prior to the filing thereof as Holders or the Initial
Purchasers may reasonably request;
(vii) (A) make available at reasonable times for
inspection by the Initial Purchasers and, in the case of a
Shelf Registration, Holders of any Notes included
12
<PAGE>
in such Registration Statement, and any attorney or accountant
retained by such Holder or the Initial Purchasers, or any
underwriter participating in any disposition pursuant to a
Shelf Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the
Company and the Guarantors and (B) cause the officers,
directors and employees of the Company to supply all
information reasonably requested by any such Holder, Initial
Purchaser, attorney, accountant or underwriter in connection
with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness, in each case, as is
customary for similar due diligence examinations; provided,
however, that the foregoing inspection and information
gathering shall, to the greatest extent possible, be
coordinated by and on behalf of such Holders, Initial
Purchasers and other parties and be limited to a reasonable
number of inspections in any 12-month period; it being
recognized that any such inspections undertaken in connection
with the release of quarterly or annual financial information
of the Company or other material event shall be deemed
reasonable; (viii) if requested by the Holders of a majority
of the principal amount of the Notes included in a Shelf
Registration Statement or the Initial Purchasers, (A) promptly
incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders or the Initial
Purchasers may reasonably request, and to which the Company
does not reasonably object, to have included therein,
including, without limitation, information relating to the
"Plan of Distribution" of the Notes, the purchase price being
paid therefor and any other terms of the offering of the Notes
to be sold in such offering, and (B) make all required filings
of any such Prospectus supplement or post-effective amendment
as promptly as practicable after the Company is notified of
the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(ix) upon the occurrence of any event of the kind
described in Section 4(c)(iii)(E) or any other event that
would cause such Registration Statement or the Prospectus
contained therein not to be effective and usable for resales
of Notes or Registered Notes during the period required by
this Agreement, promptly (except as contemplated by Section
2(c) or 3(a)(iii)(B) hereof) prepare a post-effective
amendment to the applicable Registration Statement or a
supplement to the related Prospectus and use their best
efforts to cause such amendment to be declared effective, or
file any other required document so that the Registration
Statement and the Prospectus, as thereafter delivered to
Holders of the Transfer Restricted Securities or the
purchasers of Transfer Restricted Securities, (A) will not
contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading and (B) will contain all current
information required by the Securities Act. If the Initial
Purchasers, the Holders of any Notes or Registered Notes
covered by a Registration Statement or any known Participating
Broker-Dealer is required by the terms of this Agreement to
suspend the use of a Prospectus until the requisite changes to
such Prospectus have been made, then
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the period of effectiveness of the applicable Shelf
Registration Statement provided for in Section 3 and the
Exchange Offer Registration Statement provided for in Section
2 shall each be extended by the number of days during the
period from and including the date such notice is required to
be given under this Agreement to and including the date when
the Initial Purchasers, each selling Holder covered by such
Registration Statement, and any known Participating
Broker-Dealer shall have received an amended or supplemented
Prospectus contemplated by this clause (ix) or shall have
received Advice (as defined below) from the Company;
(x) in the case of a Registered Exchange Offer,
deliver (A) to the Representative one manually signed copy of
the Exchange Offer Registration Statement and (B) to each of
the other Initial Purchasers at least one copy of the Exchange
Offer Registration Statement, in each case without charge and
with and any post-effective amendment thereto, including
financial statements and schedules, and, if the recipient
requests, all exhibits (including those, if any, incorporated
by reference);
(xi) in the case of a Registered Exchange Offer,
deliver to the Initial Purchasers, any Participating
Broker-Dealer and such other persons required to deliver a
Prospectus in connection with the offering and sale of the
Registered Notes following the Registered Exchange Offer,
without charge, as many copies of the final Prospectus
included in the Exchange Offer Registration Statement and any
amendment or supplement thereto as such persons may reasonably
request, and, in connection therewith, the Company and each of
the Guarantors hereby consents, subject to any notice by the
Company in accordance with this Section 4(c) of the existence
of any fact or event of the kind described in Section
4(c)(iii)(E), to the use of the Prospectus or any amendment or
supplement thereto by the Initial Purchasers, if necessary,
