Exhibit 4.1
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XXXXXXXX SCOTSMAN, INC.,
as Issuer,
MOBILE FIELD OFFICE COMPANY,
as Guarantor,
WILLSCOT EQUIPMENT, LLC,
as Subordinated Guarantor
and
THE BANK OF NEW YORK,
as Trustee
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INDENTURE
Dated as of May 15, 1997
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up to $550,000,000
9 7/8% Senior Notes due 2007
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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;
10.02
(c)................................................... N.A.
311 (a)................................................... 7.11
(b)................................................... 7.11
(c)................................................... N.A.
312 (a)................................................... 2.05
(b)................................................... 10.03
(c)................................................... 10.03
313 (a)................................................... 7.06
(b)(1)................................................ N.A.
(b)(2)................................................ 7.06
(c)................................................... 7.06; 10.02
(d)................................................... 7.06
314 (a)................................................... 4.06; 4.08;
10.02
(b)................................................... N.A.
(c)(1)................................................ 10.04
(c)(2)................................................ 10.04
(c)(3)................................................ N.A.
(d)................................................... N.A.
(e)................................................... 10.05
(f)................................................... N.A.
315 (a)................................................... 7.01(b)
(b)................................................... 7.05; 10.02
(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)................................................... 10.01
(c)................................................... 10.01
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...................................... 1
SECTION 1.02. Incorporation by Reference of TIA................ 33
SECTION 1.03. Rules of Construction............................ 33
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.................................. 34
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..................................... 39
SECTION 2.06. Transfer and Exchange............................ 39
SECTION 2.07. Replacement Notes................................ 40
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. Defaulted Interest............................... 43
SECTION 2.13. CUSIP Number..................................... 44
SECTION 2.14. Deposit of Monies................................ 44
SECTION 2.15. Restrictive Legends.............................. 45
SECTION 2.16. Book-Entry Provisions for Global Note............ 47
SECTION 2.17. Special Transfer Provisions...................... 49
SECTION 2.18. Liquidated Damages Under Registration
Rights Agreement.............................. 52
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee............................... 52
SECTION 3.02. Selection of Notes To Be Redeemed................ 53
SECTION 3.03. Optional Redemption.............................. 53
SECTION 3.04. Notice of Redemption............................. 55
SECTION 3.05. Effect of Notice of Redemption................... 57
SECTION 3.06. Deposit of Redemption Price...................... 57
SECTION 3.07. Notes Redeemed in Part........................... 58
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes................................. 58
SECTION 4.02. Maintenance of Office or Agency.................. 59
SECTION 4.03. Corporate Existence.............................. 59
SECTION 4.04. Compliance Certificate; Notice of Default........ 60
SECTION 4.05. SEC Reports...................................... 61
SECTION 4.06. Waiver of Stay, Extension or Usury Laws.......... 61
SECTION 4.07. Limitation on Restricted Payments................ 62
SECTION 4.08. Limitation on Affiliate Transactions............. 65
SECTION 4.09. Limitation on Indebtedness....................... 67
SECTION 4.10. Limitation on Restrictions on
Distributions from Restricted
Subsidiaries.................................. 72
SECTION 4.11. Change of Control................................ 74
SECTION 4.12. Limitation on Sale of Assets and
Subsidiary Stock.............................. 76
SECTION 4.13. Limitation on Sale or Issuance of Capital
Stock of Restricted Subsidiaries.............. 78
SECTION 4.14. Limitation on Liens.............................. 79
SECTION 4.15. Additional Guarantees............................ 79
SECTION 4.16. Activities of the Issuer and the
Restricted Subsidiaries....................... 80
SECTION 4.17. Activities of Subordinated Guarantor............. 80
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger and Consolidation......................... 81
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default................................ 84
SECTION 6.02. Acceleration..................................... 87
SECTION 6.03. Other Remedies................................... 87
SECTION 6.04. Waiver of Past Defaults.......................... 88
SECTION 6.05. Control by Majority.............................. 88
SECTION 6.06. Limitation on Suits.............................. 88
SECTION 6.07. Rights of Holders to Receive Payment............. 89
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SECTION 6.08. Collection Suit by Trustee....................... 90
SECTION 6.09. Proofs of Claim.................................. 90
SECTION 6.10. Priorities....................................... 90
SECTION 6.11. Undertaking for Costs............................ 91
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee................................ 92
SECTION 7.02. Rights of Trustee................................ 94
SECTION 7.03. Individual Rights of Trustee..................... 95
SECTION 7.04. Trustee's Disclaimer............................. 96
SECTION 7.05. Notice of Default................................ 96
SECTION 7.06. Reports by Trustee to Holders.................... 96
SECTION 7.07. Compensation and Indemnity....................... 97
SECTION 7.08. Replacement of Trustee........................... 98
SECTION 7.09. Successor Trustee by Merger, Etc................. 99
SECTION 7.10. Eligibility; Disqualification.................... 100
SECTION 7.11. Preferential Collection of Claims Against
Issuer........................................ 100
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Issuer's Obligations.............. 101
SECTION 8.02. Application of Trust Money....................... 104
SECTION 8.03. Repayment to the Issuer.......................... 104
SECTION 8.04. Reinstatement.................................... 105
SECTION 8.05. Acknowledgment of Discharge by Trustee........... 105
ARTICLE NINE
AMENDMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders....................... 106
SECTION 9.02. With Consent of Holders.......................... 107
SECTION 9.03. Compliance with Trust Indenture Act.............. 109
SECTION 9.04. Revocation and Effect of Consents and
Waivers....................................... 109
