COINMACH SERVICE CORP.,
as Issuer,
THE BANK OF NEW YORK,
as Trustee and Collateral Agent,
and
The Subsidiary Guarantors Party Hereto from Time to Time,
as Subsidiary Guarantors
INDENTURE
Dated as of November [ ], 2004
[ ]% Senior Secured Notes due 2024
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)............................................................................ 7.10
(a)(2)............................................................................ 7.10
(a)(3)............................................................................ N.A.
(a)(4)............................................................................ N.A.
(a)(5)............................................................................ 7.10
(b)............................................................................... 7.08; 7.10; 12.02
(b)(1)............................................................................ 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
(c)............................................................................... 7.06; 12.02
(d)............................................................................... 7.06
314(a)............................................................................... 4.06; 4.08; 11.02; 12.04
(b)............................................................................... 11.02
(c)(1)............................................................................ 12.04
(c)(2)............................................................................ 1204
(c)(3)............................................................................ N.A.
(d)............................................................................... 12.04; 12.05
(e)............................................................................... N.A.
315(a)............................................................................... 7.01(b)
(b)............................................................................... 7.05; 12.02
(c)............................................................................... 7.01(a)
(d)............................................................................... 7.01(c)
(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)............................................................................... 9.04
317(a)(1)............................................................................ 6.08
(a)(2)............................................................................ 6.09
(b)............................................................................... 2.04
318(a)............................................................................... 12.01
(c)............................................................................... 12.01
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.......................................................................... 1
SECTION 1.02. Incorporation by Reference of TIA.................................................... 34
SECTION 1.03. Rules of Construction................................................................ 34
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating...................................................................... 35
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount............................. 36
SECTION 2.03. Registrar and Paying Agent........................................................... 37
SECTION 2.04. Paying Agent To Hold Assets in Trust................................................. 38
SECTION 2.05. Holder Lists......................................................................... 38
SECTION 2.06. Transfer and Exchange................................................................ 38
SECTION 2.07. Replacement Notes.................................................................... 41
SECTION 2.08. Outstanding Notes.................................................................... 41
SECTION 2.09. Treasury Notes....................................................................... 41
SECTION 2.10. Temporary Notes...................................................................... 42
SECTION 2.11. Cancellation......................................................................... 42
SECTION 2.12. CUSIP Number......................................................................... 42
SECTION 2.13. Deposit of Moneys.................................................................... 43
SECTION 2.14. Physical Notes....................................................................... 43
SECTION 2.15. Special Transfer Provisions.......................................................... 44
SECTION 2.16. Tax Treatment........................................................................ 45
SECTION 2.17. Formation of IDSs.................................................................... 46
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee................................................................... 46
SECTION 3.02. Selection of Notes To Be Redeemed.................................................... 46
SECTION 3.03. Notice of Redemption................................................................. 47
SECTION 3.04. Effect of Notice of Redemption....................................................... 48
SECTION 3.05. Deposit of Redemption Price.......................................................... 48
SECTION 3.06. Notes Redeemed in Part............................................................... 48
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes..................................................................... 49
SECTION 4.02. Maintenance of Office or Agency...................................................... 49
SECTION 4.03. Corporate Existence.................................................................. 49
SECTION 4.04. Payment of Taxes and Other Claims.................................................... 50
SECTION 4.05. Maintenance of Properties and Insurance.............................................. 50
SECTION 4.06. Compliance Certificate; Notice of Default............................................ 50
SECTION 4.07. Compliance with Laws................................................................. 51
SECTION 4.08. Reports to Holders................................................................... 51
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.............................................. 52
SECTION 4.10. Limitation on Restricted Payments.................................................... 52
SECTION 4.11. Limitation on Transactions with Affiliates........................................... 56
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.................................. 57
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries...................................................................... 58
SECTION 4.14. Limitation on Issuances of Certain Guarantees by, and Debt Securities of,
Restricted Subsidiaries........................................................... 60
SECTION 4.15. Limitation on Change of Control...................................................... 60
SECTION 4.16. Limitation on Asset Sales............................................................ 62
SECTION 4.17. Limitation on Preferred Stock of Restricted Subsidiaries............................. 66
SECTION 4.18. Limitation on Liens.................................................................. 66
SECTION 4.19. Conduct of Business.................................................................. 66
SECTION 4.20. Limitation on Equity Contributions to Restricted Subsidiaries; Obligations To
Transfer Certain Proceeds......................................................... 67
SECTION 4.21. Exercise of Redemption Rights and Sales Rights....................................... 68
SECTION 4.22. Impairment of Security Interest...................................................... 68
SECTION 4.23. Limitation on Repurchases and Payments for Consents.................................. 69
SECTION 4.24. Limitation on Asset Transfers to Subsidiaries that Are not Subsidiary Guarantors
or Intercompany Note Obligors..................................................... 70
SECTION 4.25. Subsequent Issuance.................................................................. 70
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets............................................. 71
SECTION 5.02. Successor Corporation Substituted.................................................... 73
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.................................................................... 73
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SECTION 6.02. Acceleration......................................................................... 75
SECTION 6.03. Other Remedies....................................................................... 76
SECTION 6.04. Waiver of Past Defaults.............................................................. 76
SECTION 6.05. Control by Majority.................................................................. 77
SECTION 6.06. Limitation on Suits.................................................................. 77
SECTION 6.07. Rights of Holders To Receive Payment................................................. 78
SECTION 6.08. Collection Suit by Trustee........................................................... 78
SECTION 6.09. Trustee May File Proofs of Claim..................................................... 78
SECTION 6.10. Priorities........................................................................... 79
SECTION 6.11. Undertaking for Costs................................................................ 79
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.................................................................... 80
SECTION 7.02. Rights of Trustee.................................................................... 81
SECTION 7.03. Individual Rights of Trustee......................................................... 82
SECTION 7.04. Trustee's Disclaimer................................................................. 82
SECTION 7.05. Notice of Default.................................................................... 83
SECTION 7.06. Reports by Trustee to Holders........................................................ 83
SECTION 7.07. Compensation and Indemnity........................................................... 83
SECTION 7.08. Replacement of Trustee............................................................... 84
SECTION 7.09. Successor Trustee by Merger, Etc..................................................... 85
SECTION 7.10. Eligibility; Disqualification........................................................ 85
SECTION 7.11. Preferential Collection of Claims Against Company.................................... 86
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance............................................. 86
SECTION 8.02. Satisfaction and Discharge........................................................... 89
SECTION 8.03. Survival of Certain Obligations...................................................... 90
SECTION 8.04. Acknowledgment of Discharge by Trustee............................................... 90
SECTION 8.05. Application of Trust Moneys.......................................................... 90
SECTION 8.06. Repayment to the Company; Unclaimed Money............................................ 91
SECTION 8.07. Reinstatement........................................................................ 91
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders........................................................... 91
SECTION 9.02. With Consent of Holders.............................................................. 92
SECTION 9.03. Compliance with TIA.................................................................. 94
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SECTION 9.04. Revocation and Effect of Consents.................................................... 94
SECTION 9.05. Notation on or Exchange of Notes..................................................... 95
SECTION 9.06. Trustee To Sign Amendments, Etc...................................................... 95
ARTICLE TEN
GUARANTEE
SECTION 10.01. Guarantee............................................................................ 95
SECTION 10.02. Release of a Subsidiary Guarantor.................................................... 96
SECTION 10.03. Limitation of Subsidiary Guarantor's Liability....................................... 97
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms........................ 97
SECTION 10.05. Contribution......................................................................... 98
SECTION 10.06. Waiver of Subrogation................................................................ 98
SECTION 10.07. Evidence of Guarantee................................................................ 99
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.............................................. 99
ARTICLE ELEVEN
COLLATERAL AND COLLATERAL AGREEMENTS
SECTION 11.01. Approval of Collateral Agreements; Representations and
Warranties; No Preference Among Holders........................................... 100
SECTION 11.02. Documentation and Recording; Opinions of Counsel; Further Assurances................. 101
SECTION 11.03. Possession of the Collateral......................................................... 103
SECTION 11.04. Suits To Protect the Collateral...................................................... 103
SECTION 11.05. Release of Liens..................................................................... 103
SECTION 11.06. Specified Releases of Collateral..................................................... 104
SECTION 11.07. Sharing of Collateral................................................................ 105
SECTION 11.08. Sufficiency of Release............................................................... 105
SECTION 11.09. Actions by the Collateral Agent...................................................... 105
SECTION 11.10. Intercreditor Agreement.............................................................. 106
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls......................................................................... 106
SECTION 12.02. Notices.............................................................................. 106
SECTION 12.03. Communications by Holders with Other Holders......................................... 107
SECTION 12.04. Certificate and Opinion as to Conditions Precedent................................... 107
SECTION 12.05. Statements Required in Certificate or Opinion........................................ 108
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar............................................ 108
SECTION 12.07. Legal Holidays....................................................................... 108
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SECTION 12.08. Governing Law........................................................................ 109
SECTION 12.09. No Adverse Interpretation of Other Agreements........................................ 109
SECTION 12.10. No Recourse Against Others........................................................... 109
SECTION 12.11. Successors........................................................................... 109
SECTION 12.12. Duplicate Originals.................................................................. 109
SECTION 12.13. Severability......................................................................... 109
SECTION 12.14. Force Majeure........................................................................ 110
SIGNATURES................................................................................................. S-1
Exhibit A - Form of Unrestricted Note............................................................ A-1
Exhibit B - Form of Restricted Note.............................................................. B-1
Exhibit C - Form of Legend for Global Notes...................................................... C-1
Exhibit D - Form of Certificate To Be Delivered in Connection with Transfers
to Non-QIB Accredited Investors................................................... D-1
Exhibit E - Form of Certificate To Be Delivered in Connection with Transfers Pursuant to
Regulation S...................................................................... E-1
Exhibit F - Form of Global IDS................................................................... F-1
Exhibit G - Form of Notice To Be Delivered in Connection with Recombination/Separation of IDSs... G-1
Exhibit H - Form of Security Agreement........................................................... H-1
Exhibit I - Form of Pledge Agreement............................................................. I-1
NOTE: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
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INDENTURE, dated as of November [ ], 2004, between Coinmach Service
Corp., a Delaware corporation (the "Company"), the Subsidiary Guarantors (as
herein defined), and The Bank of New York, a New York banking corporation, as
Trustee (the "Trustee") and Collateral Agent (the "Collateral Agent").
The Company and the Subsidiary Guarantors have duly authorized the
creation of an issue of $[ ] aggregate principal amount of [ ]% Senior Secured
Notes due 2024 (the "Initial Notes" and, together with any Additional Notes (as
herein defined), the "Notes") and the Subsidiary Guarantees (as herein defined)
and, to provide therefor, the Company and the Subsidiary Guarantors have duly
authorized the execution and delivery of this Indenture. All things necessary to
make the Notes and Subsidiary Guarantees, when each are duly issued and executed
by the Company and the Subsidiary Guarantors, as applicable, and authenticated
and delivered hereunder, the valid and legally binding obligations of each of
the Company and the Subsidiary Guarantors, respectively, and to make this
Indenture a valid and legally binding agreement of each of the Company and the
Subsidiary Guarantors, have been done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"9% Coinmach Corp. Notes" means the notes issued pursuant to the
indenture, dated as of January 25, 2002, by and among Coinmach Corp., as issuer,
the guarantors party thereto, and U.S. Bank, N.A., as trustee.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with or into the Company or
any of its Subsidiaries or assumed in connection with the acquisition of assets
from such Person and in each case not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, and which Indebtedness is without
recourse to the Company or any of its Subsidiaries or to any of their respective
properties or assets other than the Person or the assets to which such
Indebtedness related prior to the time such Person becomes a Restricted
Subsidiary of the Company or the time of such acquisition, merger or
consolidation.
"Additional IDS Notes" means Additional Notes that may be issued in
connection with issuances or sales of IDSs.
"Additional Notes" has the meaning provided in Section 2.02 and
means any Notes issued after the Issue Date from time to time in accordance with
the terms of this Indenture, including, without limitation, the provisions of
Sections 2.02 and 4.12.
"Administrative Agent" means the administrative agent under the
Credit Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.11(a).
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.01 and means,
with respect to the Depository, a Person who has an account with the Depository.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository that apply to such transfer or exchange.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in the
ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person of (a) any Capital Stock of any Restricted
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Subsidiary of the Company; or (b) any other property or assets of the Company or
any Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that asset sales or other dispositions shall not
include (i) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate consideration of less
than $5,000,000; (ii) the sale, lease, conveyance, disposition or other transfer
of all or substantially all of the assets of the Company as permitted under
Article Five; (iii) any Restricted Payment permitted under Section 4.10 or any
Permitted Investment; (iv) sales of franchises or the sale or lease of
equipment, receivables or other assets acquired and held for resale, in all
cases in the ordinary course of business; (v) any sale of Capital Stock or
Indebtedness or other securities of an Unrestricted Subsidiary; (vi) any sale or
transfer of properties or assets by the Company or a Restricted Subsidiary to
the Company or any other Restricted Subsidiary; and (vii) sales or grants of
licenses or similar rights in the ordinary course of business in respect of the
Company's or any Restricted Subsidiary's intellectual property.
"Authenticating Agent" has the meaning provided in Section 2.02.
"Authority" means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capital Expenditures" means, for any period, without duplication,
the sum of:
(1) the aggregate amount of all expenditures of any Person and its
Restricted Subsidiaries for property, plant and equipment (excluding any
property, plant and equipment acquired in connection with acquisitions,
including advance location payments to location owners and excluding
expenditures relating to additions to net assets related to acquisitions
of businesses) that are recorded as fixed or capital assets made during
such period which, in accordance with GAAP, would be classified as capital
expenditures, and
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(2) the aggregate amount of all cash payments made during such
period in respect of any Capitalized Lease Obligation allocable to the
principal component thereof;
provided that the term "Capital Expenditures" shall not include (a) expenditures
and payments made since the Issue Date in aggregate amount not to exceed
$35,000,000; (b) expenditures made in connection with the replacement,
substitution or restoration of assets (i) to the extent financed from insurance
proceeds paid on account of the loss of or damage to the assets being replaced
or restored or (ii) with awards of compensation arising from the taking by
eminent domain or condemnation of the assets being replaced; (c) the purchase
price of equipment that is purchased simultaneously with the trade-in of
existing equipment to the extent that the gross amount of such purchase price is
reduced by the credit granted by the seller of such equipment for the equipment
being traded in at such time; (d) a Capitalized Lease Obligation paid in respect
of equipment that is leased in substitution for, or as replacement in connection
with the trade-in of, existing similar equipment; (e) the purchase of plant,
property or equipment made within one year of the sale of any asset in
replacement of such asset to the extent purchased with the proceeds of such
sale, and a Capitalized Lease Obligation paid in respect of such replaced asset;
and (f) expenditures for property, plant and equipment that are financed to the
extent of such financing, provided that all cash payments made during such
period in respect of such financing and allocable to the principal component
thereof shall be treated as a Capital Expenditure for such period.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and (ii) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Carry-Over Dividend Basket" shall initially equal $30,000,000;
provided that
(a) if during any fiscal quarter the aggregate amount of dividends
paid on the Company's Class A Common Stock pursuant to clause (7) of the
second paragraph of Section 4.10 is less than the Quarterly Base Dividend
Level calculated for such fiscal quarter, an amount equal to the
difference between (1) the Quarterly Base Dividend Level for such fiscal
quarter and (2) the aggregate amount of dividends paid on the Company's
Common Stock during such fiscal quarter shall be added to the Carry-Over
Dividend Basket as of the last day of such fiscal quarter;
-4-
(b) if during any fiscal quarter the Company's Consolidated Interest
Expense exceeds Distributable Cash Flow (the "Excess Amount") for such
fiscal quarter, the Carry-Over Dividend Basket shall be reduced by such
Excess Amount as of the last day of such fiscal quarter; and
(c) at the end of each fiscal quarter the Carry-Over Dividend Basket
shall be reduced by an amount equal to all dividends paid in reliance on
clause (8) of the second paragraph of Section 4.10 during such fiscal
quarter.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally Guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Group ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have beneficial ownership
of all shares that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of a majority of the total outstanding Voting Stock of the Company
as measured by voting power; provided that there shall be no Change of Control
pursuant to this clause (i) if the Permitted Holders continue to have the right
or ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of the Company; or (ii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election to such Board of Directors, or whose nomination for
election by the stock-
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holders of the Company, was approved by a vote of a majority 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) cease
for any reason to constitute a majority of such Board of Directors then in
office; provided, however, there shall be no Change of Control pursuant to this
clause (ii) if during such two-year period the Permitted Holders continue to
own, directly or indirectly, a majority of the Voting Stock of the Company as
measured by voting power; or (iii) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or substantially
all of the assets of the Company to any Person or group, together with any
Affiliates thereof (whether or not otherwise in compliance with the provisions
of this Indenture) that are not controlled, directly or indirectly, by the
Permitted Holders; or (iv) at any time prior to the occurrence of a Merger
Event, the Company shall fail to own, directly or indirectly, at least 99% of
the Capital Stock of Coinmach Corp.
"Change of Control Date" has the meaning provided in Section
4.15(b).
"Change of Control Offer" has the meaning provided in Section
4.15(a).
"Change of Control Payment Date" has the meaning provided in Section
4.15(b)(2).
"Class A Common Stock" means the Class A common stock of the
Company, par value $0.01 per share.
"Class B Common Stock" means the Class B common stock of the
Company, par value $0.01 per share.
"Coinmach Corp." means Coinmach Corporation, a Delaware corporation.
"Collateral" means Collateral as such term is defined in the
Security Agreement and as defined in the Pledge Agreement and in each case any
other property, whether now owned or hereafter acquired, upon which a Lien
securing the Obligations of the Company under the Notes or this Indenture or
Laundry Corp. under its Subsidiary Guarantee is granted or purported to be
granted under any Collateral Agreement. After the occurrence of the Merger
Event, "Collateral" shall include the Post-Merger Event Collateral.
"Collateral Agent" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Collateral Agreements" means, collectively, the Security Agreement,
the Pledge Agreement or any other agreement, including any mortgage, pursuant to
which a Lien is granted or purported to be granted by either the Company on any
of its assets to secure its Obligations in respect of the Notes or Laundry Corp.
on any of its assets to secure its Obliga-
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tions in respect of its Subsidiary Guarantee, in each case as the same may be in
force from time to time.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of, such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Comparable Treasury Issue" means the United States Treasury
security or securities selected by an Independent Investment Banker as having an
actual or interpolated maturity comparable to the remaining term of the Notes to
be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
securities of a comparable maturity to the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (ii) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of:
(i) Consolidated Net Income, and
(ii) to the extent Consolidated Net Income has been reduced thereby
(a) all income taxes of such Person and its Restricted Subsidiaries paid
or accrued in accordance with GAAP for such period (other than income
taxes attributable to extraordinary, unusual or nonrecurring gains or
losses or taxes attributable to sales or dispositions of assets outside
the ordinary course of business), (b) Consolidated Interest Expense, and
(c) Consolidated Non-cash Charges less any non-cash items increasing
Consolidated Net Income for such period,
all as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the
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"Four Quarter Period") ending on or prior to the date of the transaction or
event giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which internal financial statements are available (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
period of such calculation to:
(i) the incurrence or repayment of any Indebtedness of such Person
or any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant
to working capital facilities, occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on
or prior to the Transaction Date, as if such incurrence or repayment, as
the case may be (and the application of the proceeds thereof), occurred on
the first day of the Four Quarter Period, and
(ii) any asset sales or other dispositions or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the
need to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of any such Asset Acquisition) incurring, assuming
or otherwise being liable for Acquired Indebtedness during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date), as if such asset
sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Indebtedness or Acquired Indebtedness
and also including any Consolidated EBITDA associated with such Asset
Acquisition) occurred on the first day of the Four Quarter Period, and
including any pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Exchange Act; provided that the
Consolidated EBITDA of any Person acquired shall be included only to the
extent includible pursuant to the definition of "Consolidated Net Income."
If such Person or any of its Restricted Subsidiaries directly or
indirectly Guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such Guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such Guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio,"
-8-
(1) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Transaction Date (including Indebtedness actually incurred
on the Transaction Date) and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal
to the average rate of interest on such Indebtedness during the Four
Quarter Period ending on or prior to the Transaction Date; and
(2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the
operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Interest Expense
plus (ii) the product of (x) the amount of all dividend payments on any series
of Preferred Stock of such Person (other than dividends paid in Qualified
Capital Stock) paid, accrued or scheduled to be paid or accrued during such
period times (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated federal, state and
local tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the aggregate of the interest expense of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, as determined
in accordance with GAAP, excluding amortization or write-off of deferred
financing costs and debt issuance costs of such Person and its consolidated
Restricted Subsidiaries during such period and any premium or penalty paid in
connection with redeeming or retiring Indebtedness of such Person and its
consolidated Restricted Subsidiaries prior to the stated maturity thereof
pursuant to the agreements governing such Indebtedness and including, without
duplication, (a) all amortization of original issue discount; (b) the interest
component of Capitalized Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by such Person and its Restricted Subsidiaries during such
period; (c) net cash costs under all Interest Swap Obligations (including
amortization of fees), other than any cash costs paid to unwind Interest Rate
Obligations existing on and prior to the Issue Date; (d) all capitalized
interest; and (e) the interest portion of any deferred payment obligations for
such period.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) after-tax gains
and losses from Asset Sales or abandonments or reserves relating thereto, (b)
after-tax items classified as extraordinary or nonrecurring gains, (c) the net
income (but not loss) of any Restricted Subsidiary of the referent Person to the
extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of
-9-
that income is restricted by a contract, operation of law or otherwise, (d) the
net income of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the
referent Person or to a Wholly Owned Restricted Subsidiary of the referent
Person by such Person, (e) any restoration to income of any material contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date, (f) income
or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued), (g) all gains and losses realized on or because of
the purchase or other acquisition by such Person or any of its Restricted
Subsidiaries of any securities of such Person or any of its Restricted
Subsidiaries, (h) amortization charges resulting from purchase accounting
adjustments with respect to transactions prior to the Issue Date, (i) in the
case of a successor to the referent Person by consolidation or merger or as a
transferee of the referent Person's assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets, (j) write
downs resulting from the impairment of intangible assets, (k) the amount of
amortization or write-off of deferred financing costs and debt issuance costs of
such Person and its consolidated Restricted Subsidiaries during such period and
any premium or penalty paid in connection with redeeming or retiring
indebtedness of such Person and its consolidated Restricted Subsidiaries prior
to the stated maturity thereof pursuant to the agreements governing such
Indebtedness, (l) costs paid to unwind Interest Rate Obligations existing on and
prior to the Issue Date, and (m) non-cash charges related to employee
compensation.