any Participating Broker-Dealer and such other persons as are
required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the
Registered Notes covered by the Prospectus, or any amendment
or supplement thereto, included in such Exchange Offer
Registration Statement;
(xii) in the case of a Shelf Registration, furnish to
the Representative, without charge, one manually signed copy
of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and
schedules, and, if the recipient Holder so requests, all
exhibits (including those, if any, incorporated by reference);
(xiii) in the case of a Shelf Registration, deliver,
without charge, to the Initial Purchasers and each Holder of
the Notes included within the coverage of a Shelf Registration
Statement which was declared effective by the Commission as
many copies of the Prospectus (including each preliminary
prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such person may
reasonably request, and, in connection therewith, the Company
and each of the Guarantors hereby consents, subject to any
notice by the Company in accordance with this Section 4(c) of
the existence of any fact or event of the
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kind described in Section 4(c)(iii)(E), to the use of the
Prospectus or any amendment or supplement thereto by each of
the selling Holders of the Notes in connection with the
offering and sale of the Notes covered by the Prospectus, or
any amendment or supplement thereto, included in such Shelf
Registration Statement,
(xiv) in the case of a Shelf Registration, (A) enter
into such customary agreements and take all such other actions
in connection therewith in order to expedite or facilitate the
offering or disposition of the Notes included in the Shelf
Registration Statement, including, but not limited to,
furnishing to each Initial Purchaser and each Holder of any
Notes included in the Shelf Registration Statement, in such
substance and scope as they may request and as are customarily
made by issuers to underwriters in primary underwritten
offerings, upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration
Statement, signed by (x) the president or
chief executive officer of the Company and
(y) the chief financial officer or the
principal financial or accounting officer of
the Company, confirming, as of the date
thereof, that the Shelf Registration
Statement and the related Prospectus do not
contain any untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading and as to such other matters as
such parties may reasonably request;
(2) opinions, dated the date of
effectiveness of the Shelf Registration
Statement, of outside counsel for the
Company, covering such matters as are
customarily included in opinions to
underwriters in primary underwritten
offerings and as are reasonably requested by
such parties; and
(3) a customary comfort letter,
dated as of the date of effectiveness of the
Shelf Registration Statement, from the
independent certified public accountants of
the Company, in customary form and covering
matters of the type customarily covered in
comfort letters by underwriters in
connection with primary underwritten
offerings, and addressing, to the extent
relevant, the matters set forth in the
comfort letters delivered pursuant to
Section 6(h) of the Purchase Agreement;
(B) in the case of an underwriting agreement
entered into in connection with a Shelf Registration,
set forth in full indemnification provisions and
procedures substantially in the form of those set
forth in Section 7 hereof with respect to all parties
required to be indemnified pursuant to such Section
7; and
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(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above.
The Company shall be required to make an underwritten
offering only upon the request of Holders of at least 20% of
the aggregate principal amount of the Registered Notes
outstanding at the time such request is delivered to the
Company.
(xv) prior to any public offering of any Notes
pursuant to a Shelf Registration Statement, (A) cooperate with
the selling Holders participating in a Shelf Registration, and
their respective counsel, in connection with the registration
and qualification of the Notes under the securities or "blue
sky" laws of such jurisdictions as the selling Holders may
request, and (B) do any and all other acts or things necessary
or advisable to enable the offering or disposition in such
jurisdictions of the Notes, as the case may be, covered by the
Shelf Registration Statement; except that in no event shall
Company or any Guarantor be obligated in connection therewith
to qualify as a foreign corporation or to execute a general
consent to service of process or to take any other action that
would subject it to service of process in suits in any
jurisdiction other than those arising out of the offering or
sale of Notes in such jurisdiction pursuant to such
Registration Statement;
(xvi) to the extent that any Notes are held in
certificated form and are not represented by global
certificates, cooperate with the holders of such Notes, in
connection with the Registered Exchange Offer, to include an
aggregate principal amount of such Notes in a global
certificate representing the Registered Notes, and, to the
extent that any Notes or Registered Notes are not eligible to