SECTION 9.05. Notation on or Exchange of Notes................. 110
SECTION 9.06. Trustee To Sign Amendments....................... 110
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ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. TIA Controls..................................... 111
SECTION 10.02. Notices.......................................... 111
SECTION 10.03. Communications by Holders with Other
Holders....................................... 112
SECTION 10.04. Certificate and Opinion as to Conditions
Precedent..................................... 113
SECTION 10.05. Statements Required in Certificate or
Opinion....................................... 113
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar........ 114
SECTION 10.07. Legal Holidays................................... 114
SECTION 10.08. Governing Law.................................... 114
SECTION 10.09. No Adverse Interpretation of Other
Agreements.................................... 115
SECTION 10.10. No Personal Liability............................ 115
SECTION 10.11. Successors....................................... 116
SECTION 10.12. Duplicate Originals.............................. 116
SECTION 10.13. Severability..................................... 116
SECTION 10.14. Independence of Covenants........................ 116
SECTION 10.15. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities............ 117
ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01. Unconditional Guarantee.......................... 118
SECTION 11.02. Subordinated Guarantee of the
Subordinated Guarantor; Waiver of
Substantive Consolidation by
Noteholders; etc.............................. 120
SECTION 11.03. Limitations on Guarantees........................ 126
SECTION 11.04. Execution and Delivery of Guarantee.............. 127
SECTION 11.05. Release of a Guarantor or the
Subordinated Guarantor........................ 128
SECTION 11.06. Waiver of Subrogation............................ 129
SECTION 11.07. Immediate Payment................................ 130
SECTION 11.08. No Set-Off....................................... 131
SECTION 11.09. Obligations Continuing........................... 131
SECTION 11.10. Obligations Reinstated........................... 131
SECTION 11.11. Obligations Not Affected......................... 132
SECTION 11.12. Waiver........................................... 132
SECTION 11.13. No Obligation To Take Action Against the
Issuer........................................ 133
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SECTION 11.14. Dealing with the Issuer and Others............... 133
SECTION 11.15. Default and Enforcement.......................... 134
SECTION 11.16. Amendment, Etc................................... 134
SECTION 11.17. Acknowledgment................................... 135
SECTION 11.18. No Waiver; Cumulative Remedies................... 135
SECTION 11.19. Survival of Obligations.......................... 135
SECTION 11.20. Guarantee in Addition to Other
Obligations................................... 136
SECTION 11.21. Severability..................................... 136
SECTION 11.22. Successors and Assigns........................... 136
SECTION 11.23. No Personal Liability............................ 137
Exhibit A - Form of Initial Note................................... A-1
Exhibit B - Form of Exchange Note.................................. B-1
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors................................ C-1
Exhibit D - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Regulation S........................................ D-1
Exhibit E - Form of Guarantee...................................... E-1
Exhibit F - Form of Subordinated Guarantee......................... F-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 May 15, 1997, among XXXXXXXX SCOTSMAN, INC.,
a Maryland corporation (the "Issuer"), MOBILE FIELD OFFICE COMPANY, a New Jersey
corporation ("MFO"), as a Guarantor (as defined herein), WILLSCOT EQUIPMENT,
LLC, a Delaware corporation ("Willscot"), as Subordinated Guarantor (as defined
herein) and THE BANK OF NEW YORK, as Trustee (the "Trustee").
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.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) in a Permitted Business; (ii) Indebtedness of a
Person engaged in a Permitted Business if such Indebtedness is acquired in
connection with the acquisition of the Permitted Business (other than
Indebtedness Incurred to provide all or a portion of the funds or credit support
utilized to consummate the acquisition); (iii) the Capital Stock of a Person
that becomes a Restricted Subsidiary as a result of the acquisition of such
Capital Stock by the Issuer or another Restricted Subsidiary; or (iv) Capital
Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary; provided, however, that any such Restricted Subsidiary
described in clauses (iii) or (iv) above is primarily engaged in a Permitted
Business.
"Additional Interest" shall have the meaning set forth in the
applicable Registration Rights Agreement.
"Adjusted Consolidated Assets" means at any time the total amount of
assets of the Issuer and its consolidated Restricted Subsidiaries (less
applicable depreciation, amortization and other valuation reserves), after
deducting therefrom all current liabilities of the Issuer and its consolidated
Restricted Subsidiaries (excluding intercompany items, the current portion of
long-term debt and Indebtedness outstanding under the Credit Agreement), all as
set forth on the consolidated balance sheet of the Issuer and its consolidated
Restricted Subsidiaries as of the end of the most recent fiscal quarter for
which financial statements are available prior to the date of determination.
"Affiliate" means, with respect to any specified Person, any other
Person, directly or indirectly, controlling or controlled by, or under direct or
indirect common control with, such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Sections 4.07, 4.08, and 4.12 only, "Affiliate" shall
also mean any beneficial owner of Capital Stock representing 10% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the Issuer
or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.16.
"Applicable Premium" has the meaning provided in Section 3.03.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or other
dispositions) by the Issuer or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of (i) any
shares of Capital Stock of a Restricted Subsidiary (other than directors'
qualifying shares or shares required by applicable law to be held by a Person
other than the Issuer or a Restricted Subsidiary), (ii) all or substantially all
the assets of any division or line of business of the Issuer or any Restricted
Subsidiary or (iii) any other assets of the Issuer or any Restricted Subsidiary
outside of the ordinary course of business of the Issuer or such Restricted
Subsidiary (other than, in the case of (i), (ii) and (iii) above, (v) a
disposition by a Restricted Subsidiary to the Issuer or by the Issuer or a
Restricted Subsidiary to a Wholly Owned Subsidiary, (w) for purposes of Section
4.12 only, a disposition that constitutes a Restricted Payment permitted by
Section 4.07, (x) a disposition of assets with a fair market value of less than
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$1,000,000, (y) any Permitted Units Financing and (z) any Scheduled Asset
Disposition).