"Consolidated Non-Cash Charges" means, with respect to any Person
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Restricted Subsidiaries reducing Consolidated
Net Income of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
charges constituting an extraordinary item or loss or any such charge which
requires an accrual of or a reserve for cash charges for any future period).
"Covenant Defeasance" has the meaning provided in Section 8.01(c).
"Credit Agreement" means the Credit Agreement dated as of January
25, 2002, among Laundry Corp., Coinmach Corp., the lenders party thereto from
time to time in their capacities as lenders thereunder and Deutsche Bank Trust
Company Americas (f/k/a Bankers Trust Company), as administrative agent and
collateral agent, together with the related documents thereto (including,
without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid or extended from time to
time (whether in whole or in part and whether with the original agents and
lenders or other agents and lenders or otherwise including, without limitation,
under any high yield financing), including, without limitation, to increase the
amount of available borrowings thereunder (provided that any In-
-10-
debtedness incurred pursuant to such increase is permitted under Section 4.12)
or to add Restricted Subsidiaries of the Company as additional borrowers or
Restricted Subsidiaries of the Company or other Persons as additional guarantors
thereunder.
"Credit Agreement Collateral Agent" means the collateral agent under
the Credit Agreement.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Deposit Agent" means the party named as such in the Deposit
Agreement until a successor replaces it in accordance with the provisions of the
Deposit Agreement, and thereafter means the successor serving thereunder.
"Deposit Agreement" means the Deposit Agreement, dated as of the
Issue Date, by and among the Company, Laundry Corp., the Trustee and [ ], as a
Deposit Agent, substantially in the form attached to the Intercreditor Agreement
as Exhibit A, as amended from time to time as permitted by this Indenture and by
the terms of the Intercreditor Agreement.
"Depository" or "DTC" means The Depository Trust Company, its
nominees and successors.
"Disproportionality Test" means, as of any date, that either (i) at
least 40% of the voting power or value of the then outstanding Common Stock of
the Company is held separate and apart from any other debt security of the
Company or its Subsidiaries and not as part of the IDSs or any other units that
include a debt instrument of the Company or its Subsidiaries or (ii) at least
40% in aggregate principal amount of the then outstanding Notes (including
Additional Notes, if any) is held separate and apart from any other equity
security of the Company or its Subsidiaries and not as part of the IDSs or any
other units that include an equity instrument of the Company or its
Subsidiaries.
"Disqualified Capital Stock" means that portion of any Capital Stock
(other than the Class B Common Stock) which, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event (other than an
event which would constitute a Change of
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Control), matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (except, in each case, upon the occurrence of a Change of Control) on or
prior to the final maturity date of the Notes for cash.
"Distributable Cash Flow" means, as of any date of determination,
Consolidated EBITDA of the Company for the most recent fiscal quarter prior to
such date of determination for which internal financial statements are available
(less Consolidated Net Income used to make a Restricted Payment in reliance on
and calculated in accordance with clause (iii)(w) of the first paragraph of
Section 4.10) minus
(1) the sum, without duplication, of:
(a) cash tax payments in respect of federal and state income
taxes,
(b) Capital Expenditures,
(c) cash principal payments on any Indebtedness of the Company or
its Restricted Subsidiaries (other than (i) payments on intercompany
obligations, (ii) payments made from amounts borrowed pursuant to
Indebtedness or amounts received from the issuance or sale of Qualified
Capital Stock, in each case that has refinanced, renewed or replaced such
repaid Indebtedness in such period, (iii) payments made on Indebtedness
under working capital facilities to the extent such amounts remain
available to be reborrowed and (iv) payments made to redeem 9% Coinmach
Corp. Notes or repay borrowings outstanding under the Credit Agreement, in
each case pursuant to the Transactions),
(d) net changes in Working Capital and
(e) extraordinary cash charges,
plus
(2) the sum of:
(a) cash tax refunds in respect of federal and state income taxes
and
(b) extraordinary cash gains,
in each case of the Company on a consolidated basis for or in such fiscal
quarter.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws of the United
States, any state thereof or the District of Columbia.
-12-
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Notes" means Additional Notes, if any, issued under
Section 2.02 pursuant to a Registration Rights Agreement.
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of Additional Notes, if any, to exchange all such Additional
Notes held by such Holder for the Exchange Notes in an aggregate principal
amount equal to the aggregate principal amount of such Additional Notes held by
such Holder, all in accordance with the terms and conditions of a Registration
Rights Agreement.
"Fair Market Value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair Market
Value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"First Four Dividend Payments" means the dividend payments
contemplated to be made by the Company on the Class A Common Stock on March 1,
2005, June 1, 2005, September 1, 2005 and December 1, 2005 for the partial
quarterly dividend payment period ending December 31, 2004 and the full
quarterly dividend payment periods ending March 31, 2005, June 30, 2005 and
September 30, 2005, provided that the dollar amount of such dividend payments in
the aggregate shall not be greater than $[ ].
"GAAP" means accounting principles generally accepted in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Global IDS" has the meaning provided in Section 2.17.
"Global Note" has the meaning provided in Section 2.01.
"Guarantee" means, as applied to any obligation of another Person,
(i) 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, (ii)
-13-
any direct or indirect obligation, contingent or otherwise, of a Person
guaranteeing or having the effect of guaranteeing the obligations of any other
Person in any manner and (iii) an agreement of a Person, 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 of another Person (and
"Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing).
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"IDS" means a security issued or to be issued by the Company,
representing (1) one share of Class A Common Stock of the Company and (2) $6.75
aggregate principal amount of Notes, Non-OID Additional Notes or OID Exchange
Units, as the case may be [(or a combination thereof)], as may be adjusted from
time to time in accordance with the provisions of this Indenture.
"IDS Transfer Agent" has the meaning provided in Section 2.17.
"incur" has the meaning provided in Section 4.12(a).
"Indebtedness" means with respect to any Person, without
duplication,
(i) all Obligations of such Person for borrowed money,
(ii) all Obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person,
(iv) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and
all Obligations under any title retention agreement (but excluding trade
accounts payable and other accrued liabilities arising in the ordinary
course of business that are not overdue by 90 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and any deferred purchase price represented by
earn-outs consistent with the Company's past practice),
(v) all Obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction,
(vi) Guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below,
-14-
(vii) all Obligations of any other Person of the type referred to in
clauses (i) through (vi) which are secured by any Lien on any property or
asset of such Person, the amount of such Obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount of
the Obligation so secured,
(viii) all Obligations under currency agreements and interest swap
agreements of such Person and
(ix) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock
being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital
Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means an investment banking firm (i)
which does not, and whose directors, officers and employees or Affiliates do
not, have a direct or indirect financial interest in the Company and (ii) which,
in the judgment of the Board of Directors of the Company, is otherwise
independent and qualified to perform the task for which it is to be engaged.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee as directed by the Company.
"Initial Notes" has the meaning provided in the Recitals to this
Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
-15-
"Intercompany Note" means that certain intercompany note in an
initial aggregate principal amount of $[86.3 million]1 to be issued by Coinmach
Corp. to the Company on the Issue Date, together with any additional
intercompany note or notes evidencing Indebtedness owed by Coinmach Corp. to the
Company, in each case providing for termination upon the occurrence of the
Merger Event.
"Intercompany Note Guaranty" has the meaning specified in the
Intercompany Note.
"Intercompany Note Guarantor" has the meaning specified in the
Intercompany Note.
"Intercompany Note Obligor" has the meaning provided in Section
4.12(b).
"Intercreditor Agreement" means the Intercreditor Agreement among
the Credit Agreement Collateral Agent, the Collateral Agent and Laundry Corp.,
dated as of the Issue Date, as the same may be amended, supplemented or modified
from time to time.
"Interest Coverage Test" means that, as of any date of
determination,
(1) the Company's Consolidated Interest Expense was less than 90%
of its Distributable Cash Flow for the most recent fiscal quarter for
which internal financial statements are available; and
(2) the Company reasonably and in good faith determines that both
(i) it and its Restricted Subsidiaries have cash or borrowings available
under committed financing arrangements that do not become due and payable
within the next four fiscal quarters in an amount greater than the
Company's reasonably anticipated Consolidated Interest Expense for the
next two succeeding fiscal quarters on the Company's and its Restricted
Subsidiaries' then outstanding Indebtedness and any Indebtedness that they
intend to incur in the next two succeeding fiscal quarters; and (ii)
amounts actually available to the Company from its Restricted Subsidiaries
at such date, taken together with amounts expected to be received by it
under the Intercompany Note over the next two succeeding fiscal quarters,
will be sufficient to make cash interest payments on all Indebtedness of
the Company then outstanding and any Indebtedness it intends to incur in
the next two succeeding fiscal quarters.
----------------
a Assuming that the underwriters' overallotment option is not exercised. May
increase up to $97.4 million if the overallotment option is exercised.
-16-
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
Guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit by
the Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiaries, as the case may be. For the purposes of Section 4.10, (i)
"Investment" shall include and be valued at 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 shall exclude the fair market value
of the net assets of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; provided that no such
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, 100% of the
outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Issue Date" means the date of original issuance of the Initial
Notes.
-17-
"Laundry Corp." means Coinmach Laundry Corporation, a Delaware
corporation.
"Legal Defeasance" has the meaning provided in Section 8.01(b).
"Legal Holiday" has the meaning provided in Section 12.07.
"Legal Requirements" means, at any time, any and all judicial and
administrative rulings and decisions, and any and all Federal, state and local
laws, ordinances, rules, regulations, permits and certificates, of any
Authority, in each case applicable, at such time to the Company, the Subsidiary
Guarantors or the Collateral (or the ownership or use thereof).
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest). After the occurrence of a Merger
Event, "Lien" shall include Post Merger Event Liens.
"Lien Attachment Date" means (i) the Issue Date and (ii) any date
during any Unsecured Period that arose following the Issue Date pursuant to
Section 11.06(a)(iv) on which the Credit Agreement is subsequently secured by a
Lien on assets that would constitute Collateral as provided in Section 11.06(a).
"Maturity Date" means [ ], 2024.
"Merger Event" means either (1) the consolidation or merger of the
Company and Laundry Corp. with and into Coinmach Corp., or (2) the consolidation
or merger of Laundry Corp. and Coinmach Corp. with and into the Company.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that is secured by the property or assets that are the subject of
such Asset Sale and is required to be repaid in connection with such Asset Sale
and (d) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-
-18-
employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale.
"Net Proceeds Offer" has the meaning provided in Section 4.16(a).
"Net Proceeds Offer Amount" has the meaning provided in Section
4.16(a).
"Net Proceeds Offer Payment Date" has the meaning provided in
Section 4.16(a).
"Net Proceeds Offer Trigger Date" has the meaning provided in
Section 4.16(a).
"Non-OID Additional Notes" has the meaning provided in Section
4.25(a).
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Note Lien" means any Lien on the Collateral in favor of the Trustee
and the Holders securing the Obligations of the Company and Laundry Corp. under
or in respect of this Indenture, the Notes, the Subsidiary Guarantee of Laundry
Corp. and the Collateral Agreements.
"Notes" has the meaning provided in the preamble to this Indenture
and means the Initial Notes and the Additional Notes, if any, treated as a
single class of securities, as amended or supplemented from time to time in
accordance with the terms hereof, that are issued pursuant to this Indenture.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller or the Secretary of such
Person, or any other officer designated by the Board of Directors serving in a
similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 12.04 and 12.05, as they relate to the making of an
Officers' Certificate.
"Offshore Physical Notes" has the meaning provided in Section 2.01.
-19-
"OID" means "original issue discount" as defined in Section 1273(a)
of Internal Revenue Code of 1986, as amended.
"OID Exchange" has the meaning provided in Section 4.25(a).
"OID Exchange Units" has the meaning provided in Section 4.25(a).
"Opinion of Counsel" means a written opinion from legal counsel, who
may be counsel for the Company, complying with the requirements of Sections
12.04 and 12.05 as they relate to the giving of an Opinion of Counsel.
"Parent" means Coinmach Holdings, LLC, a Delaware limited liability
company.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Holders" means (i) GTCR-CLC, LLC or any Affiliate thereof
and (ii) members of management and directors of the Company as of the Issue
Date.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under (a) the Notes issued on the Issue Date and
the Notes issued in connection with the exercise of the over-allotment
option by underwriters of the IDSs issued on the Issue Date in an
aggregate principal amount not to exceed $162,312,500 and (b) the
Subsidiary Guarantees in respect thereof;
(ii) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate principal amount at any time outstanding not to exceed the
greater of (a) $350,000,000, less the amount of repayments actually made
by the Company or any Restricted Subsidiary since the Issue Date with Net
Cash Proceeds of an Asset Sale in respect of Indebtedness under the Credit
Agreement and (b) the product of 3.0 multiplied by the Consolidated EBITDA
of the Company during the four full fiscal quarters ending on the last day
of the most recent fiscal quarter for which internal financial statements
are available;
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date;
(iv) Interest Swap Obligations of the Company or any Restricted
Subsidiary of the Company covering Indebtedness of the Company or any of
its Restricted Subsidiaries; provided, however, that such Interest Swap
Obligations are entered into for the purpose of fixing or hedging interest
rates with respect to any fixed or variable rate Indebtedness that is
permitted by this Indenture to be outstanding to the extent that the
-20-
notional amount of any such Interest Swap Obligation does not exceed the
principal amount of Indebtedness to which such Interest Swap Obligation
relates;
(v) Indebtedness under Currency Agreements; provided that in the
case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted Subsidiary of the
Company to the Company or to a Wholly Owned Restricted Subsidiary of the
Company for so long as such Indebtedness is held by the Company or a
Wholly Owned Restricted Subsidiary of the Company, in each case subject to
no Lien held by a Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company (except for the Liens in favor of the
Collateral Agent for the benefit of the Holders of Notes, the Trustee and
the Collateral Agent and Permitted Liens of the type described in clause
(xvi) of the definition of "Permitted Liens"); provided that if as of any
date any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company owns or holds any such Indebtedness or holds any
such Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by the
issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Wholly Owned Restricted Subsidiary of the Company subject to no Lien
(except for the Liens in favor of the Collateral Agent for the benefit of
the Holders of Notes, the Trustee and the Collateral Agent and Permitted
Liens of the type described in clause (xvi) of the definition of
"Permitted Liens"); provided that (a) any such Indebtedness is unsecured
and subordinated, pursuant to a written agreement, to the Company's
obligations under this Indenture and the Notes and (b) if as of any date
any Person other than a Wholly Owned Restricted Subsidiary of the Company
owns or holds any such Indebtedness or any Person holds any such Lien in
respect of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the Company;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within two Business Days of
incurrence;
(ix) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of bankers' acceptances or represented by letters
of credit for the account of
-21-
the Company or such Restricted Subsidiary, as the case may be, in
connection with self-insurance or similar requirements, security for
workers' compensation claims, completion guarantees, appeal bonds, bid and
surety bonds, insurance obligations or bonds, and performance bonds and
similar bonds or obligations, all incurred in the ordinary course of
business (including, without limitation, to maintain any license or
permits);
(x) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of business (including Refinancings
thereof that do not result in an increase in the aggregate principal
amount of Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium required to be paid under the
terms of the instrument governing such Indebtedness and plus the amount of
reasonable expenses incurred by the Company in connection with such
Refinancing)) not to exceed $35,000,000 at any one time outstanding;
(xi) Refinancing Indebtedness;
(xii) Guarantees by the Company or a Restricted Subsidiary of
Indebtedness incurred by the Company or a Restricted Subsidiary so long as
the incurrence of such Indebtedness by the Company or any such Restricted
Subsidiary is otherwise permitted by the terms of this Indenture;
(xiii) Indebtedness arising from agreements of the Company or a
Domestic Restricted Subsidiary providing for indemnification, adjustment
of purchase price or similar obligations, in each case, incurred in
connection with the disposition of any business, assets or Subsidiary,
other than Guarantees of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or Subsidiary for the purpose of
financing such acquisition; provided that the maximum aggregate liability
in respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the Company and such Domestic Restricted
Subsidiary in connection with such disposition;
(xiv) Indebtedness represented by Additional IDS Notes; provided
that
(a) as of the most recent fiscal quarter ending immediately
prior to the date of issuance of such Additional IDS Notes for which
internal financial statements are available and pro forma for the
issuance of the IDSs of which such Additional IDS Notes form a part
and the application of the proceeds from the sale of such IDSs, the
Company would have been permitted under clause (7) of the second
paragraph of Section 4.10 to pay a per share dividend with respect
to all Class A Common Stock in an amount not less than the average
per share dividend declared by the Company's Board of Directors with
re-
-22-
spect to the Class A Common Stock for such fiscal quarter and the
fiscal quarter immediately preceding such fiscal quarter, as
adjusted for any separation, combination, reclassification or other
like event with respect to the Class A Common Stock, and
(b) as of any date of determination, the Company's
Consolidated Interest Expense, pro forma for the issuance of the
IDSs as if they had been issued at the beginning of the applicable
four-quarter period, would have been less than 90% of its
Distributable Cash Flow for the most recently ended four full fiscal
quarter period for which internal financial statements are
available;
(xv) notwithstanding anything to the contrary contained in clauses
(xii) and (xiv) hereof, Indebtedness arising from the Subsidiary
Guarantees by the Subsidiary Guarantors; and
(xvi) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $35,000,000 at
any one time outstanding (which amount may, but need not, be incurred in
whole or in part under the Credit Agreement).
For purposes of determining compliance under Section 4.12, in the event that an
item of Indebtedness meets the criteria of more than one of the categories of
Permitted Indebtedness described in clauses (i) through (xvi) above or is
entitled to be incurred pursuant to the Consolidated Fixed Charge Coverage Ratio
provisions of such Section, the Company shall, in its sole discretion, classify
(or later reclassify) such item of Indebtedness in any manner that complies with
such Section. Accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Capital Stock in the form of additional shares of the same class of Disqualified
Capital Stock will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Capital Stock for purposes of Section 4.12.
"Permitted Investments" means (i) Investments by the Company or any
Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Wholly Owned Restricted Subsidiary of the
Company or that will merge or consolidate into the Company or a Wholly Owned
Restricted Subsidiary of the Company; (ii) Investments in the Company by any
Restricted Subsidiary of the Company; provided that any Indebtedness evidencing
such Investment is unsecured and subordinated, pursuant to a written agreement,
to the Company's obligations under the Notes and this Indenture; (iii)
Investments in cash and Cash Equivalents; (iv) loans and advances to employees
and non-executive officers of the Company and its Restricted Subsidiaries in the
ordinary course of business for bona fide business purposes not in excess of the
amount outstanding on the Issue Date plus $1,000,000 at any one time
outstanding; (v) Currency Agreements and Inter-
-23-
est Swap Obligations entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture; (vi) additional Investments not to exceed $30,000,000 at any one time
outstanding; (vii) Investments in the Notes and the 9% Coinmach Corp. Notes;
(viii) Investments in securities of trade creditors or customers received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers; (ix) Investments
made by the Company or its Restricted Subsidiaries as a result of an Asset Sale
made in compliance with Section 4.16; (x) any Investment existing on the Issue
Date; (xi) any Investment made in exchange for the issuance of (a) Capital
Stock, other than Disqualified Stock, of the Company or (b) IDSs; and (xii)
Investments in securities received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of any debtors of the
Company or its Restricted Subsidiaries.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or any of its Restricted
Subsidiaries shall have set aside on its books such reserves as may be
required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have
been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, including any Lien securing letters of
credit issued in the ordinary course of business consistent with past
practice in connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with
-24-
the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or
asset which is not leased property subject to such Capitalized Lease
Obligation;
(vii) Liens securing Capitalized Lease Obligations and Purchase
Money Indebtedness permitted pursuant to clause (x) of the definition of
"Permitted Indebtedness"; provided, however, that in the case of Purchase
Money Indebtedness (A) the Indebtedness shall not exceed the cost of such
property or assets and shall not be secured by any property or assets of
the Company or any Restricted Subsidiary of the Company other than the
property and assets so acquired or constructed and (B) the Lien securing
such Indebtedness shall be created within 180 days of such acquisition or
construction or, in the case of a refinancing of any Purchase Money
Indebtedness, within 180 days of such refinancing;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens securing Indebtedness under Currency Agreements;
(xiii) Liens securing Acquired Indebtedness incurred in accordance
with Section 4.12; provided that (A) such Liens secured such Acquired
Indebtedness at the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company and
were not granted in connection with, or in anticipation of, the incurrence
of such Acquired Indebtedness by the Company or a Restricted Subsidiary of
the Company and (B) such Liens do not extend to or cover any property or
assets of the Company or of any of its Restricted Subsidiaries other than
the property or assets that secured the Acquired Indebtedness prior to the
time
-25-
such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company;
(xiv) Liens existing as of the Issue Date to the extent and in the
manner such Liens are in effect on the Issue Date;
(xv) Liens securing the Notes and the Subsidiary Guarantee of
Laundry Corp.;
(xvi) Liens securing borrowings under the Credit Agreement (whether
incurred pursuant to clause (2) of the definition of "Permitted
Indebtedness" or any other clause thereof or pursuant to Section 4.12)
including any additional Obligations thereunder (which Liens may extend to
all property now owned or hereafter acquired by the Company or any of its
Subsidiaries);
(xvii) Liens of the Company or a Wholly Owned Restricted Subsidiary
of the Company on assets of any Restricted Subsidiary of the Company;
(xviii) Liens securing Indebtedness that is expressly subordinate or
junior in right of payment to the Notes, provided that the Notes are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens;
(xix) Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted
under this definition and which has been incurred in accordance with
Section 4.12; provided, however, that such Liens (a) are no less favorable
to the Holders of Notes and are not more favorable to the lienholders with
respect to such Liens than the Liens in respect of the Indebtedness being
Refinanced; and (b) do not extend to or cover any property or assets of
the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced; and
(xx) Liens securing assets of the Company in addition to that
described in clauses (i) through (xix) above, so long as the aggregate
principal amount of Indebtedness secured by Liens incurred pursuant to
this clause (xx) would not exceed $25,000,000 at any one time outstanding.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental agency or
political subdivision thereof.