be held in book-entry form, prepare and deliver Notes or
Registered Notes in certificated form as the Holders may
request; provided, in either case, that the Company and the
Guarantors will cooperate with participating Broker Dealers
(in the case of a Registered Exchange Offer) and any Holders
selling Notes pursuant to a Shelf Registration Statement, to
facilitate the timely delivery of such certificates (whether
in book-entry or certificated form as provided above)
representing such Registered Notes or Notes, as the case may
be, to be sold which do not bear any restrictive legends
(other than any customary legend required by the applicable
depository or any legend that would be required by a Note or
Registered Note held by an affiliate of the Company);
(xvii) use their best efforts to cause the Notes or
Registered Notes covered by the Registration Statement to be
registered with or approved by such other governmental
agencies or authorities (except as may be required solely as
consequence of a Holder's business) as may be necessary to
enable the Consummation of the Registered Exchange Offer or,
in the case of a Shelf Registration, as may be applicable to
the Company with respect to filing and having declared
effective the Shelf Registration Statement;
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(xviii) obtain appropriate CUSIP numbers for each
series of Registered Notes not later than the effective date
of the Registration Statement and provide the Trustee with
printed certificates for the Notes or Registered Notes, as the
case may be, in a form eligible for deposit with The
Depository Trust Company, or with Morgan Guaranty Trust
Company of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear") and Cedel Bank, Societe Anonyme
("CEDEL");
(xix) otherwise use their best efforts to comply with
all applicable rules and regulations of the Commission, and
make generally available to its security holders, no later
than 45 days after the end of any fiscal quarter (or 90 days
after the end of any fiscal year), a consolidated earnings
statement (which need not be audited) satisfying the
requirements of Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 under the
Securities Act) for a period of at least twelve months
beginning after the effective date of a Registration
Statement; and
(xx) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required to be filed by this Agreement,
and, in connection therewith: (A) cooperate with the Trustee
and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and (B)
execute, and use all reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so
qualified in a timely manner.
Each Initial Purchaser, each Holder of Notes included in a
Shelf Registration Statement and each Participating Broker-Dealer using the
prospectus included in the Exchange Offer Registration Statement for the resale
of Registered Notes, by its acquisition of a Note or a Registered Note, agrees
that, upon receipt of any notice from the Company of the existence of any fact
or event of the kind described in Section 4(c)(iii)(E), such Initial Purchaser,
Holder or Participating Broker-Dealer will forthwith discontinue disposition of
the Notes or the Registered Notes, as applicable, and suspend the use of the
Prospectus until such Initial Purchaser, Holder or Participating Broker-Dealer
has received copies of a supplemented or amended Prospectus as contemplated by
Section 4(c)(ix), or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each such Initial Purchaser, each
such selling Holder of Notes or each such Participating Broker-Dealer, as the
case may be, will deliver to the Company (at the expense of the Company) all
copies, other than permanent file copies then in such Holder's, Initial
Purchaser's or Participating Broker-Dealer's possession, of the Prospectus
covering such Notes or Registered Notes, as applicable, that was current at the
time of receipt of such notice.
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Section 5. Hold-Back Agreements.
The Company agrees, without the prior written consent of the
Representative, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or any Guarantor or warrants to purchase debt
securities of the Company or any Guarantor substantially similar to the Notes
(other than (i) the Notes, (ii) the Registered Notes, (iii) the Guarantees (as
defined in the Purchase Agreement), (iv) the Registered Guarantees (as defined
in the Purchase Agreement) and (v) commercial paper issued in the ordinary
course of business), from the date of this Agreement through the earlier of (i)
45 calendar days after the Consummation of the Registered Exchange Offer and
(ii) 210 calendar days after the Issue Date.
Section 6. Registration Expenses.
All expenses incident to the Company's performance of or
compliance with its obligations under Sections 2, 3 and 4 of this Agreement will
be borne by the Company regardless of whether a Registration Statement becomes
effective, and, in the case of a Shelf Registration Statement, the Company will
reimburse the Holders covered thereby for the reasonable fees and disbursements
of one counsel designated by the Holders of a majority of the principal amount
of the Notes or Registered Notes included in any such Registration Statement to
act as counsel for the Holders in connection therewith.