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Notes, compounded annually) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which such
lease has been extended).
"Authenticating Agent" has the meaning provided in Section 2.02.
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of the numbers of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Blockage Period" shall have the meaning provided in Section 11.02.
"Board of Directors" means the board of directors of the Issuer or
any committee thereof duly authorized to act on behalf of such Board.
"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.
"BTCC" means BT Commercial Corporation, a Delaware corporation.
"Business Day" means each day other than a Saturday, Sunday or legal
holiday on which commercial banks in New York, New York are authorized to close.
"Capital Lease Obligations" means an obligation that is required to
be classified and accounted for as a capital lease for financial reporting
purposes in accordance with GAAP,
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and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Change of Control" means the occurrence of any of the following
events:
(i) prior to the first Public Equity Offering, the Permitted
Holders, in the aggregate, cease to be the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
of a majority in the aggregate of the total voting power of the Voting
Stock of the Issuer, whether as a result of issuance of securities of the
Issuer, any merger, consolidation, liquidation or dissolution of the
Issuer, any direct or indirect transfer of securities or otherwise (for
purposes of this clause (i) and clause (ii) below, the Permitted Holders
shall be deemed to beneficially own any Voting Stock of a partnership,
limited liability company or corporation (the "specified corporation")
held by any other partnership, limited liability company or corporation
(the "parent corporation") so long as the Permitted Holders beneficially
own (as so defined), directly or indirectly, in the aggregate a majority
of the voting power of the Voting Stock of the parent corporation);
(ii) on or after the first Public Equity Offering, any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than one or more Permitted Holders, is or becomes the beneficial owner (as
defined in clause (i) above, except that for purposes of this clause (ii)
such person shall be deemed to have "beneficial ownership" of all shares
that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock
of the Issuer; provided, however, that the Permitted Holders beneficially
own (as defined in clause (i) above), directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the Voting
Stock of the Issuer than such other person and
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do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors (for
the purposes of this clause (ii), such other person shall be deemed to
beneficially own any Voting Stock of a specified corporation held by a
parent corporation, if such other person is the beneficial owner (as
defined in this clause (ii)), directly or indirectly, of more than 35% of
the voting power of the Voting Stock of such parent corporation and the
Permitted Holders beneficially own (as defined in clause (i) above),
directly or indirectly, in the aggregate a lesser percentage of the voting
power of the Voting Stock of such parent corporation and do not 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 such parent
corporation);
(iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Issuer was approved by
a vote of 66 2/3% of the directors of the Issuer 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 the Board of Directors then in office; or
(iv) the merger or consolidation of the Issuer with or into another
Person or the merger or consolidation of another Person with or into the
Issuer, or the sale of all or substantially all the assets of the Issuer
to another Person (other than a Person that is controlled by the Permitted
Holders in the aggregate), and, in the case of any such merger or
consolidation, the securities of the Issuer that are outstanding
immediately prior to such transaction and which represent 100% of the
aggregate voting power of the Voting Stock of the Issuer are changed into
or exchanged for cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged for, in addition
to any other consideration, securities of the surviving corporation that
represent, immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving corporation.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Commission" means the U.S. Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters for which financial statements are
available prior to the date of such determination to (ii) Consolidated Interest
Expense for such four fiscal quarters; provided, however, that (1) if the Issuer
or any Restricted Subsidiary has Incurred any Indebtedness since the beginning
of such period that remains outstanding or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, or both, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased, defeased
or otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period (except that, in making
such computation, the amount of Indebtedness under any revolving credit facility
outstanding on the date of such calculation shall be computed based on (A) the
average daily balance of such Indebtedness (and any Indebtedness under a
revolving credit facility replaced by such Indebtedness) during such four fiscal
quarters or such shorter period when such facility and any replaced facility was
outstanding or (B) if such facility was created after the end of such four
fiscal quarters, the average daily balance of such Indebtedness (and any
Indebtedness under a revolving credit facility replaced by such Indebtedness)
during the period from the date of creation of such facility to the date of the
calculation), (2) if the Issuer or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid, repurchased,
defeased or otherwise discharged (in each case other than Indebtedness Incurred
under any revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) on the date of the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio, EBITDA and
Consolidated Interest Expense for such period shall be calculated on a pro forma
basis as if such discharge had occurred on the first day of such period and as
if the Issuer or such Restricted Subsidiary had not earned the in-
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terest income actually earned during such period in respect of cash or Temporary
Cash Investments used to repay, repurchase, defease or otherwise discharge such
Indebtedness, (3) if since the beginning of such period the Issuer or any
Restricted Subsidiary shall have made any Asset Disposition (other than sales or
lease of Rental Equipment in the ordinary course of the business of the Issuer
and its Restricted Subsidiaries), the EBITDA for such period shall be reduced by
an amount equal to the EBITDA (if positive) directly attributable to the assets
which are the subject of such Asset Disposition for such period, or increased by
an amount equal to the EBITDA (if negative) directly attributable thereto for
such period, and Consolidated Interest Expense for such period shall be reduced
by an amount equal to the Consolidated Interest Expense directly attributable to
any Indebtedness of the Issuer or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Issuer and its continuing
Restricted Subsidiaries in connection with such Asset Disposition for such
period (or, if the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Issuer and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (4) if since the beginning of such period the Issuer or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary)