"Physical Note" means a certificated Note that does not bear the
legends as set forth on Exhibit B hereto.
-26-
"Pledge Agreement" means the pledge agreement, dated as of the Issue
Date, made by the Company and Laundry Corp. in favor of the Collateral Agent for
the benefit of the Holders of Notes, substantially in the form of Exhibit I
hereto, as amended, supplemented or modified from time to time in accordance
with its terms.
"Post-Merger Event Collateral" means, after the occurrence of the
Merger Event, all of the Capital Stock of the direct Domestic Subsidiaries and
65% of each class of Capital Stock of the direct foreign Subsidiaries, in each
case of the surviving entity of the Merger Event.
"Post-Merger Event Lien" means a Lien on the Post-Merger Event
Collateral in favor of the Collateral Agent securing the Obligations of the
Company under or in respect of this Indenture, the Notes and the Collateral
Agreements.
"Preferred Stock" of any Person means any Capital Stock of such
Person (other than, with respect to the Company, the Class A Common Stock and
the Class B Common Stock) that has preferential rights to any other Capital
Stock of such Person with respect to dividends or redemptions or upon
liquidation.
"Primary Registered Offering" means an offering by the Company of
its securities pursuant to a registration statement filed with Securities and
Exchange Commission, but excluding an offering by the Company of Exchange Notes
in exchange for Notes previously issued under this Indenture that are
"restricted securities" as defined in Rule 144 under the Securities Act.
"principal" of any Indebtedness (including the Notes) means the
principal amount of such Indebtedness.
"Private Placement Legend" means the legend initially set forth on
Restricted Securities in the form set forth in Exhibit B hereto.
"Proceeds Purchase Date" has the meaning provided in Section
4.16(b).
"Prospectus" means the Prospectus dated November [ ], 2004 relating
to the offering of the Initial Notes.
"Purchase Money Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of property or equipment.
-27-
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock, including any such Capital Stock issued as part of
an IDS or other unit (but, in the case of issuance as part of a unit, only to
the extent of such Capital Stock).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Quarterly Base Dividend Level" means, as of any date of
determination, (1) 100% of Distributable Cash Flow minus (2) Consolidated
Interest Expense for the most recent fiscal quarter prior to such date of
determination for which internal financial statements are available.
"Record Date" means any of the Record Dates specified in the Notes,
whether or not a Legal Holiday.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Redemption Right" means the right of the Company under its
certificate of incorporation to redeem shares of Class B Common Stock under the
circumstances and subject to the provisions of Section 4.21 and the terms and
conditions set forth in the certificate of incorporation of the Company as in
effect on the Issue Date and any amendment thereto so long as any such amendment
in respect of such right is not adverse to the Holders.
"Reference Date" has the meaning provided in Section 4.10.
"Reference Treasury Dealer" means one of five independent investment
banking firms of national reputation, or their respective affiliates, selected
by the Company, which are primary U.S. Government securities dealers in The City
of New York.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
time, on the third Business Day preceding such Redemption Date.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or In-
-28-
debtedness in exchange or replacement for, such security or Indebtedness in
whole or in part. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or
any Restricted Subsidiary of the Company of Indebtedness incurred in accordance
with Section 4.12 (other than pursuant to clause (ii), (iv), (v), (vi), (vii),
(viii), (ix), (x), (xii), (xiii), (xiv) or (xvi) of the definition of "Permitted
Indebtedness"), in each case that does not (1) result in an increase in the
aggregate principal amount of Indebtedness of such Person as of the date of such
proposed Refinancing (plus the amount of any premium required to be paid under
the terms of the instrument governing such Indebtedness plus the amount of
reasonable expenses incurred by the Company in connection with such Refinancing)
or (2) create Indebtedness with (A) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Indebtedness being
Refinanced or (B) a final maturity earlier than the final maturity of the
Indebtedness being Refinanced; provided that (x) if such Indebtedness being
Refinanced is Indebtedness of the Company, then such Refinancing Indebtedness
shall be Indebtedness solely of the Company and (y) if such Indebtedness being
Refinanced is subordinate or junior to the Notes, then such Refinancing
Indebtedness shall be subordinate to the Notes at least to the same extent and
in the same manner as the Indebtedness being Refinanced; provided further that,
with respect to clause (xiv) of the definition of "Permitted Indebtedness," such
Additional Notes have been separated from the Company's Common Stock and no
longer form part of an IDS.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means a registration rights
agreement relating to Notes issued hereunder, between the Company, Parent and
the Subsidiary Guarantors, as the same may be amended or modified from time to
time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Replacement Assets" has the meaning provided in Section 4.16(a).
"Restricted Payment" has the meaning provided in Section 4.10.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
-29-
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Company or a Restricted Subsidiary of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person from whom funds have
been or are to be advanced by such Person on the security of such Property.
"Sales Right" means the right of a holder of Class B Common Stock
under the certificate of incorporation of the Company to cause the Company to
redeem such shares of Class B Common Stock, under the circumstances and subject
to the provisions of Section 4.21 and the terms and conditions set forth in the
certificate of incorporation of the Company as in effect on the Issue Date and
any amendment thereto so long as any such amendment in respect of such right is
not adverse to the Holders.
"Satisfaction and Discharge" has the meaning provided in Section
8.02.
"SEC" means the Securities and Exchange Commission.
"Secured Period" means (i) the period commencing on the Issue Date,
if any, and ending on such date, if any, as the Note Liens on all of the
Collateral are, or are required to be, released pursuant to Section 11.06(a),
and (ii) any subsequent period commencing on any subsequent Lien Attachment
Date, if any, and ending on such date, if any, as the Note Liens on all of the
Collateral are, or are required to be, released pursuant to Section 11.06(a).
Notwithstanding anything to the contrary in the immediately preceding sentence,
no Secured Period shall arise following the release of any Note Liens pursuant
to Section 11.06(b).
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Security Agreement" means the Security Agreement, dated as of the
Issue Date, made by the Company and Laundry Corp. in favor of the Collateral
Agent for the benefit of the Holders of Notes, substantially in the form of
Exhibit H hereto, as amended, supplemented or modified from time to time in
accordance with its terms.
"Separation Event of Default" means an Event of Default pursuant to
clause (1), (2), (4) or (5) of Section 6.01; provided that
(i) with respect to such clause (4), only an Event of Default
pursuant to a default in the observance or performance of any of the
covenants described under Sections 4.10 and 4.12 shall constitute a
Separation Event of Default,
-30-
(ii) with respect to such clause (5), only an Event of Default
pursuant to a default with respect to the Intercompany Note shall
constitute a Separation Event of Default, and
(iii) solely for purposes of this definition, any event pursuant to
such clause (4) or (5) shall constitute an Event of Default on the earlier
to occur of (A) 31 days after the giving of written notice as described
therein (or, in the case of such clause (5), 21 days after the giving of
such notice) and (B) the passage of 120 days from the occurrence of the
related Default.
"Significant Subsidiary," with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act.
"Subsidiary," with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Subsidiary Guarantee" has the meaning provided in Section 10.01.
"Subsidiary Guarantor" means Laundry Corp. and each of the Company's
Restricted Subsidiaries that in the future executes a supplemental indenture in
which such Restricted Subsidiary agrees to be bound by the terms of this
Indenture as a Subsidiary Guarantor; provided that any Person constituting a
Subsidiary Guarantor hereunder shall cease to constitute a Subsidiary Guarantor
when its Subsidiary Guarantee is released in accordance with the terms of this
Indenture.
"Surviving Entity" has the meaning provided in Section 5.01(a).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in Section 9.03.
"Total Remaining Payments," with respect to any Indebtedness means,
as of any date, the sum of the aggregate amount of payments due on such
Indebtedness from such date through the stated maturity of such Indebtedness.
"Total Remaining Payments Tests" means, as of any date, that
(1) the ratio of (A) the difference between (i) the Total
Remaining Payments on all senior unsecured Indebtedness represented by the
Intercompany Note that
-31-
is pledged as Collateral for the Notes and (ii) the Total Remaining
Payments on any obligations of Coinmach Corp. in respect of Indebtedness
secured by Permitted Liens (other than Permitted Liens securing
Indebtedness of the Company), to (B) the Total Remaining Payments on the
outstanding Notes (including outstanding Additional Notes, if any), and
(2) the ratio of (A) the principal amount of net Indebtedness
determined in clause (1)(A) of this definition to (B) the principal amount
of the outstanding Notes (including outstanding Additional Notes, if any),
in each case are 1.0 to 1.0 or greater.
"Transactions" means the transactions described under the section of
the Prospectus entitled "The Transactions."
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the quarterly equivalent yield to maturity or interpolated,
on a day count basis, of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue, expressed as a percentage of its principal amount,
equal to the Comparable Treasury Price for such Redemption Date.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer this Indenture or, in the case of a successor trustee, an
officer assigned to the department, division or group performing the corporation
trust work of such successor and assigned to administer this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"2004 LTIP" means the 2004 Long Term Incentive Plan of Coinmach
Corp. as the same may be amended, modified or supplemented from time to time in
accordance with its terms.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided that (x) the
Company certifies to the Trustee that such designation complies with Section
4.10 and (y) each Subsidiary to be so designated
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and each of its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, Guarantee or otherwise become directly
or indirectly liable with respect to any Indebtedness pursuant to which the
lender has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary only if (x) immediately after giving effect to
such designation, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.12
and (y) immediately before and immediately after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced to
the Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"Unsecured Period" means any period after the Issue Date that is not
a Secured Period.
"U.S. Government Obligations" means non-callable direct obligations
of, and non-callable obligations guaranteed by, the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Physical Notes" has the meaning provided in Section 2.01.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Wholly
Owned Restricted Subsidiary of such Person which at the time of determination is
a Restricted Subsidiary of such Person.
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"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than in the case of
a foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.
"Working Capital" means, at any date of determination, the
consolidated assets of the Company and its Restricted Subsidiaries that are
classified as current assets in accordance with GAAP, less the consolidated
liabilities of the Company and its Restricted Subsidiaries which are classified
as current liabilities in accordance with GAAP.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. 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;
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(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and Additional Notes issued pursuant to a Primary
Registered Offering and the Trustee's certificate of authentication related
thereto shall be substantially in the form of Exhibit A hereto. Additional Notes
that are Restricted Securities and the Trustee's certificate of authentication
related thereto shall be substantially in the form of Exhibit B hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or depository rule or usage. The Company and the Trustee shall
approve the form of the Notes and any notation, legend or endorsement on them.
Each Note shall be dated the date of its authentication. The Notes shall be in
denominations of $[6.75] and integral multiples thereof.
The terms and provisions contained in the Notes, the forms of which
are annexed hereto as Exhibits A and B, shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company, the Subsidiary Guarantors, the Collateral Agent and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Notes offered and sold in reliance of Rule 144A shall be issued
initially in the form of one or more permanent Global Notes in registered form,
substantially in the form set forth in Exhibit B hereto ("Global Notes"),
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided and shall
bear the legend set forth on Exhibit C hereto. The aggregate principal amount of
any Global Note may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more Global Notes
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided and shall
bear the legend set forth on Exhibit C hereto or shall be issued in the form of
certificated Notes in registered form set forth in Exhibit B hereto (the
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"Offshore Physical Notes"). Notes offered and sold in reliance on any other
exemption from registration under the Securities Act other than as described in
the preceding paragraph shall be issued, and Notes offered and sold in reliance
on Rule 144A may be issued, in the form of certificated Notes in registered form
in substantially the form set forth in Exhibit B hereto (the "U.S. Physical
Notes"). The Offshore Physical Notes and the U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes."
Except as provided in Section 2.06 and 2.14, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of
certificated Notes.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a holder of beneficial interest in any Global Note.
SECTION 2.02. Execution and Authentication; Aggregate Principal
Amount.
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature.
If an Officer or Assistant Secretary whose signature is on a Note
was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue
in the aggregate principal amount not to exceed $[ ] and (ii) subject to
compliance with Section 4.12, one or more series of Notes for original issue
after the Issue Date (such Notes to be substantially in the form of Exhibit A
hereto or Exhibit B hereto) in an unlimited amount ("Additional Notes") in each
case upon written orders of the Company in the form of an Officers' Certificate,
which Officers' Certificate shall, in the case of any issuance of Additional
Notes,
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certify that such issuance is in compliance with Section 4.12. In addition, each
Officers' Certificate shall specify the amount of Notes to be authenticated and
the date on which the Notes are to be authenticated, whether the Notes are to be
Initial Notes or Additional Notes, and shall further specify that such Notes
shall be issued as Global Notes or Physical Notes. All Notes issued under this
Indenture shall vote and consent together on all matters as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the 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 Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only, without
coupons.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York),
which shall initially be The Bank of New York, where (a) Notes may be presented
or surrendered for registration of transfer or for exchange ("Registrar"), (b)
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company, upon prior written notice to the
Trustee, may have one or more co-Registrars and one or more additional Paying
Agents reasonably acceptable to the Trustee. The term "Paying Agent" includes
any additional Paying Agent. Neither the Company nor any Affiliate of the
Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, 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.
The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of demands and notices in connection with the Notes,
until such time as the Trustee has resigned or a successor has been appointed.
The Paying Agent or Registrar may resign upon 30 days' notice to the Company.
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SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that such Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, or interest on, the Notes (whether such assets have
been distributed to it by the Company or any other obligor on the Notes), and
the Company and the Paying Agent shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish or cause the Registrar to furnish
to the Trustee before each Record Date and at such other times as the Trustee
may request in writing a list as of such date and in such form as the Trustee
may reasonably require of the names and addresses of the Holders, which list may
be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
(a) When Notes are presented to the Registrar or a co-Registrar with
a request to register the transfer of such Notes or to exchange such Notes for
an equal principal amount of Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met, including the
requirements of Section 8-401(a)(1) of the Uniform Commercial Code. To permit
registrations of transfer and exchanges, the Company shall execute and the
Trustee shall authenticate Physical Notes or Global Notes at the Registrar's or
co-Registrar's request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.10, 3.06, 4.15, 4.16
or 9.05, in which event the Company shall be responsible for the payment of such
taxes).
The Registrar or co-Registrar shall not be required to register the
transfer or exchange of any Note (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day
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of such mailing and (ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note being redeemed in part.
(b) When Physical Notes are presented to the Registrar or
co-Registrar with a request to register the transfer of such Physical Notes or
to exchange such Physical Notes for an equal principal amount of Physical Notes
of other authorized denominations, the Registrar or co-Registrar shall register
the transfer or make the exchange as requested if its reasonable requirements
for such transaction are met; provided, however, that the Physical Notes
surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument or
transfer in form reasonably satisfactory to the Company and the Registrar
or co-Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing; and
(ii) are accompanied by the following additional information and
documents, as applicable:
(A) if such Physical Notes are being delivered to the
Registrar or co-Registrar by a Holder for registration in the name
of such Holder, without transfer, a certification from such Holder
to that effect; or
(B) if such Physical Notes are being transferred to the
Company, a certification to that effect.
(c) A Physical Note may not be exchanged for a beneficial interest
in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Physical Note, duly endorsed or accompanied by
a written instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-Registrar, together with written instructions directing
the Trustee to make, or to direct the custodian for the Depository to make, an
adjustment on its books and records with respect to such Global Note to reflect
an increase in the aggregate principal amount of the Notes represented by the
Global Note, such instructions to contain information regarding the Depository
account to be credited with such increase, then the Trustee shall cancel such
Physical Note and cause, or direct the custodian for the Depository to cause, in
accordance with the standing instructions and procedures existing between the
Depository and the custodian for the Depository, the aggregate principal amount
of Notes represented by the Global Notes to be increased by the aggregate
principal amount of the Physical Note to be exchanged and shall credit or cause
to be credited to the account of the Person specified in such instructions a
beneficial interest in the Global Note equal to the principal amount of the
Physical Note so canceled. If no Global Notes are then outstanding and the
Global Note has not been previously exchanged for certificated securities
pursuant to Section 2.14, the Company shall issue and the Trustee shall
authenticate,
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upon written order of the Company in the form of an Officers' Certificate, a new
Global Note in the appropriate principal amount.
(d) (i) Any Holder of a Global Note shall, by acceptance of such
Global Note agree that transfers of beneficial interest in such Global Note may
be effected only through a book-entry system maintained by (x) the Holder of
such Global Note (or its agent) or (y) any Holder of a beneficial interest in
such Global Note, and that ownership of a beneficial interest in such Global
Note shall be required to be reflected in a book entry.
(ii) The transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depository, in accordance with
this Indenture (including applicable restrictions on transfer set forth herein,
if any) and the Applicable Procedures of the Depository therefor. A transferor
or a beneficial interest in a Global Note shall deliver a written order given in
accordance with the Depository's procedures containing information regarding the
participant account of the Depository to be credited with a beneficial interest
in such Global Note or another Global Note and such account shall be credited in
accordance with such order with a beneficial interest in the applicable Global
Note and the account of the Person making the transfer shall be debited by an
amount equal to the beneficial interest in the Global Note being transferred.
(iii) Notwithstanding any other provisions of this Article 2 (other
than the provisions set forth in Section 2.14), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(e) At such time as all beneficial interests in a Global Note have
either been exchanged for Physical Notes, transferred, redeemed, repurchased or
canceled, such Global Note shall be returned by the Depository to the Trustee
for cancellation or retained and canceled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in a Global Note is exchanged for
Physical Notes, transferred in exchange for an interest in another Global Note,
redeemed, repurchased or canceled, the principal amount of Notes represented by
such Global Note shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the custodian for the Depository for
such Global Note) with respect to such Global Note, by the Trustee or the
custodian for the Depository, to reflect such reduction.
(f) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent, the Registrar or the
co-Registrar may deem and treat the person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or the co-Registrar shall be affected by notice to
the contrary.
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(g) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder must provide an affidavit of lost certificate and an indemnity bond or
other indemnity, sufficient in the judgment of both the Company and the Trustee,
to protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Note is replaced. The Company may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Note, including reasonable fees
and expenses of its counsel and of the Trustee and its counsel. Every
replacement Note shall constitute an additional obligation of the Company.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be outstanding
because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver, consent or notice, Notes owned
by the Company or any of its Affiliates shall be considered as though they are
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so
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owned shall be so considered. The Company shall notify the Trustee, in writing
(which notice shall constitute actual notice for purposes of the foregoing
sentence), when it or any of its Affiliates repurchases or otherwise acquires
Notes, of the aggregate principal amount of such Notes so repurchased or
otherwise acquired.
SECTION 2.10. Temporary Notes.
In the event that Physical Notes are to be issued under the terms of
this Indenture, until such Physical Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of Physical Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall,
upon receipt of a written order of the Company pursuant to Section 2.02,
authenticate Physical Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and, at the written direction of the Company, shall dispose
of all Notes surrendered for transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Company may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
SECTION 2.12. CUSIP Number.
A "CUSIP" number will be printed on the Notes, and the Trustee shall
use the CUSIP number in notices of redemption, purchase 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 or any CUSIP number
established with respect to any OID Exchange Units created in accordance with
Section 4.25 and any related cancellation of previous CUSIP numbers assigned to
Notes or OID Exchange Units, as the case may be.
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SECTION 2.13. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest Payment Date
and the Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or the Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be.
SECTION 2.14. Physical Notes.
(a) A Global Note deposited with the Depository or with the Trustee
as custodian for the Depository pursuant to Section 2.01 shall be transferred to
the beneficial owners thereof in the form of Physical Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.06 and (i)
the Depository notifies the Company that it is unwilling or unable to continue
as a Depository for such Global Note or if at any time the Depository ceases to
be a "clearing agency" registered under the Exchange Act, and a successor
depository is not appointed by the Company within 90 days of such notice or (ii)
the Company, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Notes under this Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section 2.14 shall be surrendered by the Depository to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal
amount of Physical Notes of authorized denominations. Any portion of a Global
Note transferred pursuant to this Section 2.14 shall be registered in such names
as the Depository shall direct.
(c) Subject to the provisions of Section 2.14(b), the registered
Holder of a Global Note may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in
Section 2.14(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Physical Notes in fully registered form
without interest coupons.
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in the Global Note pursuant to clause (b) or (c)
above shall, except as otherwise provided by clauses (a)(i)(x) and (c) of
Section 2.15, bear the legend regarding transfer restrictions applicable to the
Physical Notes set forth in Exhibit B.
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SECTION 2.15. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is subsequent to a
date which is two years after the later of the Issue Date and the last
date on which the Company or any of its affiliates was the owner of such
Note or (y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit D hereto or (2) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit E hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Applicable Procedures and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is
aware that
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the transferor is relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar
of instructions given in accordance with the Applicable Procedures and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Note in an amount equal to the principal amount of the Physical Notes to
be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the circumstance contemplated by paragraph (a)(i)(x) of this Section
2.15 exist or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.14 or this Section 2.15.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.16. Tax Treatment.