Section 7. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company
and each of the Guarantors, jointly and severally, agrees to indemnify
and hold harmless (i) each Initial Purchaser, each Participating
Broker-Dealer and each Holder of Notes to be included in such
Registration Statement, (ii) each person, if any, who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) any such Initial Purchaser, Participating Broker-Dealer
or Holder (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives
and agents of any such Initial Purchaser, Participating Broker-Dealer
or Holder or controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder") from and against any and all losses, liabilities, claims,
damages and expenses whatsoever as incurred (including, but not limited
to, reasonable attorneys fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and,
subject to Section 6(c), any and all amounts paid in settlement of any
claim or litigation), joint or several, to which any such Indemnified
Holder may become subject under the Securities Act, the Exchange Act or
otherwise (collectively, "Losses"), insofar as such Losses (or actions
or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus, or any amendment
or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company and the Guarantors shall not be liable in any such case to the
extent, but only to the extent, that any such Loss (or
18
<PAGE>
action or proceeding in respect thereof) arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or
alleged omission from the Registration Statement or Prospectus
contained therein made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such
Indemnified Holder expressly for use therein. This indemnity obligation
will be in addition to any liability which the Company and the
Guarantors may otherwise have to such Indemnified Holder, including
under this Agreement.
(b) The Company hereby also agrees that in connection with any
underwritten offering of Transfer Restricted Securities pursuant to
Section 3, the Company and each of the Guarantors, jointly and
severally, will also indemnify any underwriters, selling brokers,
dealers and similar securities industry professionals participating in
the distribution, their officers, directors, employees, agents,
advisors and representatives, and each controlling person thereof,
substantially to the same extent as provided in Section 6(a) with
respect to the indemnification of each Initial Purchaser and Holder of
Transfer Restricted Securities (and such Persons will indemnify the
Company and the Guarantors and each controlling person thereof to the
same extent as provided in Section 6(c)).
(c) Each Indemnified Holder will, severally and not jointly,
indemnify and hold harmless the Company and the Guarantors and any
person controlling the Company and the Guarantors (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act),
each Initial Purchaser and the other selling Holders, and their
respective officers, directors, partners, employees, representatives
and agents, and any controlling person thereof, against any Losses to
which the Company, any Guarantor any Initial Purchaser or other selling
Holder, or any such officer, director, partner, employee,
representative, agent or controlling persons thereof, may become
subject under the Securities Act, the Exchange Act or otherwise, from
and against any Losses insofar as such Losses (or actions or
proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus contained therein
or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or
on behalf of such Holder specifically for use therein, and shall
reimburse the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or preparing to defend or defending
against or appearing as third party witness in connection with any such
Loss as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a) or (c) of this Section 7 of notice of the commencement
of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be
sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability
which it may have under this Section 6). In case any such
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<PAGE>
action is brought against any indemnified party, and such indemnified
party notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in the defense of
such action, and to the extent such indemnifying party may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party to assume
the defense thereof with counsel satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party or parties
shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless (a) the employment of such
counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (b)
the indemnifying parties shall not have employed counsel to have charge
of the defense of such action within a reasonable time after notice of
commencement of the action, or (c) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to
one or all of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties (it
being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one
additional local counsel for each relevant jurisdiction). Anything in
this subsection to the contrary notwithstanding, an indemnifying party
shall not be liable for any settlement of any claim or action effected
without its written consent (which consent may not be unreasonably
withheld).
(e) If the foregoing indemnification is unavailable or
insufficient to an indemnified party for any reason in respect to any
Losses or reimbursable expenses referred to therein, then in lieu of
indemnification, each indemnifying party shall contribute to the amount
paid or payable, including expenses, by such indemnified party in such
proportion as is appropriate to reflect the relative benefits received
(or anticipated to be received) by the indemnifying party or parties on
the one hand and the indemnified party on the other from the offering
of the Notes or Registered Notes, as the case may be, or, if such
allocation is not permitted by applicable law, then in such proportion
as is appropriate to reflect not only the relative benefits received
(or anticipated to be received) but also the relative fault of each of
the parties in connection with the statements or omissions or alleged
statements or omissions that resulted in such Losses, as well as any
other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, (i)
whether any losses, claims, damages or liabilities relate to
information supplied by the Company or such Holder of Notes or such
other indemnified person, as the case may be, (ii) the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and (iii) any other
equitable considerations appropriate in the circumstances. The Company,
the Guarantors and each indemnified party agrees that it would not be
just and equitable if the amount of such contribution were determined
by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in the
first sentence of this paragraph (e). Notwithstanding any other
provision of this paragraph (e), the Holders of the Notes shall not be
obligated to make contributions hereunder in any amount in excess of
the amount by which the net
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proceeds received by such Holders from the sale of the Notes exceeds
the amount of damages which such Holders have otherwise been required
to pay in respect of the same or any substantially similar claim, and
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Holders to contribute
pursuant to this Section 7(e) are several in proportion to the
respective principal amount of Notes held by each of the Holders
hereunder and not joint. For purposes of this Section 7(e), each
director, officer, employee and agent of any indemnified party and each
person, if any, who controls such indemnified party (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act)
shall have the same rights to contribution as such indemnified party
and each director and officer of the Company, and each person, if any,
who controls the Company (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) shall have the same
rights to contribution as the Company.