or an acquisition of assets, including any acquisition of assets occurring in
connection with a transaction requiring a calculation to be made hereunder,
which constitutes all or substantially all of an operating unit of a business or
a division or a line of business thereof, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto (including the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period and (5) if since the
beginning of such period any Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary
since the beginning of such period) shall have made any Asset Disposition, any
Investment or acquisition of assets that would have required an adjustment
pursuant to clause (3) or (4) above if made by the Issuer or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto as if such
Asset Disposition, Investment or acquisition occurred on the first day of such
period. For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma calculations shall
be determined in good
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faith by a responsible financial or accounting Officer of the Issuer. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess of
12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Issuer and its consolidated Restricted Subsidiaries, net
of any interest income of the Issuer and its consolidated Restricted
Subsidiaries for such period, as determined in accordance with GAAP, plus, to
the extent not included in such total interest expense, and to the extent
incurred by the Issuer or its Restricted Subsidiaries, without duplication, (i)
interest expense attributable to capital leases and the interest expense
attributable to leases constituting part of a Sale/Leaseback Transaction, (ii)
amortization of debt discount, (iii) capitalized interest, (iv) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (v) net costs associated with Hedging Obligations
(including amortization of fees), (vi) Preferred Stock dividends in respect of
all Preferred Stock (other than pay in kind dividends or accretions to
liquidation value of Preferred Stock that is not Disqualified Stock) held by
Persons other than the Issuer or a Wholly Owned Subsidiary, (vii) interest
incurred in connection with Investments in discontinued operations, (viii)
interest accruing on any Indebtedness of any other Person to the extent such
Indebtedness is guaranteed by (or secured by the assets of) the Issuer or any
Restricted Subsidiary, (ix) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person (other than the Issuer)
in connection with Indebtedness Incurred by such plan or trust and (x)
interest-equivalent costs associated with any Permitted Units Financing, whether
accounted for as interest expense or loss on the sale of Units and Related
Assets, and less, to the extent included in such total interest expense, the
amortization during such period of capitalized financing costs associated with
the Recapitalization and the financing thereof.
"Consolidated Net Income" means, for any period, the net income of
the Issuer and its consolidated Subsidiaries; provided, however, that there
shall not be included in such Consolidated Net Income:
(i) any net income of any Person (other than the Issuer) if such
Person is not a Restricted Subsidiary, ex-
-8-
cept that (A) subject to the exclusion contained in clause (iv) below, the
Issuer's equity in the net income of any such Person for such period shall
be included in such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such period to the Issuer
or a Restricted Subsidiary as a dividend or other distribution (subject,
in the case of a dividend or other distribution paid to a Restricted
Subsidiary, to the limitations contained in clause (iii) below) and (B)
the Issuer's equity in a net loss of any such Person for such period shall
be included in determining such Consolidated Net Income;
(ii) any net income (or loss) of any Person acquired by the Issuer
or a Subsidiary in a pooling of interests transaction for any period prior
to the date of such acquisition;
(iii) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Issuer, except that (A) subject
to the exclusion contained in clause (iv) below, the Issuer's equity in
the net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of
cash that could have been distributed by such Restricted Subsidiary during
such period to the Issuer or another Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other
distribution paid to another Restricted Subsidiary, to the limitation
contained in this clause) and (B) the Issuer's equity in a net loss of any
such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(iv) any gain (or loss) realized upon the sale or other disposition
of any assets of the Issuer or its consolidated Subsidiaries (including
pursuant to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any gain (or
loss) realized upon the sale or other disposition of any Capital Stock of
any Person;
(v) extraordinary gains or losses; and
(vi) the cumulative effect of a change in accounting principles.
-9-
Notwithstanding the foregoing, for the purposes of Section 4.07
only, there shall be excluded from Consolidated Net Income any dividends,
repayments of loans or advances or other transfers of assets (including any sale
of an Investment) to the Issuer or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments
permitted under such covenant pursuant to clause (a)(3)(D) thereof.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Issuer and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of the Issuer for which financial statements are available, as
(i) the par or stated value of all outstanding Capital Stock of the Issuer plus
(ii) paid-in capital or capital surplus relating to such Capital Stock plus
(iii) any retained earnings or earned surplus less (A) any accumulated deficit
and (B) any amounts attributable to Disqualified Stock.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000.
"Covenant Defeasance" has the meaning set forth in Section 8.01.
"Credit Agreement" means, collectively, the Credit Agreement dated
as of May 22, 1997, among Holdings, the Issuer, the Lenders, BT Commercial
Corporation as agent, and Bankers Trust Company, as Issuing Bank (including any
guarantee agreements and related security documents), in each case as such
agreements or documents may be amended (including any amendment, restatement or
restructuring thereof), supplemented or otherwise modified or replaced from time
to time, including any agreement extending the maturity of, refunding,
refinancing, increasing the amount available under or replacing such agreement
or document or any successor or replacement agreement or document and whether by
the same or any other agent, lender or group of lenders.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement to which
such Person is a party or a beneficiary.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
-10-
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Default Notice" shall have the meaning provided in Section 11.02.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Direct Investor" means Oak Hill Securities Fund, L.P.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the 123rd day following the
Stated Maturity of the Notes; provided, however, that any Capital Stock that
would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require such Person to repurchase or redeem such
Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the first anniversary of the Stated Maturity of the Notes
shall not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are not more favorable to
the holders of such Capital Stock than the provisions set forth in Sections 4.11
and 4.12.