The Company agrees and, by acceptance of beneficial ownership
interest in the Notes, each beneficial owner of Notes shall be deemed to have
agreed (1) to treat the beneficial owners as owners of the Notes for all
purposes, including the preparation and filing of any United States federal,
state, local or foreign tax return, report or other information; (2) to treat
the Notes as the Company's indebtedness for all purposes; (3) to treat the
acquisition of an IDS as the acquisition of the Note and the share of Class A
Common Stock that are represented by the IDS; and (4) to report OID with respect
to the Notes and any OID Exchange Units for United States federal income tax
purposes consistently with the approach taken by the Company. Furthermore, by
acceptance of beneficial ownership in the Initial Notes, each beneficial owner
of Initial Notes agrees to allocate the purchase price of each IDS between the
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Note and the share of Class A Common Stock underlying such IDS for all purposes,
including the preparation and filing of any United States federal, state, local
or foreign tax return, report or other information, in accordance with the
Company's allocation, which, in the case of IDSs representing the Initial Notes
and shares of Class A Common Stock, is $6.75 for each Initial Note and $8.25 for
each share of Class A Common Stock underlying an IDS.
SECTION 2.17. Formation of IDSs.
IDSs shall be issued initially in the form of one or more permanent
Global IDSs in registered form, substantially in the form set forth in Exhibit F
hereto (the "Global IDSs"), deposited with the transfer agent for the IDSs (the
"IDS Transfer Agent"), as custodian for the Depository, duly executed by the
Company and authenticated by the IDS Transfer Agent. So long as not prohibited
by the terms of the Global IDS, each beneficial Holder of any Initial Note or
Non-OID Additional Note (or following an OID Exchange, any OID Exchange Unit)
may combine or recombine such Notes or OID Exchange Units, as the case may be,
with shares of Class A Common Stock to form IDSs by providing the IDS Transfer
Agent a notice substantially in the form of Exhibit G hereto.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects or is required to redeem Notes pursuant to
Paragraph 5 of the Notes, it shall notify the Trustee and the Paying Agent in
writing of the Redemption Date and the principal amount of the Notes to be
redeemed.
The Company shall give each notice provided for in this Section 3.01
at least 60 days before the Redemption Date (unless a shorter notice period
shall be satisfactory to the Trustee, as evidenced in a writing signed on behalf
of the Trustee), together with an Officers' Certificate and Opinion of Counsel
stating that such redemption shall comply with the conditions contained herein
and in the Notes.
SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate, unless the requirements
of DTC or of the principal national securities exchange or automated securities
quotation system, if any, on which such Notes are listed
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or quoted prohibit such method, in which case the selection of the Notes shall
be made in accordance with the requirements of DTC or such exchange or system.
The Trustee shall, in each case, make the selection from the Notes
outstanding and not previously called for redemption and 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. 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 a notice of redemption by first
class mail, postage prepaid, to each Holder whose Notes are to be redeemed at
its registered address, with a copy to the Trustee and any Paying Agent. At the
Company's written request, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense.
Each notice of redemption shall identify the Notes to be redeemed
(including the CUSIP numbers relating to such Notes or the related OID Exchange
Units, if applicable) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such
redemption is being made;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if
any;
(6) that, unless the Company fails to deposit with the Paying
Agent funds in satisfaction of the applicable redemption price, interest
on Notes called for redemption ceases to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such Notes
is to receive payment of the Redemption Price plus accrued interest, if
any, upon surrender to the Paying Agent of the Notes redeemed;
(7) 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, and upon
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surrender of such Note, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued; and
(8) if fewer than all the Notes ate to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant record dates referred to in the Notes.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus
accrued interest, if any, of all Notes to be redeemed on that date. The Paying
Agent shall promptly return to the Company any U.S. Legal Tender so deposited
which is not required for that purpose, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price plus accrued
interest, if any, interest on the Notes to be redeemed will cease to accrue on
and after the applicable Redemption Date, whether or not such Notes are
presented for payment.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Note or Notes equal in principal amount
to the unredeemed portion of the Note surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes and in this Indenture. An
installment of principal of or interest on the Notes shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment in full and is not prohibited from paying
such money to the Holders pursuant to the terms of this Indenture.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior 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 address of the
Trustee set forth in Section 12.02.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do
or cause to be done, at its own cost and expense, all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate existence of each of its Subsidiaries in accordance with the
respective organizational documents of each such Subsidiary and the material
rights (charter and statutory) and franchises of the Company and each such
Subsidiary; provided, however, that the Company shall not be required to
preserve, with respect to itself, any material right or franchise and, with
respect to any of its Subsidiaries, any such existence, material right or
franchise, if the Board of Directors of the Company shall determine in good
faith that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole.
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SECTION 4.04. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall be come delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or its properties or any of its Subsidiaries' properties and
(ii) all material lawful claims for labor, materials and supplies that, if
unpaid, might by law become a Lien upon its properties or any of its
Subsidiaries' properties; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being or
shall be contested in good faith by appropriate proceedings properly instituted
and diligently conducted for which adequate reserves, to the extent required
under GAAP, have been taken.
SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Subsidiaries to,
maintain its properties in good working order and condition in all material
respects (subject to ordinary wear and tear) and make all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto and
actively conduct and carry on its business; provided, however, that nothing in
this Section 4.05 shall prevent the Company or any of its Subsidiaries from
discontinuing the operation and maintenance of any of its properties if such
discontinuance is, in the good faith judgment of the Board of Directors or other
governing body of the Company or the Subsidiary concerned, as the case may be,
desirable in the conduct of its businesses and is not disadvantageous in any
material respect to the Holders.
(b) The Company shall maintain insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Company, are adequate and appropriate for the conduct of the
business of the Company and its Subsidiaries in a prudent manner, with reputable
insurers or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the good faith judgment of the Company, for
companies similarly situated in the industry.
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of the Company's fiscal year, an Officers' Certificate stating that a
review of its activities during the preceding fiscal year has been made under
the supervision of the signing Officers with a view to determining whether it
has kept, observed, performed and fulfilled its obligations under this Indenture
and further stating, as to each such Officer signing such certificate, that to
the best of such Officer's actual knowledge the Company during such preceding
fiscal year has kept, observed, performed and fulfilled each and every such
covenant and no Default or
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Event of Default occurred during such year and at the date of such certificate
there is no Default or Event of Default that has occurred and is continuing or,
if such signers do know of such Default or Event of Default, the certificate
shall describe the Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to Section
4.08 shall be accompanied by a written report of the Company's independent
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 Section 4.01, 4.04, 4.10, 4.11, 4.12 or 4.20 or Article Five
insofar as they relate 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) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 12.02, by
registered or certified mail or by telegram or facsimile transmission followed
by hard copy by registered or certified mail an Officers' Certificate specifying
such event, notice or other action within five Business Days of its becoming
aware of such occurrence.
SECTION 4.07. Compliance with Laws.
The Company shall, and shall cause each of its Subsidiaries to,
comply with all applicable statutes, rules, regulations, orders and restrictions
of the United States of America, all states and municipalities thereof, and of
any governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of its
businesses and the ownership of its properties, except for such noncompliances
as are not in the aggregate reasonably likely to have a material adverse effect
on the financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION 4.08. Reports to Holders.
Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company shall furnish the Holders of
Notes:
(a) 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"
that describes the financial condition
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and results of operations of the Company and its consolidated Subsidiaries
(showing in reasonable detail, either on the face of the financial
statements or in the footnotes thereto and in Management's Discussion and
Analysis of Financial Condition and Results of Operations, the financial
condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company, if any) and,
with respect to the annual information only, a report thereon by the
Company's certified independent accountants; and
(b) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports,
in each case within the time periods specified in the SEC's rules and
regulations.
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.10. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly,
(a) declare or pay any dividend or make any distribution (other than
dividends or distributions payable in Qualified Capital Stock of the
Company) on or in respect of shares of Capital Stock of the Company to
holders of such Capital Stock,
(b) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock,
(c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the
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Company that is subordinate or junior in right of payment to the Notes,
any Subsidiary Guarantee, the Intercompany Note or the Intercompany Note
Guaranty, or
(d) make any Investment (other than Permitted Investments)
(each of the foregoing actions set forth in clauses (a), (b), (c) and (d) being
referred to as a "Restricted Payment"), if at the time of such Restricted
Payment or immediately after giving effect thereto (with the value of any such
Restricted Payment, if other than cash, to be determined by the Board of
Directors of the Company, whose determination shall be conclusive and evidenced
by a Board Resolution),
(i) a Default or an Event of Default shall have occurred and be
continuing;
(ii) the Company is not able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 (or, in the case of a Restricted Payment by Coinmach Corp. or
any of its Restricted Subsidiaries, Coinmach Corp. is not able to incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
in compliance with Section 4.12); or
(iii) the aggregate amount of Restricted Payments (including such
proposed Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purposes, if other than in cash, being the Fair Market
Value of such property as determined in good faith by the Board of
Directors of the Company) shall exceed the sum of: (w) 50% of the
cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to December 31, 2004 and ending on the last day of the
Company's last fiscal quarter ending prior to the date the Restricted
Payment occurs for which financial statements are available (the
"Reference Date") (treating such period as a single accounting period);
plus (x) 100% of the aggregate net cash proceeds (excluding proceeds from
the exercise of the underwriters' over-allotment option) received by the
Company from any Person (other than a Subsidiary of the Company) from the
issuance and sale subsequent to December 31, 2004 and on or prior to the
Reference Date of Qualified Capital Stock of the Company or warrants,
options or other rights to acquire Qualified Capital Stock of the Company
or from the issuance of debt securities of the Company that have been
converted into or exchanged for Qualified Capital Stock subsequent to the
Issue Date and on or prior to the Reference Date; plus (y) without
duplication of any amounts included in clause (iii)(x) above, 100% of the
aggregate net cash proceeds of any equity contribution received by the
Company from a holder of the Company's Capital Stock subsequent to
December 31, 2004 and on or prior to the Reference Date (excluding, in the
case of clauses (iii)(x) and (y), any net cash proceeds from issuances and
sales of Qualified Capital Stock of the Company financed directly or
indirectly using funds borrowed from the Company or any Subsidiary of the
Company, until and to the extent such borrowing is repaid).
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Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of such dividend if the payment of such dividend would have
been permitted on the date of declaration;
(2) if no Default or Event of Default shall have occurred and be
continuing, the acquisition of any shares of Capital Stock of the Company,
either (i) solely in exchange for shares of Qualified Capital Stock of the
Company or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company;
(3) if no Default or Event of Default shall have occurred and be
continuing, the acquisition of any Indebtedness of the Company or any
Restricted Subsidiary that is subordinate or junior in right of payment to
the Notes, any Subsidiary Guarantee, the Intercompany Note or the
Intercompany Note Guaranty either (i) solely in exchange for shares of
Qualified Capital Stock of the Company, or (ii) through the application of
net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of (A) shares of Qualified Capital Stock of the
Company or (B) Refinancing Indebtedness;
(4) if no Default or Event of Default shall have occurred and be
continuing, an Investment through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company;
(5) if no Default or Event of Default shall have occurred and be
continuing, Restricted Payments in an aggregate amount not to exceed
$30,000,000;
(6) if no Default or Event of Default shall have occurred and be
continuing, the repurchase of Capital Stock from members of management or
Parent not to exceed $2,000,000 in any fiscal year; provided that any
amounts not used in such fiscal year may be carried forward one year (but
not beyond one year with any carried over amounts being deemed to be used
first in any fiscal year);
(7) if no Default or Event of Default shall have occurred and be
continuing, the declaration and payment of dividends on shares of
outstanding Common Stock of the Company up to an aggregate amount in any
fiscal quarter not to exceed the Quarterly Base Dividend Level determined
for the prior fiscal quarter so long as, as of any date of determination,
the Interest Coverage Test is met;
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(8) if no Default or Event of Default shall have occurred and be
continuing, the declaration and payment of dividends on shares of
outstanding Common Stock of the Company up to an aggregate amount in any
fiscal quarter not to exceed the Carry-Over Dividend Basket determined for
the prior fiscal quarter to the extent not applied to reduce Capital
Expenditures for such fiscal quarter for purposes of clause (b) of the
definition of "Distributable Cash Flow," so long as, as of any date of
determination, the Interest Coverage Test is met;
(9) any Restricted Payments in respect of Redemption Rights
permitted to be exercised pursuant to the terms of this Indenture;
(10) distributions to Parent or payments on behalf of Parent for or
in respect of (a) tax preparation, accounting, legal and administrative
fees and expenses, including travel and similar reasonable expenses,
incurred on behalf of the Company or its Restricted Subsidiaries or in
connection with Parent's ownership of the Company or its Restricted
Subsidiaries, and (b) reasonable and customary directors' fees to, and
indemnity provided on behalf of, the directors of Parent, and
reimbursement of customary and reasonable travel and similar expenses
incurred in the ordinary course of business in an aggregate amount not to
exceed $2,000,000 in any fiscal year;
(11) payments to holders of the Capital Stock of the Company in lieu
of the issuance of fractional shares of the Capital Stock of the Company;
(12) if no Default or Event of Default shall have occurred and be
continuing or would be caused thereby immediately following the making
thereof, the First Four Dividend Payments; and
(13) any Restricted Payment made in connection with the Transactions
as described in the Prospectus.
In determining the aggregate amount of Restricted Payments made subsequent to
the Issue Date in accordance with clause (iii) of the immediately preceding
paragraph, amounts expended pursuant to clauses (1), (2)(ii), (3)(ii)(a), (5),
(6), (7), (8) and (12) shall be included (without duplication) in such
calculation.
Not later than the date of making any Restricted Payment pursuant to
the provisions of the first paragraph of this Section 4.10 and no less
frequently than quarterly in the case of all other Restricted Payments, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
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SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each, an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary.
(b) All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a Fair Market Value in excess of $5,000,000
shall be approved by a majority of the disinterested members of the Board of
Directors of the Company or such Restricted Subsidiary, as the case may be, such
approval to be evidenced by a Board Resolution stating that such Board of
Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate Fair Market Value of more
than $10,000,000, the Company or such Restricted Subsidiary, as the case may be,
shall, prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such transaction or series of related transactions to the Company or
the relevant Restricted Subsidiary, as the case may be, from a financial point
of view, from an Independent Financial Advisor and file the same with the
Trustee.
(c) The restrictions set forth in paragraph (a) shall not apply to:
(i) reasonable fees and compensation paid to, and indemnity provided
on behalf of, officers, directors, employees or consultants of the Company
or any Restricted Subsidiary of the Company as determined in good faith by
the Company's Board of Directors or senior management;
(ii) transactions exclusively between or among the Company and any
of its Wholly Owned Restricted Subsidiaries or exclusively between or
among such Wholly Owned Restricted Subsidiaries, in each case so long as
such transactions are not otherwise prohibited by this Indenture;
(iii) any agreement as in effect as of the Issue Date or any
amendment thereto or any replacement thereto, or any transaction
contemplated thereby (including pursuant to any amendment thereto) so long
as any such amendment or replacement agreement is not more disadvantageous
to the Holders in any material respect than the original agreement as in
effect on the Issue Date;
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(iv) Permitted Investments and Restricted Payments permitted by
Section 4.10;
(v) the exercise of Redemption Rights, Sales Rights and transactions
pursuant to other agreements entered into on the Issue Date in connection
with the Transactions; and
(vi) employment, stock option, stock repurchase, employee benefit
compensation, business expense reimbursement, severance, termination or
other employment-related agreements, arrangements or plans, including, but
not limited to, issuance or grants under the 2004 LTIP of the Company or
any Restricted Subsidiary of the Company entered into in the ordinary
course of business.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
Guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness); provided, however, that if no
Default or Event of Default shall have occurred and be continuing at the time of
or as a consequence of the incurrence of any such Indebtedness,
(i) the Company or any Subsidiary Guarantor, concurrent with or
subsequent to the effectiveness of its Subsidiary Guarantee, may incur
Indebtedness (including, without limitation, Acquired Indebtedness) if on
the date of the incurrence of such Indebtedness, after giving effect to
the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of
the Company is greater than 2.0 to 1.0 and
(ii) at any time prior to the occurrence of the Merger Event,
Coinmach Corp. and any of its Restricted Subsidiaries may incur
Indebtedness (including, without limitation, Acquired Indebtedness) if on
the date of the incurrence of such Indebtedness, after giving effect to
the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of
Coinmach Corp. is greater than 2.0 to 1.0.
(b) The Company will not, and will not permit any Subsidiary
Guarantor or any Subsidiary that is an obligor or guarantor of the Intercompany
Note (any "Intercompany Note Obligor") to, directly or indirectly, incur any
Indebtedness which is or purports to be by its terms (or by the terms of any
agreement governing such Indebtedness) subordinated in right of payment to any
other Indebtedness of the Company or any Subsidiary Guarantor or Intercompany
Note Obligor, as the case may be, unless such Indebtedness is also by its terms
(or by the terms of any agreement governing such Indebtedness) made expressly
subordinate in right of payment to the Notes, any Subsidiary Guarantee, the
Intercompany Note and the Intercompany Note Guaranty, as the case may be, in
each case to the same extent and in the
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same manner as such Indebtedness is subordinated in right of payment to such
other Indebtedness.
(c) For purposes of determining compliance with, and the outstanding
principal amount of, any particular Indebtedness incurred pursuant to and in
compliance with this Section 4.12, the amount of Indebtedness issued at a price
that is less than the principal amount thereof will be equal to the amount of
the liability in respect thereof determined in accordance with GAAP. The accrual
of interest, the accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms and the payment of dividends on Disqualified Stock or
preferred stock in the form of additional shares of the same class of
Disqualified Stock or preferred stock will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.12.
(d) The Company will not issue indebtedness represented by
Additional IDS Notes after the Issue Date (whether pursuant to clause (xiv) of
the definition of "Permitted Indebtedness" or otherwise) unless at the same time
and in connection therewith it receives an opinion of independent counsel
nationally recognized in U.S. federal income tax matters to the effect that,
based on customary assumptions and factual representations, such Additional IDS
Notes and any Additional Notes issued in connection therewith will be treated as
indebtedness for U.S. federal income tax purposes (although such opinion may be
qualified in the same manner as the equivalent opinion received by the Company
with respect to the Notes underlying the IDSs and the Notes not underlying IDSs
issued on the Issue Date).
(e) The Company will not issue Indebtedness represented by
Additional IDS Notes after the Issue Date unless at the same time and in
connection therewith (i) it issues Additional Notes not underlying IDSs having
an aggregate principal amount of not less than 11.1% of the aggregate principal
amount of the Notes underlying such IDSs and (ii) the purchasers of such
Additional Notes are required to make the same representations to the Company
required of purchasers of Notes not underlying IDSs purchased on the Issue Date.
The foregoing sentence shall not apply to issuances by the Company of IDSs from
time to time after the Issue Date having an aggregate issue price not to exceed
$200,000,000 and, to the extent issued as incentive compensation to directors or
officers of the Company or any of its Subsidiaries, additional IDSs having an
aggregate issue price not to exceed $5,000,000.
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to:
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(a) pay dividends or make any other distributions on or in respect
of its Capital Stock, or with respect to any other interest or
participation in, or measured by, its profits, to the Company or any of
its Restricted Securities or pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries;
(b) make loans or advances or pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary of the
Company; or
(c) transfer any of its property or assets to the Company or any
other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of:
(1) applicable law;
(2) this Indenture, the Notes, any Additional Notes and the
Collateral Agreements;
(3) customary non-assignment provisions of any contract or any lease
governing a leasehold interest of any Restricted Subsidiary of the
Company;
(4) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;
(5) agreements existing on the Issue Date to the extent and in the
manner such agreements are in effect on the Issue Date, including the
Credit Agreement, the Intercreditor Agreement and the indenture governing
the 9% Coinmach Corp. Notes;
(6) an agreement (i) governing Indebtedness incurred to Refinance
the Indebtedness issued, assumed or incurred pursuant to an agreement
referred to in clause (2), (4) or (5) above and (ii) governing any other
Indebtedness of the Company or any Restricted Subsidiary permitted to be
incurred under this Indenture; provided, however, that the provisions
relating to such encumbrance or restriction contained in any such
Indebtedness are no less favorable to the Company in any material respect
as determined by the Board of Directors of the Company in their reasonable
and good faith judgment than the provisions relating to such encumbrance
or restriction contained in agreements referred to in such clause (2), (4)
or (5);
(7) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all
or substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition;
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(8) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(9) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business; or
(10) customary restrictions on the transfer of assets subject to a
Permitted Lien imposed by the holder of such Liens.
SECTION 4.14. Limitation on Issuances of Certain Guarantees by, and
Debt Securities of, Restricted Subsidiaries.
(a) The Company will not permit any of its Restricted Subsidiaries
to directly or indirectly Guarantee any Indebtedness of the Company unless such
Restricted Subsidiary simultaneously executes and delivers a Subsidiary
Guarantee. At any time prior to the occurrence of the Merger Event, the Company
will not permit any Subsidiary of Coinmach Corp. to directly or indirectly
Guarantee any Indebtedness of Coinmach Corp. unless such Subsidiary
simultaneously executes and delivers a joinder to the Intercompany Note
Guaranty.
(b) Notwithstanding the provisions of clause (a) of this Section
4.14, Coinmach Corp. and each other Significant Subsidiary of the Company that
is a Domestic Restricted Subsidiary shall, on the first day it is not prohibited
from guaranteeing all Obligations outstanding under the Notes under the terms of
its Indebtedness outstanding from time to time, execute and deliver a Subsidiary
Guarantee. Any such Subsidiary Guarantee shall not be subordinated in right of
payment to any Indebtedness of the Subsidiary providing the Subsidiary
Guarantee. A Subsidiary (other than Coinmach Corp.) shall be deemed released
from all of its obligations under its Subsidiary Guarantee at any such time that
such Subsidiary is released from all of its obligations under all of its
Guarantees in respect of other Indebtedness of the Company, as applicable.
SECTION 4.15. Limitation on Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer to purchase all outstanding Notes pursuant to the offer described
in paragraph (b) below (a "Change of Control Offer") at a purchase price equal
to 101% of the principal amount thereof plus accrued interest, if any, to the
date of purchase.