(f) The foregoing provisions are in addition to any rights
that an indemnified party may have at common law or otherwise. The
agreements contained in this Section 7 shall survive the sale of the
Notes or the Registered Notes pursuant to a Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
Section 8. Liquidated Damages.
The Company, the Guarantors and the Initial Purchasers agree
that the Holders of Transfer Restricted Securities will suffer damages if the
Company and the Guarantors fail to fulfill their obligations under this
Agreement and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, in the event that, for any reason
whatsoever, (i) the Company has not filed the Exchange Offer Registration
Statement with the Commission on or prior to the 75th calendar day following the
Issue Date, (ii) such Exchange Offer Registration Statement has not been
declared effective by the Commission on or prior to the 180th calendar day
following the Issue Date, (iii) the Registered Exchange Offer has not been
Consummated on or prior to the 30th calendar day (or longer if required by
applicable law) following the date on which the Exchange Offer Registration
Statement is declared effective by the Commission or (iv) any Registration
Statement required by the terms of this Agreement is filed and declared
effective but shall thereafter cease to be effective (except as specifically
permitted herein) without being succeeded immediately by an additional
Registration Statement filed and declared effective (any such event referred to
in clauses (i) through (iv), a "Registration Default"), then the per annum
interest rate borne by the Notes (and, if applicable, the Registered Notes) will
increase with respect to the first 90-day period immediately following the
occurrence of such Registration Default by 0.25% per annum over the rate stated
on the face of the Notes (and, if applicable, the Registered Notes), as
liquidated damages and not as a penalty, commencing on the date of the
occurrence of a Registration Default, and will increase by an additional 0.25%
per annum, as liquidated damages and not as a penalty, with respect to each
subsequent 90-day period (the aggregate of such interest rate increases being
the "Interest Rate Increase"); provided, however, (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of clause (i) above), (2) upon the effectiveness of
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the Exchange Offer Registration Statement or a Shelf Registration Statement (in
the case of clause (ii) above), (3) upon the Consummation of the Registered
Exchange Offer (in the case of clause (iii) above), or (4) at such time as the
Registration Statement that has ceased to remain effective again becomes
effective, Liquidated Damages shall cease to accrue as a result of the
Registration Default. Notwithstanding the foregoing, at no time shall the
maximum interest rate borne by the Notes exceed 10 1/4%, which rate is two
percentage points greater than the per annum interest rate borne by the Notes on
the Issue Date. At such time as no Registration Default is continuing, the
interest rate borne by the Notes (and, if applicable, the Registered Notes)
shall be reduced by the amount of the Interest Rate Increase and such additional
interest will cease to accrue. In the event of any Interest Rate Increase, the
Company will provide notice to the Trustee of such Interest Rate Increase, and
will cause the Trustee to provide appropriate notice thereof to the Holders of
the Notes (or, if applicable, the Registered Notes).
Section 9. Rule 144.
The Company agrees that to the extent it shall be required to
do so under the Exchange Act, the Company shall timely file the reports required
to be filed by it under the Exchange Act or the Securities Act (including, but
not limited to, the reports under Section 13 and 15(d) of the Exchange Act
referred to in subparagraph (c)(1) of Rule 144 under the Securities Act), and
shall take such further action as any Holder of Transfer Restricted Securities
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Securities without registration under
the Securities Act within the limitations of the exemptions provided by Rule
144, as such Rule may be amended from time to time, or any similar or successor
rule or regulation hereafter adopted by the Commission. Upon the request of any
Holder of Transfer Restricted Securities in connection with the Holder's sale
pursuant to Rule 144, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
Section 10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in
aggregate principal amount of Transfer Restricted Securities; provided
that the provisions of Section 7 of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions thereof may not be given, unless the Company has
obtained the written consent of each Indemnified Holder adversely
affected thereby.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect
to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
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(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
or courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Representative, the Company or any of
the Guarantors, at their respective addresses set forth in the
Purchase Agreement.