"EBITDA" for any period means the sum of Consolidated Net Income,
plus Consolidated Interest Expense, plus the following to the extent deducted
(or, in the case of clause (e) below only, not included) in calculating such
Consolidated Net Income: (a) all income tax expense of the Issuer and its
consolidated Restricted Subsidiaries, (b) depreciation expense of the Issuer and
its consolidated Restricted Subsidiaries, (c) amortization expense of the Issuer
and its consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period), (d) all
other non-cash charges of the Issuer and its consolidated Restricted
Subsidiaries (including the amortization during such period of capitalized
financing costs associated with the Recapitalization and the financing thereof
and excluding any non-cash charge to the extent that it represents an accrual of
or reserve for cash expenditures in any future period),(e) income attributable
to discontinued operations and (f) any cash charges (including from the write-up
of assets) or write-offs associated with the transactions contemplated by the
-11-
Recapitalization and the financing thereof. Notwithstanding the foregoing, the
provision for taxes based on the income or profits of, and the depreciation and
amortization and non-cash charges of, a Restricted Subsidiary shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in
calculating Consolidated Net Income and only if a corresponding amount would be
permitted at the date of determination to be dividended to the Issuer by such
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Eligible Accounts Receivable" has the meaning specified in the
Credit Agreement.
"Eligible Rental Equipment" has the meaning specified in the Credit
Agreement.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.12.
"Excess Proceeds Offer" has the meaning provided in Section 4.12.
"Excess Proceeds Payment" has the meaning provided in Section 4.12.
"Excess Proceeds Payment Date" has the meaning provided in Section
4.12.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the 9 7/8% Senior Notes due 2007 to be issued
in exchange for the Initial Notes pursuant to each Registration Rights Agreement
or, with respect to Initial Notes issued under this Indenture subsequent to the
Issue Date pursuant to Section 2.02, a registration rights agreement
substantially identical to the Registration Rights Agreement with the Initial
Purchasers.
"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
-12-
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Issuer acting reasonably
and in good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Issuer, as the case may be, delivered to the Trustee.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"Global Note" has the meaning provided in Section 2.01.
"guarantee" means any obligation, contingent or otherwise, of any
Person, directly or indirectly guaranteeing any Indebtedness or other obligation
of any Person and any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such Person
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to take-or-pay or to maintain financial statement conditions or
otherwise) or (ii) entered into for the purpose of assuring in any other manner
the obligee of such Indebtedness or other obligation of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a corresponding meaning.
"Guarantee" means the guarantee of the Notes by the Guarantors.
"Guarantor" and "Guarantors" mean, individually and collectively,
(i) MFO, (ii) each Significant Subsidiary, whether formed or acquired after the
Issue Date, and (iii) any Subsidiary, whether formed or acquired after the Issue
Date, that guarantees any Indebtedness outstanding under the Credit Agreement;
provided, however, that any Subsidiary acquired after the Issue Date which is
prohibited from entering into a
-13-
Guarantee pursuant to restrictions contained in any debt instrument in existence
at the time such Subsidiary was so acquired and not entered into in anticipation
or contemplation of such acquisition shall not be required to become a Guarantor
so long as any such restriction is in existence and to the extent of any such
restriction; provided, further, that if any Guarantor is released from its
guarantee of the Outstanding Indebtedness of the Issuer under the Credit
Agreement and the pledge by it, directly or indirectly, of any of its assets as
security for any such Indebtedness at a time when no Default or Event of Default
has occurred and is continuing, such Guarantor shall be automatically released
from its obligations as a Guarantor and, from and after such date, such
Guarantor shall cease to constitute a Guarantor; and provided, further, that the
Subordinated Guarantor shall not be a Guarantor except to the extent permitted
below. Notwithstanding the foregoing, any Subsidiary that is a Securitization
Subsidiary or is designated an Unrestricted Subsidiary and that, in each case,
does not guarantee or so pledge any of its assets as security for any
Indebtedness under the Credit Agreement shall not be required to become a
Guarantor. If consented to by the requisite holders of the then outstanding
Subordinated Guarantor Senior Indebtedness, the Subordinated Guarantor may
notify the Trustee and the Noteholders in writing that it irrevocably elects to
become a Guarantor. So long as such consents have in fact been received, upon
receipt by the Trustee of such written notice together with an Officers'
Certificate to the effect that such consent has been received and that such
change can be effected, the provisions of Section 11.02 hereof and the
Subordinated Guarantee shall terminate and cease to be effective and the terms
and conditions of the Subordinated Guarantee shall be deemed to have been
amended to have terms and conditions identical to those of a Guarantee.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Holdings" means Scotsman Holdings, Inc. and its successors.
"Incur" means issue, assume, guarantee, incur or otherwise become
liable for Indebtedness or Capital Stock; provided, however, that any
Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary. The term "Incurrence" when used as a noun
-14-
shall have a correlative meaning. The accretion of principal of a non-interest
bearing or other discount security shall not be deemed the Incurrence of
Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication),
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into
by such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary
course of business);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (i)
through (iii) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than the
30th day following payment on the letter of credit);
(v) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of such Person, the liquidation preference
with respect to any Preferred Stock (but excluding, in each case, any
accrued dividends);
(vi) all obligations of the type referred to in clauses (i) through
(v) of other Persons and all dividends of other Persons for the payment of
-15-
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
guarantee;
(vii) all obligations of the type referred to in clauses (i) through
(vi) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so secured; and
(viii) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date; provided, however, that
the amount outstanding at any time of any Indebtedness Incurred with original
issue discount is the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such
time as determined in conformity with GAAP.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" shall have the meaning provided in
Section 4.08.