(b) Within 30 days following the date upon which the Change of
Control occurred (the "Change of Control Date"), if the Company has not, prior
to the Change of Control, sent a redemption notice for all of the Notes in
accordance with Paragraph 5 of the Notes and Section 3.01, the Company shall
send, by first class mail, a notice to each Holder, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer. The
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notice to the Holders shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Change of Control Offer.
Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered and not withdrawn will be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 61 days nor later
than 90 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will 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 Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder
is withdrawing its election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered;
(8) that Holders of IDSs electing to have a Note purchased pursuant
to a Change of Control Offer will be required to separate its IDSs into
shares of the Company's Class A Common Stock and Notes; and
(9) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Notes or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all Notes
so tendered and (iii) deliver to the Trustee
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Notes so accepted together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail to the Holders of Notes so accepted payment in an amount equal to the
purchase price plus accrued interest, if any, and the Trustee shall promptly
authenticate and mail to such Holders new Notes equal in principal amount to any
unpurchased portion of the Notes surrendered. Any Notes not so accepted shall be
promptly mailed by the Company to the Holders thereof. For purposes of this
Section 4.15, the Trustee shall act as the Paying Agent.
(c) Any amounts remaining after the purchase of Notes pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
(d) The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 4.15, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.15 by virtue thereof.
(e) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements of this Section 4.15 and purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer.
SECTION 4.16. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(i) the Company or the applicable Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets sold or otherwise disposed of
(as determined in good faith by the Company's Board of Directors);
(ii) at least 75% of the consideration received by the Company or
the Restricted Subsidiary, as the case may be, from such Asset Sale shall
be in the form of cash or Cash Equivalents and is received at the time of
such disposition; and
(iii) upon the consummation of an Asset Sale, the Company shall
apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 360 days of receipt thereof either
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(A) to make an investment in properties and assets that replace the
properties and assets that were the subject of such Asset Sale or in
properties and assets that will be used in the business of the Company and
its Restricted Subsidiaries as existing on the Issue Date or in businesses
reasonably related thereto ("Replacement Assets"),
(B) to permanently reduce Indebtedness under the Credit Agreement;
provided that, to the extent the Asset Sale comprised assets of the
Company, the transfer of any Net Cash Proceeds from the Company to
Coinmach Corp. in order to reduce such Indebtedness is made in compliance
with Section 4.20,
(C) to the extent the Asset Sale comprised assets of a Restricted
Subsidiary that is not a Subsidiary Guarantor or an Intercompany Note
Obligor, to permanently reduce Indebtedness of any Restricted Subsidiary
that is not a Subsidiary Guarantor or an Intercompany Note Obligor, or
(D) a combination of prepayment and investment permitted by the
foregoing clauses (iii)(A), (iii)(B) and (iii)(C);
provided, however, that (1) the 75% limitation set forth in clause (ii) of this
paragraph shall not apply to any proposed Asset Sale for which an independent
certified accounting firm shall certify to the Board of Directors of the Company
and the Trustee that the after-tax cash portion of the consideration to be
received by the company or such Restricted Subsidiary in such proposed Asset
Sale is equal to or greater than what the net after-tax cash proceeds would have
been had such proposed Asset Sale Complied with the 75% limitation set forth in
clause (ii) of this paragraph; (2) for purposes of this Section 4.16, Cash
Equivalents shall include any Indebtedness under the Credit Agreement of the
Company or any Restricted Subsidiary (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet or in the notes thereto) that
is assumed by the transferee and for which the Company or such Restricted
Subsidiary is reasonably indemnified in connection with the relevant Asset Sale;
and (3) any Asset Sale of the Intercompany Note or any Intercompany Note
Guarantee, or any interest therein, shall be made in compliance with the terms
of the Security Agreement.
On the 361st day after an Asset Sale or such earlier date, if any,
as the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in clauses (iii)(A), (iii)(B), (iii)(C) and (iii)(D) of the preceding
paragraph (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of
Net Cash Proceeds which have not been applied on or before such Net Proceeds
Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B), (iii)(C) and
(iii)(D) of the preceding paragraph (each, a "Net Proceeds Offer Amount") shall
be applied by the Company or such Restricted Subsidiary to make an offer to
purchase (a "Net Proceeds Offer") on a date (a "Net Proceeds Offer Payment
Date") not less than 30 nor more than 60 days following the
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applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata
basis, that amount of Notes equal to the Net Proceeds Offer Amount at a price
equal to 100% of the principal amount of the Notes to be purchased, plus accrued
and unpaid interest thereon, if any, to the date of purchase; provided, however,
that, notwithstanding the foregoing, (i) in the case of an Asset Sale comprising
assets of a Restricted Subsidiary of the Company, the Company shall not be
required to make a Net Proceeds Offer to the extent such Restricted Subsidiary
is not permitted pursuant to its outstanding Indebtedness to make a Restricted
Payment to the Company, and (ii) if at any time any non-cash consideration
received by the Company or any Restricted Subsidiary of the Company, as the case
may be, in connection with any Asset Sale is converted into or sold or otherwise
disposed of for cash (other than interest received with respect to any such
non-cash consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this Section 4.16. The Company may defer the Net
Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount
equal to or in excess of $5,000,000 resulting from one or more Asset Sales (at
which time, the entire unutilized Net Proceeds Offer Amount, and not just the
amount in excess of $5,000,000, shall be applied as required pursuant to this
paragraph).
In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01, which
transaction does not constitute a Change of Control, the successor corporation
shall be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this Section 4.16,
and shall comply with the provisions of this Section with respect to such deemed
sale as if it were an Asset Sale. In addition, the Fair Market Value of such
properties and assets of the Company or its Restricted Subsidiaries deemed to be
sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.16.
Notwithstanding the first paragraph of this Section 4.16(a), the
Company and its Restricted Subsidiaries will be permitted to consummate an Asset
Sale without complying with such paragraph to the extent that (i) at least 75%
of the consideration for such Asset Sale constitutes Replacement Assets and (ii)
such Asset Sale is for Fair Market Value; provided that any cash or Cash
Equivalents received by the Company or any of its Restricted Subsidiaries in
connection with any Asset Sale permitted to be consummated under this paragraph
shall constitute Net Cash Proceeds subject to the provisions of the second
paragraph of this Section 4.16(a).
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date
contained in subsection (a) above, each notice of a Net Proceeds Offer pursuant
to this Section 4.16 shall be mailed, by first class mail, by the Company not
more than 25 days after the Net Proceeds Offer Trigger Date to all Holders at
their last registered addresses as of a date within 15 days of the mailing of
such notice, with a copy to the Trustee. The notice shall contain all
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instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this
Section 4.16 and that all Notes tendered, in whole or in part, will be
accepted for payment; provided, however, that if the aggregate principal
amount of Notes tendered in a Net Proceeds Offer plus accrued interest at
the expiration of such offer exceeds the aggregate amount of the Net
Proceeds Offer, the Company shall select the Notes to be purchased on a
pro rata basis;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be 20 Business Days from the date of
mailing of notice of such Net Proceeds Offer, or such longer period as
required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net
Proceeds Offer will 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 Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Proceeds Purchase Date, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Notes
the Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered;
(8) that Holders of IDSs electing to have a Note purchased pursuant
to a Net Proceeds Offer will be required to separate its IDSs into shares
of the Company's Class A Common Stock and Notes; and
(9) the circumstances and relevant facts regarding such Change of
Control.
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On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (b)(1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes to be purchased and
(iii) deliver to the Trustee Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued interest,
if any. For purposes of this Section 4.16, the Trustee shall act as the Paying
Agent.
Any amounts remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under
Section 4.16 by virtue thereof.
SECTION 4.17. Limitation on Preferred Stock of Restricted
Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Wholly Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company.
SECTION 4.18. Limitation on Liens.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind (except for Permitted Liens)
against or upon any property or assets of the Company or any of its Restricted
Subsidiaries whether owned on the Issue Date or acquired after the Issue Date,
or any proceeds therefrom, or assign or otherwise convey any right to receive
income or profits therefrom.
SECTION 4.19. Conduct of Business.
The Company and its Restricted Subsidiaries will not engage in any
businesses which are not the same, similar or reasonably related to the
businesses (including, without
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limitation, route businesses) in which the Company and its Restricted
Subsidiaries are engaged on the Issue Date.
SECTION 4.20. Limitation on Equity Contributions to Restricted
Subsidiaries; Obligations To Transfer Certain Proceeds.
(a) At any time prior to the occurrence of the Merger Event that the
Total Remaining Payments Tests are not met,
(i) the Company shall not transfer any assets, directly or
indirectly, to any Subsidiary other than Coinmach Corp.,
(ii) if and to the extent any direct or indirect transfer of assets
is made to Coinmach Corp., such transfer shall automatically be deemed to
be Indebtedness incurred under the Intercompany Note (and Indebtedness
under the Intercompany Note shall be increased by the Fair Market Value of
any assets so transferred), and
(iii) the net proceeds received by the Company from any offer and
sale of IDSs, Capital Stock or Indebtedness of the Company shall:
(1) in the case of any such net proceeds resulting from the
issuance of IDSs or Class A Common Stock, be used to redeem shares
of Class B Common Stock that are tendered to the Company in
connection with the exercise of any Redemption Right related thereto
by the Company or the exercise of any Sales Right related thereto by
the holder thereof to the extent permitted by Section 4.21;
(2) if and to the extent Coinmach Corp. is permitted to incur
such Indebtedness under the terms of its other Indebtedness
outstanding from time to time, be lent as promptly as practicable to
Coinmach Corp. as Indebtedness under the Intercompany Note; or
(3) any combination thereof.
(b) Any such Indebtedness incurred or deemed incurred under the
Intercompany Note pursuant to clause (a)(ii) or (a)(iii)(2) above shall have an
aggregate principal amount equal to the amount of cash so transferred (or, in
the case of assets not constituting cash, the Fair Market Value of such assets
(which shall, to the extent involving assets with a Fair Market Value in excess
of $5,000,000, be determined by the Board of Directors of the Company in its
reasonable and good faith judgment, such determination to be evidenced by a
Board Resolution)). If any such net proceeds remain outstanding and Coinmach
Corp. is not permitted to incur such additional Indebtedness under the terms of
its other Indebtedness, the Company may (x) retain such amounts until such time
as such amounts may be applied in ac-
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cordance with such clause (a)(iii)(2) above, (y) pay any portion of any interest
then accrued and unpaid and principal on the Notes on the date such interest or
principal becomes due and payable, or (z) any combination thereof.
(c) Notwithstanding anything to the contrary in this Section 4.20,
the Company shall be permitted to apply the proceeds of the offerings described
in the Prospectus (including proceeds received in connection with the exercise
of the over-allotment option by the underwriters thereof) to consummate the
Transactions as described in the Prospectus.
SECTION 4.21. Exercise of Redemption Rights and Sales Rights.
The Company will not exercise any Redemption Rights or redeem any
shares of Class B Common Stock that are tendered to the Company in connection
with the exercise of any Sales Rights related thereto by the holder thereof
prior to the date that is six months after the Issue Date. Thereafter, the
Company will not exercise any Redemption Right or redeem any shares of Class B
Common Stock that are tendered to the Company in connection with the exercise of
any Sales Right related thereto, in each case unless:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) for the most recent fiscal quarter for which internal financial
statements are available after giving pro forma effect to such exercise
and the application of proceeds, if any, therefrom, the Company would have
been permitted under clause (7) of the second paragraph of Section 4.10 to
pay a per share dividend with respect to all Class A Common Stock in an
amount not less than the average per share dividend declared by the
Company's Board of Directors with respect to the Class A Common Stock for
such fiscal quarter and the fiscal quarter immediately preceding such
fiscal quarter, as adjusted for any separation, combination,
reclassification or other like event with respect to the Class A Common
Stock;
(3) the Consolidated Fixed Charge Coverage Ratio of the Company at
the time of the exercise and after giving pro forma effect to such
exercise and the application of proceeds, if any, therefrom would have
been greater than 2.125 to 1.0; and
(4) if such exercise occurs prior to the Merger Event, at the time
of the exercise and immediately after giving effect thereto, either the
Disproportionality Test or the Total Remaining Payments Tests are met.
SECTION 4.22. Impairment of Security Interest.
So long as a Secured Period is then in effect, subject to the
Intercreditor Agreement, the Company shall not take or omit to take (or permit
to be taken or omit to be taken)
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any action that would adversely affect or impair in any material respect the
Liens in favor of the Collateral Agent with respect to the Collateral. Neither
the Company nor Laundry Corp. shall grant to any Person (other than the
Collateral Agent), or permit any Person (other than the Collateral Agent), to
retain any interest whatsoever in the Collateral other than holders of Permitted
Liens. Neither the Company nor Laundry Corp. will enter into any agreement that
requires the proceeds received from any sale of Collateral to be applied to
repay, redeem, defease or otherwise acquire or retire any Indebtedness of any
Person (other than a holder of a Permitted Lien) other than as permitted by this
Indenture, the Notes, the Intercreditor Agreement and the Collateral Agreements.
The Company shall, at its sole cost and expense, execute and deliver, and cause
to be executed and delivered, all such agreements and instruments as the
Collateral Agent or the Trustee shall reasonably request to more fully or
accurately describe the property intended to be Collateral or the obligations
intended to be secured by the Collateral Agreements. The Company shall, at its
sole cost and expense, file, and cause to be filed, any such notice filings or
other agreements or instruments as may be reasonably necessary or desirable
under applicable law to perfect the Liens created by the Collateral Agreements
at such times and at such places as the Collateral Agent or the Trustee may
reasonably request.
SECTION 4.23. Limitation on Repurchases and Payments for Consents.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly,
(1) purchase, redeem or otherwise acquire or retire for value any
Notes not underlying an IDS, or
(2) pay or cause to be paid any consideration to or for the benefit
of any Holder of Notes not underlying an IDS (including Notes that have
separated from the IDSs after the Issue Date) for or as an inducement to
any consent, waiver or amendment of any of the terms or provisions of this
Indenture, the Notes, the Intercompany Note, the Intercompany Note
Guaranty, any Collateral Agreement or the Intercreditor Agreement,
unless the purchase, redemption or acquisition is available to all Holders of
Notes and the applicable consideration is offered to be paid and is paid to all
Holders of Notes that accept such offer to purchase, redeem or otherwise acquire
or retire for value or that consent, waive or agree to amend, in each case in
the time frame set forth in the applicable offer or solicitation documents.
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SECTION 4.24. Limitation on Asset Transfers to Subsidiaries that Are
not Subsidiary Guarantors or Intercompany Note Obligors.
The Company will not, and will not cause or permit any Subsidiary
Guarantor or Intercompany Note Obligor to, directly or indirectly sell, convey,
lease (other than operating leases entered into in the ordinary course of
business), assign or otherwise transfer any asset of any such Person to any
Subsidiary of the Company (other than any such Subsidiary that is a Domestic
Restricted Subsidiary and is, or concurrently with such sale, conveyance, lease,
assignment or other transfer will be, a Subsidiary Guarantor or Intercompany
Note Obligor) following the Issue Date unless such sale, conveyance, lease,
assignment or other transfer is made in compliance with Section 4.11 (without
giving effect to clauses (c)(ii) and (c)(iv) thereof).
SECTION 4.25. Subsequent Issuance.
(a) Upon the issuance by the Company of Additional Notes with OID in
a Primary Registered Offering, immediately following such issuance, a portion of
each Holder's Initial Notes, Additional Notes issued in a Primary Registered
Offering without OID (if any) (the "Non-OID Additional Notes") and/or such
Additional Notes, as applicable, or beneficial interest therein, will
automatically, without any action by such Holder, be exchanged (each, an "OID
Exchange") for a portion of each other Holder's Initial Notes, Non-OID
Additional Notes (if any) and/or such Additional Notes, such that immediately
after the OID Exchange, each Holder will hold Initial Notes, Non-OID Additional
Notes (if any) and such Additional Notes in the same proportion as the ratio of
the then outstanding aggregate principal amount of the Initial Notes (and
Non-OID Additional Notes, if applicable) to the then outstanding aggregate
principal amount of such Additional Notes. The aggregate principal amount of
Notes owned by each Holder will not change as a result of the OID Exchange.
Immediately following the OID Exchange, the Company and the Trustee will
instruct the Depositary to facilitate the combination of the Initial Notes,
Non-OID Additional Notes (if any) and/or such Additional Notes into inseparable
units (such units, and any units so created following any issuance described in
paragraph (b) below, the "OID Exchange Units").
(b) After the occurrence of an OID Exchange and upon any subsequent
issuance by the Company of Additional Notes in a Primary Registered Offering,
immediately following such issuance a portion of each Holder's OID Exchange
Units and/or such Additional Notes, as applicable, will be automatically
exchanged in accordance with the OID Exchange provisions in clause (a) above.
(c) At least ten (10) Business Days prior to the closing of any
transaction that is likely to result in an OID Exchange, the Company shall
notify the Trustee and the Depositary in writing of its intention to consummate
such transaction and shall instruct the Trustee and the Depositary to take any
action necessary to effect the OID Exchange. Such notice
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may be revoked at any time prior to the date fixed for the OID Exchange by
delivery of a notice in writing to the Trustee and the Depositary.
(d) The Company agrees, and by acceptance of beneficial ownership in
the Notes each such beneficial owner of Notes shall be deemed to have agreed,
that (i) the Company will report any OID associated with Notes represented by
the OID Exchange Units among all Holders of OID Exchange Units in proportion to
their ownership of the aggregate principal amount of Notes represented by OID
Exchange Units, and (ii) each beneficial owner of OID Exchange Units shall
report such OID in this manner and shall not take an inconsistent position for
any applicable tax purpose.
(e) With respect to any Additional Notes exchanged in any OID
Exchange, Holders may obtain the amount of OID in respect of such Additional
Notes, the date of issuance, the issue price and the yield to maturity by
submitting a written request to the Company.
ARTICLE Five
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(i) either (1) the Company shall be the surviving or
continuing corporation or (2) the Person (if other than the Company)
formed by such consolidation or into which the Company is merged or
the Person which acquires by sale, assignment, transfer, lease,
conveyance or other disposition the properties and assets of the
Company and of the Company's Restricted Subsidiaries substantially
as an entirety (the "Surviving Entity"): (x) shall be a corporation
organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia and (y) shall
expressly assume, (A) by supplemental indenture (in form and
substance satisfactory to the Trustee), executed and delivered to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, this Indenture and the
Registration Rights Agreement on the part of the Company to be
performed or observed and (B) by
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amendment, supplement or other instrument (in form and substance
reasonably satisfactory to the Trustee and the Collateral Agent),
executed and delivered to the Trustee and the Collateral Agent, all
Obligations of the Company under the Collateral Agreements, and in
connection therewith shall cause such instruments to be filed and
recorded in such jurisdictions and take such other actions as may be
required by applicable law to perfect or continue the perfection of
the Lien created under the Collateral Agreements on the Collateral
owned by or transferred to the surviving entity;
(ii) immediately after giving effect to such transaction and
the assumption contemplated by clause (a)(i)(2)(y) of this Section
5.01 (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection
with or in respect of such transaction), the Company or such
Surviving Entity, as the case may be, shall be able to incur at
least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12;
(iii) immediately before and immediately after giving effect
to such transaction and the assumption contemplated by clause
(a)(i)(2)(y) of this Section 5.01 (including, without limitation,
giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred and any Lien granted in connection
with or in respect of the transaction), no Default or Event of
Default shall have occurred or be continuing; and
(iv) the Company or the Surviving Entity shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent in
this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
Notwithstanding anything in this Section 5.01 to the contrary, (1)
the Company may merge with an Affiliate that has no material assets or
liabilities and that is incorporated or organized solely for the purpose of
reincorporating or reorganizing the Company in another state of the United
States or the District of Columbia without complying with clause (a)(ii) of this
Section 5.01, (2) the merger or consolidation of Coinmach Corp. with and into
the Company need only comply with clause (a)(iv) of this Section 5.01, and (3)
the merger or xxxxxxx-
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dation of the Company with and into Coinmach Corp. need only comply with clauses
(a)(i)(2)(y) and (a)(iv) of this Section 5.01.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of the Company in accordance with the
foregoing in which the Company is not the continuing corporation, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such surviving entity
had been named as such, and the Company shall be released from the obligations
under the Notes and this Indenture except in the case of a lease of the
Company's assets and except with respect to any obligations under the Notes and
this Indenture that arise from, or related to, such transaction.