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if
personally delivered; three Business Days after being
deposited in the mail, postage prepaid, if mailed; and on the
day delivered, if sent by overnight air courier guaranteeing
next day delivery.
Copies of all such notices. demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in the
Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without limitation and without the need for an
express assignment, subsequent Holders of Transfer Restricted
Securities.
(e) Counterparts. This Agreement 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK FOR
CONTRACTS MADE AND TO BE FULLY PERFORMED IN SUCH STATE AND WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
(h) Agent for Service; Submission to Jurisdiction. (i) Each of
the Company and the Guarantors:
(x) irrevocably submits to the jurisdiction of any
New York State or federal court sitting in New York City and
any appellate court from any thereof in any action or
proceeding arising out of or relating to this Agreement or any
other document delivered hereunder;
23
<PAGE>
(y) irrevocably agrees that all claims in respect of
any such action or proceeding may be heard and determined in
such New York State court or in such federal court; and
(z) irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding and irrevocably
consents, to the fullest extent permitted by law, to service
of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Company
or any of the Guarantors at its address as provided in Section
10(c) of this Agreement, such service to become effective five
days after such mailing;
(ii) Nothing in this Section shall affect the right
of any person to serve legal process in any other manner
permitted by law or affect the right of any person to bring
any action or proceeding against the Company or any Guarantor
or their properties in the courts of other jurisdictions.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and the remaining provisions contained herein shall not, to the
fullest extent permitted by law, be affected or impaired thereby.
(j) Third Party Beneficiaries. Holders of the Notes and
Registered Notes and each Indemnified Holder are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by
such persons.
(k) Entire Agreement. This Agreement, together with the other
transaction documents described in the Purchase Agreement, is intended
by the parties as a final expression of their agreement and is intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises. warranties or
undertakings, other than those set forth or referred to herein, with
respect to the registration rights granted by the Company with respect
to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
IRON MOUNTAIN INCORPORATED
By: /S/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
Iron Mountain Records Management, Inc., Criterion
Atlantic Property, Inc., HIMSCORP of San Diego, Inc.,
Iron Mountain Consulting Services, Inc., Iron
Mountain of Maryland LLC, Iron Mountain Records
Management of Ohio, Inc., Iron Mountain Records
Management of Michigan, Inc., Iron Mountain Records
Management of San Antonio, Inc., Iron Mountain
Records Management of San Antonio-FP, Inc., Iron
Mountain/Safesite, Inc., IM-AEI Acquisition Corp., IM
Billerica, Inc., Arcus Data Security, Inc., Iron
Mountain/National Underground Storage, Inc., Iron
Mountain Safe Deposit Corporation, HIMSCORP of
Philadelphia, Inc., HIMSCORP of Pittsburgh, Inc.,
HIMSCORP of New Orleans, Inc., HIMSCORP of Los
Angeles, Inc., HIMSCORP of Cleveland, Inc., HIMSCORP
of Portland, Inc., HIMSCORP of Detroit, Inc.,
HIMSCORP of Houston, Inc., Recordkeepers, Inc., Arcus
Data Security LLC, DSI Technology Escrow Services,
Inc., Iron Mountain Records Management of Utah, Inc.
and Arcus Staffing Resources, Inc.
By: /S/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
<PAGE>
Accepted as of the date first above written:
BEAR, STEARNS & CO. INC.
By: /S/ Daniel A. Celentano
Name: Daniel A. Celentano
Title: Senior Managing Director
CHASE SECURITIES INC.
By: /S/ David Fass
Name: David Fass
Title: Managing Director
BNY CAPITAL MARKETS, INC.
By: /S/ Bennett Leichman
Name: Bennett Leichman
Title: Vice President
FLEET SECURITIES, INC.
By: /S/ Scott Vallar
Name: Scott Vallar
Title: Managing Director
PRUDENTIAL SECURITIES INCORPORATED
By: /S/ John E. Stuart
Name: John E. Stuart
Title: Managing Director
SCOTIA CAPITAL MARKETS (USA) INC.
By: /S/ Ted Price
Name: Ted Price
Title: CEO