"Initial Notes" means, collectively, (i) the 9 7/8% Senior Notes due
2007 of the Issuer issued on the Issue Date and (ii) one or more series of 9
7/8% Senior Notes due 2007 that are issued under this Indenture subsequent to
the Issue Date pursuant to Section 2.02, in each case for so long as such
securities constitute Restricted Securities.
"Initial Purchasers" means, collectively, BT Securities Corporation,
Alex. Xxxxx & Sons Inc. and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.
"Insolvency or Liquidation Proceeding" means with respect to any
Person (i) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, re-
-16-
lating to such Person or its assets, or (ii) any liquidation, dissolution or
other winding up of such Person, whether voluntary or involuntary or whether or
not involving insolvency or bankruptcy, or (iii) any assignment for the benefit
of creditors or any other marshaling of assets or liabilities of such Person.
"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.
"interest" when used with respect to any Note means the amount of
all interest accruing on such Note, including any applicable defaulted interest
pursuant to Section 2.12 and any Additional Interest pursuant to the
Registration Rights Agreement.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed
to protect the Issuer or any Restricted Subsidiary against fluctuations in
interest rates.
"Investment" in any Person means any direct or indirect advance
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender), loan or
other extension of credit (including by way of guarantee or similar arrangement)
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 of Capital Stock, Indebtedness or other
similar instruments issued by, such Person. For purposes of the definition of
"Unrestricted Subsidiary," the definition of "Restricted Payment" and Section
4.07, (i) "Investment" shall include the portion (proportionate to the Issuer's
equity interest in such Subsidiary) of the fair market value of the net assets
of any Subsidiary of the Issuer at the time that such Subsidiary is designated
an Unrestricted Subsidiary; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Issuer shall be deemed to continue to
have a permanent "Investment" in an Unrestricted Subsidiary equal to an amount
(if positive) equal to (x) the Issuer's "Investment" in such Subsidiary at the
time of such redesignation less (y) the portion (proportionate to the Issuer's
equity interest in such Subsidiary) of the fair market value of the net assets
of such Subsidiary at the time of such redesignation; and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at
-17-
the time of such transfer, in each case as determined in good faith by the Board
of Directors.
"Issue Date" means the first date on which the initial $400 million
aggregate principal amount of the Notes are originally issued.
"Issuer" means Xxxxxxxx Scotsman, Inc. and its successors.
"Legal Defeasance" has the meaning set forth in Section 8.01.
"Lenders" has the meaning specified in the Credit Agreement.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Maturity Date" means June 1, 2007.
"MFO" means Mobile Field Office Company, a New Jersey corporation.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form) in each case net of (i) all legal, title
and recording tax expenses, commissions and other fees and expenses incurred
(including, without limitation, all broker's and finder's fees and expenses, all
investment banking fees and expenses, employee severance and termination costs,
and trade payable and similar liabilities solely related to the assets sold or
otherwise disposed of and required to be paid by the seller as a result
thereof), and all Federal, state, provincial, foreign and local taxes required
to be paid or accrued as a liability under GAAP, as a consequence of such Asset
Disposition, (ii) all relocation expenses related to any Rental Equipment
incurred as a result thereof, (iii) all payments made on any Indebtedness which
is secured by any assets subject to such Asset Disposition, in accordance with
the terms of any Lien upon or other security agreement of any kind with respect
to such assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Disposi-
-18-
tion, or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iv) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of such
Asset Disposition and (v) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities associated
with the property or other assets disposed of in such Asset Disposition and
retained by the Issuer or any Restricted Subsidiary after such Asset
Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means, collectively, the Initial Notes, the Private Exchange
Notes, if any, and the Unrestricted Notes, 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.
"Offering Memorandum" means the confidential Offering Memorandum
dated May 16, 1997 of the Issuer relating to the offering of the Notes.
"Officer" means, with respect to any Person, the Chairman of the
Board of Directors, 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 a certificate signed by two Officers
of the Issuer.
-19-
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 10.04 and 10.05, as they relate to the giving of an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Business" means (i) all or any part of the business of
selling and leasing mobile offices and modular structures or any other equipment
sold or leased to a similar customer base, (ii) any other business conducted by
the Issuer or its Restricted Subsidiaries on the Issue Date and (iii) any
business or services related, ancillary or complementary to such businesses.
"Permitted Holders" means (i) The Cyress Group L.L.C., Cypress
Merchant Banking Partners L.P., Cypress Offshore Partners L.P., Keystone, Inc.,
FW Strategic Partners, L.P., Scotsman Partners, L.P. and any Person who on the
Issue Date is an Affiliate of any of the foregoing, (ii) any Person who is a
member of the senior management of the Issuer or Holdings and a stockholder of
Holdings on the Issue Date and (iii) BT Capital Partners, Inc., Odyssey
Partners, L.P. and any Person who is an Affiliate on the Issue Date of either of
them.