ARTICLE Six
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" shall occur if:
(1) the Company fails to pay interest on any Notes when the same
becomes due and payable and the Default continues for a period of 30 days;
(2) the Company fails to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds Offer or
the failure to make any Sinking Fund payment);
(3) the Company defaults in the observance or performance of any of
the covenants described in Sections 4.08, 4.16 and 4.19 which default
continues for a period of 60 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the aggregate
outstanding principal amount of the Notes;
(4) the Company defaults in the observance or performance of any
other covenant or agreement contained in this Indenture or any Collateral
Agreement which
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default continues for a period of 30 days after the Company receives
written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the aggregate
outstanding principal amount of the Notes (except in the case of a default
with respect to Article Five, which will constitute an Event of Default
with such notice requirement but without such passage of time
requirement);
(5) the Company fails to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise
cured within 20 days of receipt by the Company or such Restricted
Subsidiary of notice of any such acceleration) if the aggregate principal
amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated (in each case with respect to which
the 20-day period described above has elapsed), aggregates $10,000,000 or
more at any time; provided that, for purposes of this clause (5), the
failure to pay at final maturity any Indebtedness under the Intercompany
Note and the Intercompany Note Guaranty, or the acceleration of the final
stated maturity of any Indebtedness under the Intercompany Note and the
Intercompany Note Guaranty (which acceleration is not rescinded, annulled
or otherwise cured within 20 days of receipt by Coinmach Corp. of written
notice of any such acceleration), shall be an Event of Default;
(6) one or more judgments in an aggregate amount in excess of
$10,000,000 (which are not covered by insurance as to which the insurer
has not disclaimed coverage) shall have been rendered against the Company
or any of its Restricted Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable;
(7) the Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (B) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a Custodian of it or
for substantially all of its property, (D) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(E) makes a general assignment for the benefit of its creditors, or (F)
takes any corporate action to authorize or effect any of the foregoing;
(8) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Significant Subsidiary
in an involuntary case
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or proceeding under any Bankruptcy Law, which shall (A) approve as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition in respect of the Company or any Significant Subsidiary,
(B) appoint a Custodian of the Company or any Significant Subsidiary or
for substantially all of its property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall
remain unstayed and in effect for a period of 60 consecutive days;
(9) any Collateral Agreement shall cease to be in full force and
effect, or ceases to be effective in all material respects to grant a
perfected Lien on the Collateral with the priority purported to be created
thereby for 30 days after notice by the Trustee or the Holders of at least
25% of the aggregate outstanding principal amount of the Notes to the
Company; and
(10) any Subsidiary Guarantee of a Significant Subsidiary ceases
following the delivery thereof to be in full force and effect or any
Subsidiary Guarantee of a Significant Subsidiary is declared to be null
and void and unenforceable or any Subsidiary Guarantee of a Significant
Subsidiary is found to be invalid or any Subsidiary Guarantor that is a
Significant Subsidiary denies its liability under its Subsidiary Guarantee
(other than by reason of release of a Subsidiary Guarantor in accordance
with the terms of this Indenture).
SECTION 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default specified
in Section 6.01(7) or (8) with respect to the Company) occurs and is
continuing and has not been waived pursuant to Section 6.04, then the
Trustee or the Holders of at least 25% in principal amount of outstanding
Notes may declare the principal of and accrued interest on all the Notes
to be due and payable by notice in writing to the Company and the Trustee
specifying the Event of Default and that it is a "notice of acceleration,"
and the same shall become immediately due and payable.
(b) If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company occurs and is continuing, then all unpaid principal
of, and premium, if any, and accrued and unpaid interest on all of the
outstanding Notes shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or
any Holder.
(c) At any time after a declaration of acceleration with respect to
the Notes in accordance with this Section 6.02, the Holders of a majority
in aggregate principal amount of the Notes, which majority includes, if a
Separation Event of Default has occurred, Holders of at least 10% in
aggregate principal amount of Notes that do not beneficially own (and are
not Affiliates of a beneficial owner of) an equity interest of the Company
(including but not
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limited to Capital Stock of the Company), may rescind and cancel such
declaration and its consequences:
(i) if the rescission would not conflict with any judgment or
decree;
(ii) if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become
due solely because of the acceleration;
(iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid;
(iv) if the Company has paid the Trustee and the Collateral
Agent their reasonable compensation and reimbursed the Trustee and
the Collateral Agent for their expenses, disbursements and advances;
and
(v) in the event of the cure or waiver of an Event of Default
of the type described in Sections 6.01(7) or (8), the Trustee shall
have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or 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 in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority
in principal amount of the outstanding Notes, which majority includes, if a
Separation Event of Default has occurred, Holders of at least 10% in aggregate
principal amount of Notes that do not beneficially own (and are not Affiliates
of a beneficial owner of) an equity interest of the
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Company (including but not limited to Capital Stock of the Company), by notice
to the Trustee may waive any existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on any
Note as specified in clauses (1) and (2) of Section 6.01. When a Default or
Event of Default is waived, it is cured and ceases.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, including, without
limitation, any remedies provided for in Section 6.03. Subject to Section 7.01,
however, the Trustee may refuse to follow any direction that the Trustee
reasonably believes conflicts with any law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Holder, or that
may involve the Trustee in personal liability; provided that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of satisfactory indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the outstanding Notes (and, in the case of any rescission and
cancellation pursuant to Section 6.02(c) or a waiver pursuant to Section
6.04, Holders of at least 10% in the aggregate principal amount of the
Notes that do not own (and are not Affiliates of a beneficial owner of) an
equity interest of the Company (including but not limited to Capital Stock
of the Company)) do not give the Trustee a direction which, in the opinion
of the Trustee, is inconsistent with the request.
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The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal and premium, if any, or
interest on such Note on or after the respective due dates set forth in such
Note (including upon acceleration thereof) or the institution of any proceeding
with respect to this Indenture or any remedy hereunder, including without
limitation acceleration, by the Holders of a majority in principal amount of
outstanding Notes; provided that upon institution of any proceeding or exercise
of any remedy, such Holders provide the Trustee with prompt notice thereof.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in such Note, 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 in payment of principal or interest specified
in clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest at the rate set forth in Section 4.01 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 may 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, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any other
obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings 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, taxes, disbursements and advances of the Trustee, its
agent and counsel, and any other amounts due the Trustee under Section 7.07. The
Company's payment
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obligations under this Section 6.09 shall be secured in accordance with the
provisions of Section 7.07. 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 thereof, 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 or property pursuant to this
Article Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively; and
Fourth: to the Company,
or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as 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 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(2) 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, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) Notwithstanding anything to the contrary herein contained, 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:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) 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 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable
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grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any document reasonably 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 consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, or both, which shall conform to Sections 12.04 and 12.05. 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.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be authorized
or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice to
the Company, to examine the books, records and premises of the Company,
personally or by agent or attorney and to consult with the officers and
representatives of the Company, including the Company's accountants and
attorneys at the expense of the Company and shall incur no liability of
any kind by reason of such inquiry or investigation.
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(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, order or
direction of any of the Holders pursuant to the provisions of this
Indenture unless such Holders shall have offered to the Trustee security
or indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred by it in compliance with
such request, order or direction.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether
the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(i) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
(j) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder.
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
Subsidiary of the Company or their respective Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, and it shall not be accountable for the
Company's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Company in this Indenture or the Notes other than the
Trustee's certificate of authentication.
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SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 90 days after such Default or Event
of Default becomes known to the Trustee. Except in the case of a Default or an
Event of Default in payment of principal of, or interest on, any Note, including
an accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Net Proceeds Offer
Payment Date pursuant to a Net Proceeds Offer and, except in the case of a
failure to comply with Article Five, the Trustee may withhold the notice if and
so long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, the Trustee shall, to the extent
that any of the events described in TIA Section 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Holder a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Sections 313(b) and (c).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each stock exchange, if any, on
which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange and the Trustee shall comply with TIA Section
313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it in connection with the performance of its duties under
this Indenture. Such expenses shall include the reasonable fees and expenses of
the Trustee's agents and counsel.
Each of the Company and the Subsidiary Guarantors shall, jointly and
severally, indemnify the Trustee and its agents, employees, stockholders and
directors and officers for, and hold them harmless against, any loss, liability,
claim, damage or expense incurred by them except for such actions to the extent
determined to have been caused by their own negligence, bad faith or willful
misconduct, arising out of or in connection with the administration of this
trust including the reasonable costs and expenses of enforcing this Indenture
against
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the Company (including this Section 7.07) and defending themselves against any
claim or liability in connection with the exercise or performance of any of
their rights, powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate and may participate in the defense; provided that any
settlement of a claim shall be approved in writing by the Trustee.
Alternatively, the Trustee may at its option have separate counsel of its own
choosing and the Company shall pay the reasonable fees and expenses of such
counsel; provided that the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss or liability to the extent incurred by the Trustee through its
own negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(7) or (8) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee and may appoint a successor Trustee.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and 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 Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after that, the
retiring Trustee shall, upon payment of its charges hereunder, transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided in Section 7.07, 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. A successor Trustee shall
mail notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the 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 fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5). The Trustee (or, in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition. In
addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of such bank holding company, shall meet the
capital re-
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quirements of TIA Section 310(a)(2). The Trustee shall comply with TIA Section
310(b); provided, however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any indenture or indentures under which other securities,
or certificates of interest or participation in other securities, of the Company
are outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. The provisions of TIA Section 310 shall apply to the Company,
as obligor of the Notes.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option and at any time, elect to have
either paragraph (b) or paragraph (c) below be applied to the outstanding Notes
upon compliance with the applicable conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company and the Subsidiary Guarantors
shall be deemed to have been released and discharged from their obligations (and
all Liens on Collateral in connection with the issuance of the Notes) with
respect to the outstanding Notes 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 the Sections and matters
under this Indenture referred to in clauses (i) and (ii) below, and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned, except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in paragraph
(d) below and as more fully set forth in such paragraph payments in respect of
the principal of and interest on such Notes when such payments are due and (ii)
obligations listed in Section 8.03, subject to compliance with this Section
8.01. The Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below with
respect to the Notes.
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(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article Five, Sections 4.05
and 4.08, and Sections 4.10 through 4.24 with respect to the outstanding Notes
(including any such obligation that required that Collateral be provided by the
Company to secure the Notes) on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed to be not "outstanding" for the purpose 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(3) or 6.01(4),
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise under
paragraph (a) hereof of the option applicable to this paragraph (c), and subject
to the satisfaction of the conditions set forth in Section 8.03, Sections
6.01(3), 6.01(4), 6.01(5), 6.01(6), 6.01(9) and 6.01(10) shall not constitute
Events of Default.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the
Trustee, pursuant to an irrevocable trust and security agreement in form
and substance reasonably satisfactory to the Trustee, U.S. Legal Tender or
U.S. Government Obligations or a combination thereof in such amounts and
at such times as are sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of and
interest on the outstanding Notes to maturity or redemption; provided,
however, that the Trustee (or other qualifying trustee) shall have
received an irrevocable written order from the Company instructing the
Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or
the proceeds of such U.S. Government Obligations to said payments with
respect to the Notes to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default
from bankruptcy or insolvency events are concerned at any time in the
period ending on the 91st day after the date of deposit (other than a
Default or Event of Default resulting from the Incurrence of Indebtedness,
all or a portion of which will be used to defease the Notes concurrently
with such Incurrence, and the granting of any Lien securing such
Indebtedness);
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(3) Such deposit will not result in a Default under this Indenture
or a breach or violation of, or constitute a default under, this Indenture
(other than a Default or Event of Default resulting from the Incurrence of
Indebtedness, all or a portion of which will be used to defease the Notes
concurrently with such Incurrence, and the granting of any Lien securing
such Indebtedness) or any other material instrument or agreement to which
the Company or any of its Subsidiaries is a party or by which it or its
property is bound;
(4) (i) In the event the Company elects paragraph (b) hereof, the
Company shall deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the Trustee, to
the effect that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the Issue
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 state that, Holders of the Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to federal income tax
in the same amounts and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred or (ii)
in the event the Company elects paragraph (c) hereof, the Company shall
deliver to the Trustee an Opinion of Counsel in the United States, in form
and substance reasonably satisfactory to the Trustee, to the effect that
Holders of the Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and the defeasance
contemplated hereby and will be subject to federal income tax in the same
amounts and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of preferring the Holders over any other creditors
of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of
Counsel, reasonably satisfactory to the Trustee, to the effect that (A)
the trust funds will not be subject to the rights of holders of
Indebtedness of the Company other than the Notes and (B) assuming no
intervening bankruptcy of the Company between the date of deposit and the
91st day following the date of deposit and that no Holder of Notes is an
insider of the Company, after the 91st day following the date of deposit,
the trust funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting creditors' rights
generally; and
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(7) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by this
Section 8.01 have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel required by Section
8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if
all Notes not theretofore delivered to the Trustee for cancellation (1) have
become due and payable or (2) will become due and payable on the maturity date
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
In the event all or any portion of the Notes are to be
redeemed through such irrevocable trust, the Company must make arrangements
reasonably satisfactory to the Trustee, at the time of such deposit, for the
giving of the notice of such redemption or redemptions by the Trustee in the
name and at the expense of the Company.
SECTION 8.02. Satisfaction and Discharge.
In addition to the Company's rights under Section 8.01, the Company
may terminate all of its obligations under this Indenture (and all Liens on
Collateral in connection with the issuance of the Notes) (subject to Section
8.03) when:
(1) either (a) all Notes theretofore authenticated and delivered
(other than Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07 and Notes for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for
cancellation or (b) all such Notes not theretofore delivered to the
Trustee for cancellation have become due and payable by reason of mailing
of a notice of redemption or otherwise or will become due and payable
within one year and the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for that purpose
an amount of money sufficient to pay and discharge the entire Indebtedness
on the Notes not theretofore delivered to the Trustee for cancellation,
for principal of, premium, if any, and interest on the Notes to the date
of deposit (in the case of Notes that have become due and payable) or to
the stated maturity or redemption date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Notes at
maturity or redemption, as the case may be; and
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(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent specified herein relating to the satisfaction and discharge of
this Indenture have been complied with,
(the satisfaction of the conditions set forth in clauses (1) through (4) above
is referred to herein as a "Satisfaction and Discharge").
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and
of the Notes referred to in Section 8.01 or 8.02, the respective obligations of
the Company and the Trustee under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07,
2.10, 2.13, 4.01, 4.02 and 6.07, Article Seven and Sections 8.05, 8.06 and 8.07
shall survive until the Notes are no longer outstanding, and thereafter the
obligations of the Company and the Trustee and the Collateral Agent under
Sections 7.07, 8.05, 8.06 and 8.07 shall survive such satisfaction and
discharge. Nothing contained in this Article Eight shall abrogate any of the
obligations or duties of the Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of Section 8.01 or
8.02 have been satisfied, (ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company and (iii) the Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Moneys.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
Section 8.01. The Trustee shall apply the deposited U.S. Legal Tender or the
U.S. Government obligations, together with earnings thereon, through the Paying
Agent, in accordance with this Indenture and the terms of the irrevocable trust
agreement established pursuant to Section 8.01, to the payment of principal of
and interest on the 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 Company's request any U.S. Legal Tender or U.S. Government
Obligations held by it as provided in Section 8.01(d) which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, 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 the Company; Unclaimed Money.
Subject to Sections 7.07, 8.01 and 8.02, the Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess U.S. Legal
Tender or U.S. Government Obligations held by them at any time. The Trustee and
the Paying Agent will pay to the Company upon receipt by the Trustee or the
Paying Agent, as the case may be, of an Officers' Certificate any money held by
it for the payment of principal or interest that remains unclaimed for two years
after payment to the Holders is required; provided, however, that the Trustee
and the Paying Agent before being required to make any payment may, but need
not, at the expense of the Company cause to be published once in a newspaper of
general circulation in the City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that after a date
specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
money must look solely to the Company for payment as general creditors unless an
applicable abandoned property law designated another Person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 8.01 or 8.02 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 or 8.02 until such time as the Trustee or Paying Agent is permitted
to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with Section 8.01 or 8.02; provided, however, that if the Company has made any
payment of interest on or principal of any Notes because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Subsidiary Guarantors, when authorized by a
Board Resolution, and the Trustee together may amend or supplement this
Indenture, the Notes or
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the Subsidiary Guarantees and, with the consent of the Collateral Agent, the
Collateral Agreements, without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not in the opinion of the Trustee
adversely affect the rights of any Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes or Subsidiary Guarantees in
addition to or in place of certificated Notes or Subsidiary Guarantees;
(4) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(5) to comply with the provisions of the Depositary or the Trustee
with respect to the provisions of this Indenture and the Notes relating to
transfers and exchanges of Notes or beneficial interests in the Notes;
(6) to make any change that would provide any additional benefits or
rights to the Holders or that does not adversely affect the rights of any
Holder;
(7) to make such technical changes necessary to permit or cause the
exchange of a portion of any Notes not issued in a Registered Offering for
a portion of any OID Exchange Units, and the exchange of a portion of any
OID Exchange Units for a portion of any Notes not issued in a Registered
Offering, in each case, on similar terms as are provided for in the OID
Exchange provisions of Section 4.25(a) to the extent that such exchanges
are not then prohibited by applicable law or the rules, regulations and
policies of the SEC; or
(8) to provide for issuance of Exchange Notes hereunder;
provided that the Company has delivered to the Trustee an Opinion of Counsel and
an Officers' Certificate stating that such amendment or supplement complies with
the provisions of this Section 9.01.
Notwithstanding the foregoing, in formulating its opinion in regards
to Section 9.01(1), the Trustee shall be entitled to rely on such evidence as it
deems appropriate, including, without limitation, solely on an Opinion of
Counsel.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Subsidiary Guarantors,
when authorized by a Board Resolution, and the Trustee together, with the
written consent of the
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Holder or Holders of at least a majority in aggregate principal amount of the
outstanding Notes, may amend or supplement this Indenture, the Notes or the
Subsidiary Guarantees and, with the consent of the Collateral Agent, the
Collateral Agreements and the Intercreditor Agreement, without notice to any
other Holders. Subject to Sections 6.04 and 6.07, the Holder or Holders of a
majority in aggregate principal amount of the outstanding Notes may waive
compliance by the Company and the applicable Subsidiaries with any provision of
this Indenture, the Notes, the Collateral Agreements or the Intercreditor
Agreement without notice to any other Holder, except that no amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, shall,
without the consent of each Holder of each Note affected thereby:
(1) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver of any provision of this Indenture, the
Notes, the Collateral Agreements or the Intercreditor Agreement;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including default interest, on any Notes
(other than any advance notice requirement with respect to any
redemption);
(3) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption or reduce the redemption price therefor;
(4) make any Notes payable in money other than that stated in the
Notes;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce
such payment or permitting holders of a majority in principal amount of a
class of Notes to waive Defaults or Events of Default;
(6) after the Company's obligation to purchase Notes arises
thereunder, amend, change or modify in any material respect the obligation
of the Company to make and consummate a Change of Control Offer in the
event of a Change of Control or make and consummate a Net Proceeds Offer
with respect to any Asset Sale that has been consummated or, after such
Change of Control has occurred or such Asset Sale has been consummated,
modify any of the provisions or definitions with respect thereto;
(7) modify or change any provision of this Indenture or the related
definitions affecting the ranking of the Notes or any Subsidiary Guarantee
in a manner which adversely affects the Holders;
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(8) release any Subsidiary Guarantor that is a Significant
Subsidiary from any of its obligations under its Subsidiary Guarantee or
this Indenture otherwise than in accordance with the terms of this
Indenture; or
(9) release all or substantially all of the Collateral otherwise
than in accordance with the terms of this Indenture and the Collateral
Agreements.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders 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 supplemental indenture.
SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture, the Notes
or the Subsidiary Guarantees or of the Collateral Agreements or the
Intercreditor Agreement shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder 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. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of clauses (1)
through (9) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of and interest
on a Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee may require the Holder of the Note to deliver the Note to the
Trustee. The Trustee at the written direction of the Company may place an
appropriate notation on the Note about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Note shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms. Any such notation or exchange shall be
made at the sole cost and expense of the Company.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee's own rights, duties or immunities under this Indenture. The
Trustee shall be provided with, and shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate each stating that the execution
of any amendment, supplement or waiver authorized pursuant to this Article Nine
is authorized or permitted by this Indenture. Such Opinion of Counsel shall not
be an expense of the Trustee.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Guarantee.
Each Subsidiary Guarantor hereby unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein as a "Subsidiary
Guarantee"), to each of the Holders and to the Trustee and their respective
successors and assigns that (i) the principal of and interest on the Notes will
be promptly paid in full when due, subject to any applicable
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grace period, whether at maturity, upon redemption, by acceleration or
otherwise, and interest on the overdue principal, if any, and interest on any
interest, if any, to the extent lawful, of the Notes and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any
of the Notes or of any such other obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise, subject, however, in the case of clauses (i) and (ii)
above, to the limitations set forth in Section 10.03. Each Subsidiary Guarantor
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any of the Holders with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes, this Indenture
and in the Subsidiary Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company, any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Subsidiary Guarantor, any amount paid by the Company or any
Subsidiary Guarantor to the Trustee or such Holder, the Subsidiary Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor further agrees that, as between each Subsidiary
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of this Subsidiary Guarantee, and (y)
in the event of any acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forthwith become due and
payable by each Subsidiary Guarantor for the purpose of this Subsidiary
Guarantee.
SECTION 10.02. Release of a Subsidiary Guarantor.
In the event (i) all or substantially all of the assets, or all of
the Capital Stock, of a Subsidiary Guarantor is sold by the Company and such
transaction complies with Section 4.16, or (ii) of the consolidation or merger
of a Subsidiary Guarantor with or into any Person in compliance with Section
10.04, or (iii) of any transaction complying with the provisions relating to the
release of a Subsidiary Guarantee under Section 4.14(b), or (iv) of the
designation of any Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with this Indenture, the Subsidiary Guarantee of such Subsidiary
Guarantor will be released. Furthermore, upon the occurrence of Legal
Defeasance, Covenant Defeasance or Satisfaction and
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Discharge in accordance with Article Eight, each Subsidiary Guarantor shall be
released from its Subsidiary Guarantee.
The Trustee shall promptly deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate certifying as to the compliance with this Section
10.02. Any Subsidiary Guarantor not so released remains liable for the full
amount of principal of and interest on the Notes as provided in this Article
Ten.
SECTION 10.03. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each of the
Holders hereby confirms that it is the intention of all such parties that the
guarantee by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under the Subsidiary Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Subsidiary Guarantee or pursuant to Section 10.05, result in
the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee not
constituting such fraudulent transfer or conveyance.
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc., on
Certain Terms.
No Subsidiary Guarantor (other than any Subsidiary Guarantor whose
Subsidiary Guarantee is to be released in accordance with the terms of the
Subsidiary Guarantee and this Indenture in connection with any transaction
complying with Section 4.16 or the provisions relating to the release of a
Subsidiary Guarantee under Section 4.14) will, and the Company will not cause or
permit any Subsidiary Guarantor to, consolidate with or merge with or into any
Person other than the Company or any other Subsidiary Guarantor unless:
(1) the entity formed by or surviving any such consolidation or
merger (if other than the Subsidiary Guarantor) or to which such sale,
lease, conveyance or other disposition shall have been made is a
corporation organized and existing under the laws of the United States or
any State thereof or the District of Columbia;
(2) such entity assumes (a) by supplemental indenture all of the
obligations of the Subsidiary Guarantor on the Subsidiary Guarantee and
(b) in the case where such consolidation or merger involved Laundry Corp.
and Laundry Corp. was not the
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surviving entity, by amendment, supplement or other instrument (in form
and substance reasonably satisfactory to the Trustee and the Collateral
Agent), executed and delivered to the Trustee and the Collateral Agent,
all Obligations of Laundry Corp. under the Collateral Agreements, and in
connection therewith shall cause such instruments to be filed and recorded
in such jurisdictions and take such other actions as may be required by
applicable law to perfect or continue the perfection of the Lien created
under the Collateral Agreements on the Collateral owned by or transferred
to such surviving entity;
(3) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
(4) immediately after giving effect to such transaction and the use
of any net proceeds therefrom on a pro forma basis, the Company could
satisfy the provisions of Section 5.01(a)(ii).
Any merger or consolidation of (i) a Subsidiary Guarantor with and
into the Company (with the Company being the surviving entity) or another
Subsidiary Guarantor or (ii) a Subsidiary Guarantor or the Company with an
Affiliate organized solely for the purpose of reincorporating such Subsidiary
Guarantor or the Company in another jurisdiction in the United States or any
state thereof or the District of Columbia need only comply with (A) clause
(a)(iv) of Section 5.01, and (B) in the case of a merger or consolidation
involving (x) the Company as described in clause (ii) of this paragraph, clause
(a)(i)(2)(y) of Section 5.01 and (y) a Subsidiary Guarantor as described in
clause (ii) of this paragraph, clause (2) of this Section 10.04.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that each
Subsidiary Guarantor that makes a payment or distribution under a Subsidiary
Guarantee shall be entitled to a pro rata contribution from each other
Subsidiary Guarantor hereunder based on the net assets of each other Subsidiary
Guarantor. The preceding sentence shall in no way affect the rights of the
Holders of Notes to the benefits of this Indenture, the Notes or the Subsidiary
Guarantees.
SECTION 10.06. Waiver of Subrogation.
Each Subsidiary Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
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SECTION 10.07. Evidence of Guarantee.
To evidence their guarantees to the Holders set forth in this
Article Ten, each of the Subsidiary Guarantors hereby agrees to execute the
notation of Subsidiary Guarantee in substantially the form included in the Notes
attached hereto as Exhibit A and B. Each such notation of Subsidiary Guarantee
shall be signed on behalf of each Subsidiary Guarantor by an Officer or an
assistant Secretary.
Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer or assistant Secretary whose signature is on this
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.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantors.
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor covenants that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law that would
prohibit or forgive such Subsidiary Guarantor from performing its Subsidiary
Guarantee as contemplated herein, wherever enacted, now or at any time hereafter
in force, or which may affect the covenants or the performance of this
Indenture; and each Subsidiary Guarantor hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
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ARTICLE ELEVEN
COLLATERAL AND COLLATERAL AGREEMENTS
SECTION 11.01. Approval of Collateral Agreements; Representations
and Warranties; No Preference Among Holders.
(a) The due and punctual payment of the principal of and premium (if
any) and interest on the Notes when and as the same shall be due and payable,
whether on an interest payment date, at maturity, by acceleration, repurchase,
redemption, special redemption or otherwise, and interest on the overdue
principal of and premium (if any) and interest on the Notes and performance of
all other Obligations of the Company and Laundry Corp. to the Collateral Agent,
the Holders, the Collateral Agent and the Trustee under this Indenture, the
Notes and the Subsidiary Guarantees of Laundry Corp. according to the terms
hereunder or thereunder, shall be secured during any Secured Period by Note
Liens on the Collateral to the extent and with the effect provided herein and in
the Collateral Agreements, including any subsequent mortgage required pursuant
to the terms of this Indenture.
(b) By its acceptance of its Notes and the Subsidiary Guarantees, if
any, each Holder, the Collateral Agent and the Trustee consents and agrees (i)
upon the occurrence of the Merger Event (x) the Lien on the assets of the
surviving entity (other than the Post-Merger Event Collateral) securing the
Obligations represented thereby shall be released and (y) the only security for
the Notes following the Merger Event will be second priority lien on the Post
Merger Event Collateral to the extent a Secured Period is in effect and (ii) to
the substance of the terms and provisions of the Collateral Agreements in the
forms attached hereto (including, without limitation, the provisions providing
for foreclosure and release of Collateral) as the same may be in effect on the
Issue Date or may be amended from time to time in accordance with their terms
(with such changes as are required by applicable Legal Requirements in the
relevant jurisdiction or jurisdictions on any such date). Each Holder and the
Trustee appoints the Collateral Agent to act as its collateral agent with
respect to the Collateral and further authorizes and directs the Collateral
Agent to enter into the Deposit Agreement and each Collateral Agreement and to
perform its obligations and exercise its rights thereunder in accordance
therewith.
(c) The Company represents, covenants and agrees that it and Laundry
Corp. have, and shall at all times have, full right, power and lawful authority
to grant, bargain, sell, release, convey, hypothecate, assign, mortgage, pledge,
transfer and confirm the property constituting the Collateral pursuant to the
Collateral Agreements to which such Persons are party, free and clear of all
Liens other than Permitted Liens. The Company agrees that it shall, and shall
cause Laundry Corp. to, (i) forever warrant and defend the title to the same
against the claims of all Persons (except as to Permitted Liens) and (ii)
execute, acknowledge and deliver to the Collateral Agent such further
assignments, transfers, assurances or other
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instruments as the Collateral Agent may reasonably require and perform all such
acts as may be required by the Collateral Agent to confirm to the Collateral
Agent such Lien on the Collateral, or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
the Collateral Agent, the Trustee and the Holders under the Collateral
Agreements, this Indenture, the Notes and the Subsidiary Guarantee of Laundry
Corp. according to the intent and purposes herein and therein expressed. The
Company further represents, covenants and agrees that each Collateral Agreement,
when delivered, registered, recorded and filed as provided in Section 11.02(c),
will create valid and perfected Liens (subject to Permitted Liens) on the
Collateral subject thereto.
(d) As among the Holders, the Collateral as constituted from time to
time shall be held for the equal and ratable benefit of the Holders without
preference, priority or distinction of any Holder over any other Holder by
reason of differences in time of issuance of the Notes held by such Holders,
sale or otherwise, as security for the Obligations of the Company and Laundry
Corp., to the Collateral Agent, the Holders and the Trustee under this
Indenture, the Notes and the Subsidiary Guarantee of Laundry Corp.
SECTION 11.02. Documentation and Recording; Opinions of Counsel;
Further Assurances.
(a) The Company and Laundry Corp. shall execute and comply with the
terms of each Collateral Agreement.
(b) As promptly as practicable following the occurrence of the
Merger Event, the Company shall deliver or cause to be delivered to the Deposit
Agent (with a copy to the Trustee and the Collateral Agent):
(i) an Officers' Certificate stating that the Merger Event has
occurred, and confirming that the Collateral Agreements held by the
Deposit Agent under the Deposit Agreement are adequate, when recorded,
registered or filed in the jurisdictions specified in such Officers'
Certificate, to create and perfect a Post-Merger Event Lien in accordance
with the requirements of the Collateral Agreements, and
(ii) an Opinion of Counsel setting forth, in the opinion of such
counsel, all recordings, filings and other actions contemplated by such
Collateral Agreements necessary to create and perfect such Post-Merger
Event Lien in connection therewith.
(c) As promptly as practicable after the receipt by the Collateral
Agent of the documentation required by paragraph (b) of this Section 11.02 (but
in no event later than three Business Days thereafter), the Company shall
confirm and reaffirm the grant of the valid and enforceable Lien on the Post
Merger Event Collateral and its obligations under the Collateral Agreements. As
promptly as practicable following the occurrence of a Merger Event (but in no
event later than three Business Days thereafter), the Company shall cause
(through
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the Deposit Agent or otherwise), at its own expense, this Indenture and each
Collateral Agreement, and all amendments or supplements thereto, to be
registered, recorded and filed in such manner and in such place or places, if
any, as may be necessary or reasonably required by the Collateral Agent in order
to perfect or continue the perfection of such Lien (subject to Permitted Liens)
in accordance with the requirements of the Collateral Agreements. From time to
time each of the Company and Laundry Corp. shall cause, at the Company's
expense, this Indenture and each Collateral Agreement, and all amendments or
supplements thereto, to be re-recorded and/or re-filed and/or renewed in such
manner and in such place or places, if any, as may be necessary or reasonably
required by the Collateral Agent in order to preserve, protect and maintain the
validity, enforceability and perfection of such Lien (subject to Permitted
Liens) at all times in accordance with the requirements of the Collateral
Agreements. Without limiting its obligations under the Deposit Agreement, the
Company shall pay all recording, stamp, intangible or other similar taxes,
charges or fees required to be paid to any Authority under applicable Legal
Requirements in connection with the execution, delivery, recordation, filing,
perfection or enforcement of any of the Collateral Agreements.
(d) The Company shall deliver or cause to be delivered to the
Collateral Agent and the Trustee on or immediately prior to each anniversary of
the Issue Date, an Opinion or Opinions of Counsel, dated as of such date, either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, registering, filing, re-recording, re-registering and
re-filing of (x) this Indenture, the Collateral Agreements and all supplemental
indentures and amendments thereto, and (y) financing statements, continuation
statements, fixture filings or other instruments of further assurance, as is
necessary to maintain the Lien created by each such Collateral Agreement and
reciting the details of such action or referring to prior Opinions of Counsel in
which such details are given, and stating that all financing statements and
continuation statements have been executed and filed that are necessary to
perfect such Lien, or stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien.
(e) Concurrently with delivery of the Opinion or Opinions of Counsel
referred to in paragraph (d) of this Section 11.02, the Company shall cause this
Indenture and each Collateral Agreement, and all amendments or supplements
thereto, to be registered, recorded and filed and/or re-recorded and/or re-filed
and/or renewed in such manner and in such place or places, if any, as may be
necessary or reasonably required by the Collateral Agent in order to perfect the
Liens.
(f) If, at any time, the Collateral Agreements do not create the
Liens required by or otherwise do not comply with this Section 11.02, the
Company and Laundry Corp. shall, as soon as reasonably practicable and from time
to time, at the Company's expense, (i) execute and deliver, and file and record
with all applicable Authorities, such additional Collateral Agreements, (ii) use
its reasonable best efforts to obtain any approvals or consents and remove any
restrictions or encumbrances and (iii) take such other steps, as in
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each case may be necessary such that all Collateral is at all times subject to
the Liens required by and otherwise complies with this Section 11.02.
SECTION 11.03. Possession of the Collateral.
(a) The Company may possess, manage, operate and enjoy the
Collateral in accordance with the terms of this Indenture, the Notes, the
Subsidiary Guarantees, if any, and the Collateral Agreements and the Credit
Agreement.
(b) Subject to any continuing requirements of the Intercreditor
Agreement, all amounts received by the Collateral Agent as proceeds of any part
of the Collateral (including Net Cash Proceeds in the case of an Asset Sale) and
all amounts of money, securities, letters of credit and other evidences of
indebtedness deposited with or held by the Collateral Agent in accordance with
this Indenture and any Collateral Agreement shall be held by the Collateral
Agent as security for the Obligations of the Company and Laundry Corp. under
this Indenture, the Notes, the Subsidiary Guarantees, if any, and the Collateral
Agreements until applied in accordance with the terms of this Indenture, the
Collateral Agreements or the Credit Agreement, as applicable.
SECTION 11.04. Suits To Protect the Collateral.
Subject to any continuing requirements of the Intercreditor
Agreement, the Collateral Agent shall have power to institute in its name and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts which may be unlawful or in violation
of this Indenture or any of the Collateral Agreements, and such suits and
proceedings as the Collateral Agent may deem expedient to preserve or protect
its interests and the interests of itself, the Trustee and the Holders in the
Collateral and in the principal, interest, issues, profits, rents, revenues and
other income arising therefrom, including power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid, if the enforcement of, or compliance with, such enactment,
rule or order would impair the security hereunder or under any of the Collateral
Agreements, or be prejudicial to the interests of the Collateral Agent, the
Holders or the Trustee.
SECTION 11.05. Release of Liens.
(a) The Collateral Agent shall not at any time release Collateral
from the Liens created by this Indenture and the Collateral Agreements unless
such release is in accordance with the provisions of this Indenture and the
Collateral Agreements.
(b) The release of any Collateral from the Lien of the Collateral
Agreements shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and
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the Collateral Agreements. To the extent applicable, the Company shall comply
with TIA Section 314(c) and Section 314(d) relating to the release of property
from the Lien of the Collateral Agreements and relating to the substitution
therefor of any property to be subjected to the Lien of the Collateral
Agreements. Any certificate or opinion required by TIA Section 314(c) or Section
314(d) may be made by an Officer of the Company, except in cases where TIA
Section 314(c) or Section 314(d) requires that such certificate or opinion be
made by an independent person, which person shall be an independent engineer,
appraiser or other expert selected by the Company.
SECTION 11.06. Specified Releases of Collateral.
(a) The Liens created by the Collateral Agreements shall
automatically be released:
(i) upon payment in full of all principal, premium, if any, and
interest on the Notes and of all other obligations for the payment of
money due and owing to the Collateral Agent, the Trustee or the Holders
under this Indenture, the Notes, the Subsidiary Guarantees, if any, and
the Collateral Agreements;
(ii) upon a Satisfaction and Discharge in accordance with Article
Eight;
(iii) upon a Legal Defeasance or Covenant Defeasance in accordance
with Article Eight; or
(iv) on the date on which all Liens (whether on Collateral or other
assets) are terminated or released under the Credit Agreement;
provided, however, that in the case of clause (iv) above, if the Credit
Agreement is subsequently secured by a Lien on assets that would constitute
Collateral at such time, the Notes and the Subsidiary Guarantee of Laundry Corp.
will then be secured again by a Lien on such Collateral, subject to the
provisions of the security agreements, the Intercreditor Agreement and other
documents relating to the Credit Agreement, to the same extent provided under
the Collateral Agreements. Upon payment specified in clause (i) above or upon
delivery by the Company to the Collateral Agent of an Officers' Certificate and
an Opinion of Counsel, each to the effect that at least one of such conditions
precedent has been complied with (and which may be the same Officers'
Certificate and Opinion of Counsel required by Article Eight), together with
such documentation, if any, as may be required by the TIA (including, without
limitation, TIA Section 314(c) or Section 314(d)) or reasonably required by the
Collateral Agent prior to the release of such Collateral, the Collateral Agent
shall forthwith take all action that is necessary or reasonably requested by the
Company (in each case at the expense of the Company) to release and reconvey to
the Company without recourse, representation or warranty of any kind all of the
Collateral, and shall deliver such Collateral in its possession to the Company
and shall execute and deliver to the Company releases and satisfactions, in
recordable or fileable form, to the extent reasonably requested by the Company.
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(b) In addition to paragraph (a) above, the Liens on the Collateral
will be automatically released with respect to any asset constituting
Collateral:
(i) that is sold or otherwise disposed of by the Company or Laundry
Corp. to a Person other than the Company or Laundry Corp. in a transaction
not prohibited by this Indenture at the time of such sale or disposition;
or
(ii) other than as described in paragraph (a) above, that is
released from its Lien in accordance with the Credit Agreement and in
accordance with the Intercreditor Agreement (whether pursuant to a
foreclosure or other exercise of remedies by the secured parties under the
Credit Agreement or otherwise); or
(iii) to the extent permitted by the Credit Agreement, if the
Company or Laundry Corp. provides substitute assets with at least an
equivalent fair value, as determined in good faith by the Board of
Directors of the Company, and such assets are made subject to the Lien in
accordance with the Collateral Agreements.
SECTION 11.07. Sharing of Collateral.
Subject to the terms of this Indenture and the Collateral
Agreements, any Collateral securing this Indenture, the Notes and the Subsidiary
Guarantee of Laundry Corp., if any, may be shared by any other Indebtedness of
the Company and Laundry Corp., including Additional Notes issued under this
Indenture, incurred after the Issue Date so long as such Indebtedness is
incurred in accordance with this Indenture, including Section 4.12, and the Lien
thereon constitutes a Permitted Lien.
SECTION 11.08. Sufficiency of Release.
All purchasers and grantees of any property or rights purporting to
be released in accordance herewith shall be entitled to rely upon any release
executed by the Collateral Agent hereunder as sufficient for the purpose of this
Indenture and as constituting a good and valid release of the property therein
described from the Lien of this Indenture and of the Collateral Agreements.
SECTION 11.09. Actions by the Collateral Agent.
Subject to the provisions of the Collateral Agreements and Article
Eight, the Collateral Agent may in its sole discretion and without the consent
of the Trustee or the Holders take all actions it deems necessary or appropriate
in order to (i) enforce any of the terms of the Collateral Agreements and (ii)
collect and receive all amounts payable in respect of the obligations of the
Company and any Restricted Subsidiaries under the Collateral Agreements and this
Indenture. The Collateral Agent shall have the power to institute and maintain
such suits and proceedings as it may deem expedient in order to prevent any
impairment of the
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Collateral by any act that may be unlawful or in violation of this Indenture or
the Collateral Agreements, and such suits and proceedings as the Collateral
Agent may deem expedient to preserve or protect its interests and those of the
Trustee and the Holders in the Collateral. No duty beyond that set forth in
Section 7.01 is imposed on the Collateral Agent pursuant to this Section 11.09.
Each Holder hereby authorizes the Collateral Agent and the Trustee to enter into
the Collateral Agreements and the Intercreditor Agreement.
SECTION 11.10. Intercreditor Agreement.
This Article Eleven and the Collateral Agreements are subject to the
terms, limitations and conditions set forth in the Intercreditor Agreement.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 12.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company:
Coinmach Service Corp.
000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
Facsimile Number: (516) [349-9125]
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if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Administration
Facsimile Number: (000) 000-0000
Each of the Company and the Trustee by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is acknowledged, if faxed; and five (5) calendar days
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to
such Holder by first class mail or other equivalent means at such Holder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given to such Holder if so mailed within the time prescribed.
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, it is duly
given, whether or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
upon request:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent to be performed by the Company, if any, provided
for in this Indenture relating to the proposed action have been satisfied;
and
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(2) an Opinion of Counsel stating that, in the opinion of such
counsel, subject to customary assumptions and exclusions, all such
conditions precedent to be performed by the Company, if any, provided for
in this Indenture relating to the proposed action have been satisfied.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided that
an Opinion of Counsel may rely on an Officers' Certificate or a
certificate of public officials with respect to matters of fact.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.07. Legal Holidays.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in New York, New York or at such place of payment are not required
to be open. If a payment date is a Legal Holiday at any particular place of
payment, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
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SECTION 12.08. Governing Law.
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
A past, present or future director, officer, employee, incorporator
or stockholder, as such, of the Company or of the Trustee shall not have any
liability for any obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration of the Notes.
SECTION 12.11. Successors.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture, the Notes, and the Subsidiary Guarantees shall bind its successors.
All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 12.13. Severability.
In case any one or more of the provisions in this Indenture, the
Notes or in the Subsidiary Guarantees shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
-109-
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 12.14. Force Majeure.
In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including,
without limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
[Signature page follows.]
110
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
COINMACH SERVICE CORP.
By:
------------------------------------
Name:
Title:
COINMACH LAUNDRY CORPORATION,
as a Subsidiary Guarantor
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee and
Collateral Agent
By:
------------------------------------
Name:
Title:
S-1
EXHIBIT A
[FORM OF UNRESTRICTED NOTE]
[THE COMPANY MAY SUBSEQUENTLY ISSUE NOTES THAT ARE IDENTICAL IN ALL MATERIAL
RESPECTS TO THIS NOTE BUT HAVE ORIGINAL ISSUE DISCOUNT. IN SUCH CASE, THE HOLDER
OF THIS NOTE WILL BE DEEMED TO HAVE EXCHANGED A PORTION OF ITS NOTES OF THE
COMPANY FOR SUCH NEWLY ISSUED NOTES WITH ORIGINAL ISSUE DISCOUNT. THE AGGREGATE
PRINCIPAL AMOUNT OF NOTES OWNED BY SUCH HOLDER, HOWEVER, WILL NOT CHANGE AS A
RESULT OF SUCH DEEMED EXCHANGE. WITH RESPECT TO SUCH NEWLY ISSUED NOTES WITH
ORIGINAL ISSUE DISCOUNT, A HOLDER MAY OBTAIN THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE DATE, THE ISSUE PRICE AND THE YIELD TO MATURITY BY
SUBMITTING A WRITTEN REQUEST TO THE COMPANY.]
CUSIP No.:
COINMACH SERVICE CORP.
[ ]% SENIOR SECURED NOTE DUE 2024
No. $
COINMACH SERVICE CORP., a Delaware corporation (the "Company," which
term includes any successor entity), for value received promises to pay to or
registered assigns, the principal sum of [ ] Dollars on [ ], 2024.
Interest Payment Dates: March 1, June 1, September 1 and December 1.
Record Dates: February 25, May 25, August 25 and November 25.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
COINMACH SERVICE CORP.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Dated:
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Certificate of Authentication
This is one of the [ ]% Senior Secured Notes due 2024 referred to
in the within-mentioned Indenture.