"Permitted Investment" means an Investment by the Issuer or any
Restricted Subsidiary in (i) a Restricted Subsidiary or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary; (ii) another
Person if as a result of such Investment such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all its
assets to, the Issuer or a Restricted Subsidiary; provided, however, that such
Person's primary business is a Permitted Business; (iii) Temporary Cash
Investments; (iv) Investments existing on the Issue Date; (v) receivables owing
to the Issuer or any Restricted Subsidiary if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Issuer or any such Restricted Subsidiary deems
reasonable under the circumstances; (vi) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (vii) loans or advances to employees made in the ordinary
course of business consistent with past practices of the Issuer or such
Restricted Subsidiary; (viii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to the
Issuer or any Restricted Subsidiary or in satisfaction of judgments; (ix)
In-
-20-
vestments made in connection with any Asset Disposition or other sale, lease,
transfer or other disposition permitted under this Indenture; (x) Investments
made in Holdings by the Issuer, the proceeds of which enable Holdings to fund
the transactions contemplated by the Recapitalization (including the payment of
fees and expenses), to pay interest and principal on the Promissory Notes and to
pay interest on and to repurchase, redeem, defease or pay on maturity any
Holdings Notes (including any accrued interest, principal and premium, if any,
thereon) (to the extent not repurchased as part of the Recapitalization); and
(xi) additional Investments in an aggregate amount which, together with all
other Investments made pursuant to this clause that are then outstanding, does
not exceed $20.0 million.
"Permitted Liens" means (a) Liens of the Issuer and its Restricted
Subsidiaries securing Indebtedness of the Issuer or any of its Restricted
Subsidiaries Incurred under the Credit Agreement to the extent permitted to be
Incurred under Section 4.09(b)(1) or (b)(14); (b) Liens in favor of the Issuer
or its Wholly-Owned Restricted Subsidiaries; (c) Liens on property of a Person
existing at the time such Person becomes a Restricted Subsidiary of the Issuer
or is merged into or consolidated with the Issuer or any Restricted Subsidiary
of the Issuer; provided that such Liens were not incurred in connection with, or
in contemplation of, such merger or consolidation and such Liens do not extend
to or cover any property other than such property, improvements thereon and any
proceeds therefrom; (d) Liens of the Issuer securing Indebtedness of the Issuer
Incurred under clause (b)(2) or (b)(8) of Section 4.09; (e) Liens of the Issuer
and its Restricted Subsidiaries securing Indebtedness of the Issuer or any of
its Restricted Subsidiaries (including under a Sale/Leaseback Transaction)
permitted to be Incurred under clause (b)(9), (b)(11) or (b)(12) of Section 4.09
so long as the Capital Stock, property (real or personal) or equipment to which
such Lien attaches solely consists of the Capital Stock, property or equipment
which is the subject of such acquisition, purchase, lease, improvement,
Sale/Leaseback Transaction and additions and Improvements thereto (and the
proceeds therefrom); (f) Liens on property existing at the time of acquisition
thereof by the Issuer or any Restricted Subsidiary of the Issuer; provided that
such Liens were not incurred in connection with, or in contemplation of, such
acquisition and such Liens do not extend to or cover any property other than
such property, additions and improvements thereon and any proceeds therefrom;
(g) Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety or appeal bonds, government contracts,
performance and return of money bonds or other obligations of a like nature
incurred in the ordinary course of business; (h) Liens existing on the Issue
Date (including, without limitation,
-21-
Liens securing the Senior Secured Notes) and any additional Liens created under
the terms of the agreements relating to such Liens existing on the Issue Date;
(i) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate
proceedings; provided that any reserve or other appropriate provision as shall
be required in conformity with GAAP shall have been made therefor; (j) Liens
incurred in the ordinary course of business of the Issuer or any Restricted
Subsidiary with respect to obligations that do not exceed $20.0 million in the
aggregate at any one time outstanding and that (1) are not incurred in
connection with or in contemplation of the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (2) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of the
business by the Issuer or such Restricted Subsidiary; (k) statutory Liens of
landlords and warehousemen's, carriers', mechanics', suppliers', materialmen's,
repairmen's or other like Liens (including contractual landlords' liens) arising
in the ordinary course of business of the Issuer and its Restricted
Subsidiaries; (l) Liens incurred or deposits made in the ordinary course of
business of the Issuer and its Restricted Subsidiaries in connection with
workers' compensation, unemployment insurance and other types of social
security; (m) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Issuer or any of
its Restricted Subsidiaries; (n) Liens securing reimbursement obligations with
respect to letters of credit permitted under Section 4.09 which encumber only
cash and marketable securities and documents and other property relating to such
letters of credit and the products and proceeds thereof; (o) judgment and
attachment Liens not giving rise to an Event of Default; (p) any interest or
title of a lessor in the property subject to any Capital Lease Obligation
permitted under Section 4.09; (q) Liens encumbering the residual interest of the
Issuer or any of its Restricted Subsidiaries under any lease of mobile office
units, modular structures or similar equipment to third parties (i) that is
accounted for as a sale of such units, structures or equipment and (ii) the
interest in which lease is sold to a third party financing source on a
non-recourse basis; (r) leases or subleases of mobile office units, modular
structures or similar equipment granted to others in the ordinary course of
business and consistent with the past practice of the Issuer and its Restricted
Subsidiaries and any other lease or sublease not interfering in any material
respect with the business of the Issuer and its Restricted Subsidiaries; (s)
Liens on cash and cash equivalents posted as margin pursuant to any Hedging
Obligations permitted under Section 4.09; (t) Liens securing Refi-
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nancing Indebtedness to the extent such Liens do not extend to or cover any
property of the Issuer not previously subjected to Liens relating to the
Indebtedness being refinanced; (u) Liens to secure Indebtedness Incurred in a
developmental financing provided by a governmental entity which is on terms more
favorable than those available (at the time of such financing) from third party
sources; provided that such Liens do not cover any property other than the
property subject to such financing, any additions and improvements thereon and
the proceeds therefrom; (v) Liens on pledges of the capital stock of any
Unrestricted Subsidiary securing any Indebtedness of such Unrestricted
Subsidiary; or (w) Liens on Units and Related Assets securing Indebtedness or
otherwise permitted to be Incurred, in each case, with a Permitted Units
Financing.