[ ], as Trustee
Dated:____________________________________ By: _________________________________
___________________________________________________________ Authorized Signatory
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(REVERSE OF UNRESTRICTED NOTE)
[ ]% Senior Secured Note due 2024
1. Interest. COINMACH SERVICE CORP., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid on this Note or if no interest has
been paid, from [ ], 20[ ]. The Company will pay interest quarterly in
arrears on each Interest Payment Date, commencing [ ], 20[ ]. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
2. Method of Payment. The Company shall pay interest on the Notes to
the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company shall 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 ("U.S. Legal Tender"). However, the Company may pay principal and
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture. The Company issued the Notes and the Subsidiary
Guarantors issued the Subsidiary Guarantees under an Indenture, dated as of
November [ ], 2004 (the "Indenture"), between the Company, the Subsidiary
Guarantors, the Trustee and the Collateral Agent. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and the TIA for a statement of them. The Notes are general secured
obligations of the Company. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
5. Optional Redemption; Sinking Fund.
(a) Make-Whole Redemption. At any time prior to [ ], 2009, the
Company may, at its option, redeem all or part of the Notes upon not less than
30 nor more
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than 60 days' notice, at a redemption price equal to the sum of the present
values of the redemption price of such Notes at the first optional Redemption
Date described below and all required interest payments, excluding accrued but
unpaid interest, due on such Notes through such first optional Redemption Date,
discounted to the date of such redemption on a quarterly basis, assuming 360-day
years consisting of twelve 30-day months, at the Treasury Rate plus 50 basis
points, plus accrued and unpaid interest to the Redemption Date, subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date.
(b) Redemption at Scheduled Prices. On or after [ ], 2009, the
Company may, at its option, redeem all or part of the Notes, 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, on the Notes redeemed, to the applicable Redemption Date, if redeemed
during the twelve-month period beginning on [ ] of the years indicated below:
Year Percentage
2009............................................. [ ]%
2010............................................. [ ]%
2011............................................. [ ]%
2012 and thereafter.............................. 100.000%
(c) Tax Redemption. At any time, the Company may, at its option,
redeem all, but not part, of the Notes, upon not less than 30 nor more than 60
days' notice, at a redemption price equal to 100% of the principal amount of the
Notes plus accrued and unpaid interest to the Redemption Date if, for U.S.
federal income tax purposes, the Company is not, or would not be, permitted to
deduct the interest payable on the Notes from its income.
(d) Sinking Fund. As a mandatory sinking fund (the "Sinking Fund"),
the Company will redeem on [ ] of each of the years 2016 to 2019, inclusive,
Notes in an aggregate principal amount equal to 10% of the aggregate principal
amount of the Notes originally issued under the Indenture at a redemption price
equal to 100% of the aggregate principal amount of the Notes to be redeemed,
together with accrued and unpaid interest to the Redemption Date. The Company
may, at its option, credit against the aggregate principal amount of the Notes
to be redeemed in connection with any Sinking Fund redemption (to the extent not
previously credited) the aggregate principal amount of Notes:
(i) previously or contemporaneously redeemed by it pursuant to the
provisions described under paragraph (a), (b) or (c) (or
previously or contemporaneously called for redemption pursuant
to such provisions so long as the Redemption Price therefore
shall have been deposited in trust for that purpose in
accordance with the Indenture); and
A-5
(ii) previously or contemporaneously acquired by it (and delivered
to the Trustee for cancellation), whether by privately
negotiated transactions, by way of tender offers (including
Change of Control Offers and Net Proceeds Offers) or
otherwise,
in either case described in clauses (i) and (ii) above other than through
mandatory Sinking Fund redemptions; provided, however, that the Company may only
credit purchases of separate notes pursuant to clause (ii) above to the extent
that, as of the Business Day immediately preceding the date on which a Sinking
Fund redemption is required, such purchases did not result in the aggregate
principal amount of Notes underlying IDSs exceeding 90% of the aggregate
principal amount of all Notes outstanding on such date.
6. Notice of Redemption. Notice of redemption will 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 such Holder's registered address.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the Paying
Agent for redemption on such Redemption Date, then, unless the Company defaults
in the payment of such Redemption Price plus accrued interest, if any, the Notes
called for redemption will cease to bear interest from and after such Redemption
Date and the only right of the Holders of such Notes will be to receive payment
of the Redemption Price plus accrued interest, if any.
7. Offers to Purchase. Sections 4.15 and 4.16 of the Indenture
provide that, after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control (as defined in the Indenture), and subject
to further limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
8. Transfer; Exchange. The Notes are in registered form without
coupons. A Holder shall register the transfer of or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register the
transfer of or exchange of any Notes or portions thereof selected for redemption
(except, in the case of a Note to be redeemed in part, the portion of the Note
not to be redeemed) or to transfer or exchange any Notes for a period of 15 days
prior to a selection of Notes to be redeemed.
9. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back
A-6
to the Company. After that, all liability of the Trustee and such Paying Agent
with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the
Indenture, the Notes and the Collateral Agreements (including certain covenants,
but excluding its obligation to pay the principal of and interest on the Notes).
12. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture, the Notes or the Subsidiary Guarantees may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, and any existing
Default or Event of Default or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture, the Notes or
the Subsidiary Guarantees to, among other things, cure any ambiguity, defect or
inconsistency, provide for certificated Notes or Subsidiary Guarantees in
addition to or in place of uncertificated Notes or Subsidiary Guarantees, or
comply with Article Five of the Indenture or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
13. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness or Liens, make payments in respect of its
Capital Stock or certain Indebtedness, enter into transactions with Affiliates,
create dividend or other payment restrictions affecting Restricted Subsidiaries,
merge or consolidate with any other Person, sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets or adopt a
plan of liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
14. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Subsidiary Guarantees, the Collateral Agreements, if applicable, and the
Indenture, the predecessor will be released from those obligations.
15. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity reasonably satisfactory to it. The
A-7
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
16. Trustee and Collateral Agent Dealings with Company. Each of the
Trustee and the Collateral Agent under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee or the Collateral Agent.
17. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder, as such, of the Company shall
have any liability for any obligation of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note waives
and releases all such liability. Such waiver and release are part of the
consideration of this Note.
18. Subsidiary Guarantees. Payment of principal and interest
(including interest on overdue principal and overdue interest, if lawful) is
unconditionally guaranteed, jointly and severally, by each of the Subsidiary
Guarantors.
19. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
20. Governing Law. The Laws of the State of New York shall govern
this Note, the Subsidiary Guarantees and the Indenture, without regard to
principles of conflict of laws.
21. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note 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).
22. 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 as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
Coinmach Service Corp., 000 Xxxxxxxxx Xxxx., Xxxxx 00, Xxxxxxxxx, Xxx Xxxx
00000, Attn: Chief Executive Officer.
A-8
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: _____________________________ Signed: ___________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ___________________________________________________________
A-9
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$___________________
Dated: _________________________________________________________________________
NOTICE: The signature on this assignment
must correspond with the name as
it appears upon the face of the
within Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed by
the endorser's bank or broker.
Signature Guarantee: ___________________________________________________________
A-10
FORM OF SUBSIDIARY GUARANTEE
[Name of Subsidiary Guarantor] and its successors under the
Indenture, jointly and severally with any other Subsidiary Guarantors, hereby
irrevocably and unconditionally guarantee, on a senior [secured]2 [unsecured]3
basis, (i) the due and punctual payment of the principal of, premium, if any,
and interest on the Notes, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal of and
interest, if any, on the Notes, to the extent lawful, and the due and punctual
performance of all other obligations of Coinmach Service Corp. (the "Company")
to the Holders or the Trustee all in accordance with the terms set forth in
Article Ten of the Indenture, (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 stated maturity, by acceleration or otherwise
and (iii) have agreed to pay any and all costs and expenses (including
reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing
any rights under this Subsidiary Guarantee. Capitalized terms used herein have
the meanings assigned to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as
such, past, present or future, of [name of Subsidiary Guarantor] shall have any
personal liability under this Subsidiary Guarantee by reason of his or its
status as such stockholder, employee, officer, director or incorporator. Each
Holder by accepting this Subsidiary Guarantee waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes and Subsidiary Guarantees. This Subsidiary Guarantee shall be binding
upon [name of Subsidiary Guarantor] and its successors and assigns 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 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.
--------------
(a) Insert if Subsidiary Guarantor is Coinmach Laundry Corporation.
(b) Insert if Subsidiary Guarantor is not Coinmach Laundry Corporation.
A-11
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.
[NAME OF SUBSIDIARY GUARANTOR]
By:___________________________________
Name:
Title:
A-12
EXHIBIT B
[FORM OF RESTRICTED NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO COINMACH SERVICE CORP.
OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR"))
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A
U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE),
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF COINMACH SERVICE CORP.
SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (E) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS NOTE. IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND COINMACH CORPORATION
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
B-1
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
[THE COMPANY MAY SUBSEQUENTLY ISSUE NOTES THAT ARE IDENTICAL IN ALL MATERIAL
RESPECTS TO THIS NOTE BUT HAVE ORIGINAL ISSUE DISCOUNT. IN SUCH CASE, THE HOLDER
OF THIS NOTE WILL BE DEEMED TO HAVE EXCHANGED A PORTION OF ITS NOTES OF THE
COMPANY FOR SUCH NEWLY ISSUED NOTES WITH ORIGINAL ISSUE DISCOUNT. THE AGGREGATE
PRINCIPAL AMOUNT OF NOTES OWNED BY SUCH HOLDER, HOWEVER, WILL NOT CHANGE AS A
RESULT OF SUCH DEEMED EXCHANGE. WITH RESPECT TO SUCH NEWLY ISSUED NOTES WITH
ORIGINAL ISSUE DISCOUNT, A HOLDER MAY OBTAIN THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, THE ISSUE DATE, THE ISSUE PRICE AND THE YIELD TO MATURITY BY
SUBMITTING A WRITTEN REQUEST TO THE COMPANY.]
CUSIP No.:
COINMACH SERVICE CORP.
[ ]% SENIOR SECURED NOTE DUE 2024
No. __________________________________________________________________ $
COINMACH SERVICE CORP., a Delaware corporation (the "Company," which
term includes any successor entity), for value received promises to pay to or
registered assigns, the principal sum of [ ] Dollars on [ ], 2024.
Interest Payment Dates: March 1, June 1, September 1 and December 1.
Record Dates: February 25, May 25, August 25 and November 25.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
B-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
COINMACH SERVICE CORP.
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
Dated: _____________________
B-3
Certificate of Authentication
This is one of the [ ]% Senior Secured Notes due 2024 referred to in
the within-mentioned Indenture.
[ ], as Trustee
Dated: _______________________________________ By: ___________________________
______________________________________________ Authorized Signatory
B-4
(REVERSE OF RESTRICTED NOTE)
[ ]% Senior Secured Note due 2024
1. Interest. COINMACH SERVICE CORP., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid on this Note or if no interest has
been paid, from [ ], 20[ ]. The Company will pay interest quarterly in
arrears on each Interest Payment Date, commencing [ ], 20[ ]. Interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
2. Method of Payment. The Company shall pay interest on the Notes to
the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company shall 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 ("U.S. Legal Tender"). However, the Company may pay principal and
interest by its check payable in such U.S. Legal Tender. The Company may deliver
any such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture. The Company issued the Notes and the Subsidiary
Guarantors issued the Subsidiary Guarantees under an Indenture, dated as of
November [ ], 2004 (the "Indenture"), between the Company, the Subsidiary
Guarantors, the Trustee and the Collateral Agent. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) (the "TIA"), as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and the TIA for a statement of them. The Notes are general secured
obligations of the Company. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
5. Optional Redemption; Sinking Fund.
(a) Make-Whole Redemption. At any time prior to [ ], 2009, the
Company may, at its option, redeem all or part of the Notes upon not less than
30 nor more
B-5
than 60 days' notice, at a redemption price equal to the sum of the present
values of the redemption price of such Notes at the first optional Redemption
Date described below and all required interest payments, excluding accrued but
unpaid interest, due on such Notes through such first optional Redemption Date,
discounted to the date of such redemption on a quarterly basis, assuming 360-day
years consisting of twelve 30-day months, at the Treasury Rate plus 50 basis
points, plus accrued and unpaid interest to the Redemption Date, subject to the
right of Holders of record on the relevant Record Date to receive interest due
on the relevant Interest Payment Date.
(b) Redemption at Scheduled Prices. On or after [ ], 2009, the
Company may, at its option, redeem all or part of the Notes, 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, on the Notes redeemed, to the applicable Redemption Date, if redeemed
during the twelve-month period beginning on [ ] of the years indicated below:
Year Percentage
2009............................................. [ ]%
2010............................................. [ ]%
2011............................................. [ ]%
2012 and thereafter.............................. 100.000%
(c) Tax Redemption. At any time, the Company may, at its option,
redeem all, but not part, of the Notes, upon not less than 30 nor more than 60
days' notice, at a redemption price equal to 100% of the principal amount of the
Notes plus accrued and unpaid interest to the Redemption Date if, for U.S.
federal income tax purposes, the Company is not, or would not be, permitted to
deduct the interest payable on the Notes from its income.
(d) Sinking Fund. As a mandatory sinking fund (the "Sinking Fund"),
the Company will redeem on [ ] of each of the years 2016 to 2019, inclusive,
Notes in an aggregate principal amount equal to 10% of the aggregate principal
amount of the Notes originally issued under the Indenture at a redemption price
equal to 100% of the aggregate principal amount of the Notes to be redeemed,
together with accrued and unpaid interest to the Redemption Date. The Company
may, at its option, credit against the aggregate principal amount of the Notes
to be redeemed in connection with any Sinking Fund redemption (to the extent not
previously credited) the aggregate principal amount of Notes:
(i) previously or contemporaneously redeemed by it pursuant to the
provisions described under paragraph (a), (b) or (c) (or
previously or contemporaneously called for redemption pursuant
to such provisions so long as the Redemption Price therefore
shall have been deposited in trust for that purpose in
accordance with the Indenture); and
B-6
(ii) previously or contemporaneously acquired by it (and delivered
to the Trustee for cancellation), whether by privately
negotiated transactions, by way of tender offers (including
Change of Control Offers and Net Proceeds Offers) or
otherwise,
in either case described in clauses (i) and (ii) above other than through
mandatory Sinking Fund redemptions; provided, however, that the Company may only
credit purchases of separate notes pursuant to clause (b) above to the extent
that, as of the Business Day immediately preceding the date on which a Sinking
Fund redemption is required, such purchases did not result in the aggregate
principal amount of Notes underlying IDSs exceeding 90% of the aggregate
principal amount of all Notes outstanding on such date.
6. Notice of Redemption. Notice of redemption will 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 such Holder's registered address.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the Paying
Agent for redemption on such Redemption Date, then, unless the Company defaults
in the payment of such Redemption Price plus accrued interest, if any, the Notes
called for redemption will cease to bear interest from and after such Redemption
Date and the only right of the Holders of such Notes will be to receive payment
of the Redemption Price plus accrued interest, if any.
7. Offers to Purchase. Sections 4.15 and 4.16 of the Indenture
provide that, after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control (as defined in the Indenture), and subject
to further limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
8. Registration Rights. Pursuant to a Registration Rights Agreement
among the Company, the Guarantors and the Holders of the Initial Notes, the
Company will be obligated to consummate an exchange offer pursuant to which the
Holder of this Note shall have the right to exchange this Note for the Company's
Series B [ ]% Senior Secured Notes due 2024 (the "Exchange Notes"), which have
been registered under the Securities Act, in like principal amount and having
terms identical in all material respects as the Initial Notes. The Holders of
the Restricted Securities shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of a
Registration Rights Agreement.
9. Transfer; Exchange. The Notes are in registered form without
coupons. A Holder shall register the transfer of or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. The Registrar need not register
B-7
the transfer of or exchange of any Notes or portions thereof selected for
redemption (except, in the case of a Note to be redeemed in part, the portion of
the Note not to be redeemed) or to transfer or exchange any Notes for a period
of 15 days prior to a selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the Company at any
time deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the
Indenture, the Notes and the Collateral Agreements (including certain covenants,
but excluding its obligation to pay the principal of and interest on the Notes).
13. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture, the Notes or the Subsidiary Guarantees may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, and any existing
Default or Event of Default or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture, the Notes or
the Subsidiary Guarantees to, among other things, cure any ambiguity, defect or
inconsistency, provide for certificated Notes or Subsidiary Guarantees in
addition to or in place of uncertificated Notes or Subsidiary Guarantees, or
comply with Article Five of the Indenture or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness or Liens, make payments in respect of its
Capital Stock or certain Indebtedness, enter into transactions with Affiliates,
create dividend or other payment restrictions affecting Restricted Subsidiaries,
merge or consolidate with any other Person, sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets or adopt a
plan of liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
B-8
15. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Subsidiary Guarantees, the Collateral Agreements, if applicable, and the
Indenture, the predecessor will be released from those obligations.
16. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
17. Trustee and Collateral Agent Dealings with Company. Each of the
Trustee and the Collateral Agent under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee or the Collateral Agent.
18. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator or stockholder, as such, of the Company shall
have any liability for any obligation of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note waives
and releases all such liability. Such waiver and release are part of the
consideration of this Note.
19. Subsidiary Guarantees. Payment of principal and interest
(including interest on overdue principal and overdue interest, if lawful) is
unconditionally guaranteed, jointly and severally, by each of the Subsidiary
Guarantors.
20. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
21. Governing Law. The Laws of the State of New York shall govern
this Note, the Subsidiary Guarantees and the Indenture, without regard to
principles of conflict of laws.
22. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note 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).
B-9
23. 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 as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
Coinmach Service Corp., 000 Xxxxxxxxx Xxxx., Xxxxx 00, Xxxxxxxxx, Xxx Xxxx
00000, Attn: Chief Executive Officer.
B-10
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: _____________________________ Signed: ___________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ___________________________________________________________
B-11
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$___________________
Dated: _________________________________________________________________________
NOTICE: The signature on this assignment
must correspond with the name as
it appears upon the face of the
within Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed by
the endorser's bank or broker.
Signature Guarantee: ___________________________________________________________
B-12
FORM OF SUBSIDIARY GUARANTEE
[Name of Subsidiary Guarantor] and its successors under the
Indenture, jointly and severally with any other Subsidiary Guarantors, hereby
irrevocably and unconditionally guarantee, on a senior [secured]4 [unsecured]5
basis, (i) the due and punctual payment of the principal of, premium, if any,
and interest on the Notes, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal of and
interest, if any, on the Notes, to the extent lawful, and the due and punctual
performance of all other obligations of Coinmach Service Corp. (the "Company")
to the Holders or the Trustee all in accordance with the terms set forth in
Article Ten of the Indenture, (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 stated maturity, by acceleration or otherwise
and (iii) have agreed to pay any and all costs and expenses (including
reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing
any rights under this Subsidiary Guarantee. Capitalized terms used herein have
the meanings assigned to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as
such, past, present or future, of [name of Subsidiary Guarantor] shall have any
personal liability under this Subsidiary Guarantee by reason of his or its
status as such stockholder, employee, officer, director or incorporator. Each
Holder by accepting this Subsidiary Guarantee waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes and Subsidiary Guarantees. This Subsidiary Guarantee shall be binding
upon [name of Subsidiary Guarantor] and its successors and assigns 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 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.
--------------
(a) Insert if Subsidiary Guarantor is Coinmach Laundry Corporation.
(b) Insert if Subsidiary Guarantor is not Coinmach Laundry Corporation.
B-13
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Subsidiary Guarantee shall be governed by and construed in
accordance with the laws of the State of New York.
[NAME OF SUBSIDIARY GUARANTOR]
By:___________________________________
Name:
Title:
B-14
EXHIBIT C
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS
NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
___________,______
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [ ]
Re: Coinmach Service Corp. (the "Company")
Income Deposit Securities (the "IDSs")
Ladies and Gentlemen:
In connection with our proposed purchase of $_____ aggregate
principal amount of the Notes, we confirm that:
1. We have received a copy of the Prospectus (the "Prospectus"),
dated [ ], 2004, relating to the Notes and such other information as we
deem necessary in order to make our investment decision. We acknowledge
that we have read and agreed to the matters stated in the section entitled
"Transfer Restrictions" of the Prospectus.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of [ ], 2004 relating to the Notes (the "Indenture") and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3. 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 permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell or otherwise transfer any Notes
prior to the date which is within three years after the original issuance
of the Notes or the last date on which the Note is owned by an affiliate
of the Company, we will do so only (i) to the Company or any of its
subsidiaries,
D-1
(ii) inside the United States in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Notes,
substantially in the form of this letter, (iv) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (v)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as stated
herein.
4. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section
3 of the Employee Retirement Income Security Act of 1974), except as
permitted in the section entitled "Transfer Restrictions" of the Offering
Memorandum.
5. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certification, legal
opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as the case may be.
7. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby, and we agree to notify you promptly if
any of our representations or warranties herein cease to be accurate and
complete.
D-2
This letter shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflicts of
laws.
Very truly yours,
[Name of Transferee]
By: _________________________________
Authorized Signature
D-3
EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [ ]
Re: Coinmach Service Corp. (the "Company")
Income Deposit Securities (the "IDSs")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount
of the Notes, we confirm that Such sale has been effected pursuant to and in
accordance with Regulation S under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
E-1
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By: _________________________________
Authorized Signature
E-2
EXHIBIT F
FORM OF GLOBAL IDS
F-1
EXHIBIT G
FORM OF NOTICE TO BE
DELIVERED IN CONNECTION WITH COMBINATION/
RECOMBINATION OR SEPARATION OF IDSS
______________,____
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Coinmach Service Corp. (the "Company")
Income Deposit Securities (the "IDSs")
Ladies and Gentlemen:
We hereby request that:
(1) [You separate _______ IDSs owned by the undersigned into _______
shares of Class A Common Stock and _______ [ ]% Senior Secured Notes due
2024, in each case, of the Company.]
(2) [You recombine _______ shares of Class A Common Stock and
_______ [ ]% Senior Secured Notes due 2024(a), in each case, of the
Company and owned by the undersigned, to form ________ IDSs.]
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby, and we agree to notify you promptly if
any of our representations or warranties herein cease to be accurate and
complete.
-------------------
(a) Must be Initial Notes, Non-OID Additional Notes or OID Exchange Units.
G-1
This letter shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflicts of
laws.
Very truly yours,
[Name of Holder]
By: _________________________________
Authorized Signature
G-2
EXHIBIT H
FORM OF SECURITY AGREEMENT
H-1
EXHIBIT I
FORM OF PLEDGE AGREEMENT
I-1