"Permitted Secured Indebtedness" means Indebtedness of the Issuer or
any Restricted Subsidiary permitted to be incurred or outstanding under this
Indenture which is secured by a Permitted Lien.
"Permitted Units Financing" means a transaction or series of
transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Units and Related Assets from the Issuer or
any Restricted Subsidiary and finances such Units and Related Assets through the
issuance of indebtedness or equity interests or through the sale of the Units
and Related Assets or a fractional undivided interest in the Units and Related
Assets; provided that (i) the Board of Directors shall have determined in good
faith that such Permitted Units Financing is economically fair and reasonable to
the Issuer and the Securitization Subsidiary; (ii) all sales of Units and
Related Assets to or by the Securitization Subsidiary are made at fair market
value (as determined in good faith by the Board of Directors of the Issuer);
(iii) the financing terms, covenants, termination events and other provisions
thereof shall be market terms (as determined in good faith by the Board of
Directors of the Issuer); (iv) no portion of the Indebtedness of a
Securitization Subsidiary is guaranteed by or is recourse to the Issuer or any
Restricted Subsidiary (other than (i) recourse of customary representations,
warranties, covenants and indemnities relating solely to title, use or condition
of the Units and Related Assets subject thereto and the Capital Stock of the
Securitization Subsidiary and (ii) as permitted under clause (b)(10)(B) of
Section 4.09); and (v) neither the Issuer nor any Restricted Subsidiary has any
obligation to maintain or preserve the Securitization Subsidiary's financial
condition.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association,
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joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
"Physical Notes" has the meaning provided in Section 2.01.
"plan of liquidation" means, with respect to any Person, a plan
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (a) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of such Person otherwise
than as an entirety or substantially as an entirety and (b) the distribution of
all or substantially all of the proceeds of such sale, lease, conveyance or
other disposition and all or substantially all of the remaining assets of such
Person to holders of Capital Stock of such Person.
"Preferred Stock," as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Private Exchange Notes" has the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on
the Notes in the form set forth in Section 2.15.
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act in effect as of the
Issue Date, as determined by the Board of Directors of Holdings in consultation
with its independent public accountants.
"Promissory Notes" means the promissory notes due January 15, 1998
issued by Holdings on the Issue Date to its existing stockholders pursuant to
the Recapitalization Agreement to fund the repurchase of its common stock.
"Public Equity Offering" means an underwritten primary public
offering of common stock or common equity of the
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Issuer, Holdings or any other Person that directly or indirectly owns 100% of
the common stock of the Issuer pursuant to an effective registration statement
under the Securities Act.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Recapitalization" has the meaning set forth in the Offering
Memorandum.
"Recapitalization Agreement" means the Recapitalization Agreement
dated as of April 11, 1997 among Holdings, Cypress Merchant Banking Partners
L.P., Cypress Offshore Partners L.P., Keystone, Inc., FW Strategic Partners,
L.P., Odyssey Partners, L.P. and certain other stockholders of Holdings, as the
same may from time to time be amended, modified or supplemented.
"Record Date" means the Record Dates specified in the Notes.
"Redemption Date," when used with respect to any Note to be
redeemed, means 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, including principal and
premium, if any, pursuant to this Indenture and the Notes.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Issuer or any Restricted Subsidiary existing on the Issue
Date or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) such
Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or
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committed (plus fees and expenses, including any premium and defeasance costs)
under the Indebtedness being Refinanced; provided, further, however, that
Refinancing Indebtedness shall not include (x) Indebtedness of a Subsidiary that
Refinances Indebtedness of the Issuer or (y) Indebtedness of the Issuer or a
Restricted Subsidiary that Refinances Indebtedness of an Unrestricted
Subsidiary.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreements" means, collectively, the
Registration Rights Agreement dated the Issue Date among the Issuer, MFO, the
Subordinated Guarantor and the Initial Purchasers and the Registration Rights
Agreement dated the Issue Date among the Issuer, MFO, the Subordinated Guarantor
and Oak Hill Securities Fund, L.P.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Issuer and its Restricted Subsidiaries on
the Issue Date.
"Rental Equipment" means all mobile office units or other equipment
held for rental (or at the time being rented) or sale by the Issuer and its
Restricted Subsidiaries in the ordinary course of business.
"Representative" means, for any issue of Subordinated Guarantor
Senior Indebtedness, the agent, trustee or similar representative for the
holders of the respective issue of such Indebtedness or, in the absence of any
such representative, the holders of a majority of the outstanding amount of such
Subordinated Guarantor Senior Indebtedness.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock (including any such payment in connection with
any merger or consolidation involving such Person) or similar payment to the
direct or indirect holders of its Capital Stock (other than dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and dividends or distributions payable solely to the Issuer or a
Restricted Subsidiary, and other than pro rata dividends or other distributions
made by a Subsidiary that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a Subsidiary
that is an entity other than a corporation)), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Issuer or
Holdings
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held by any Person or of any Capital Stock of a Restricted Subsidiary
held by any Affiliate of the Issuer (other than a Restricted Subsidiary),
including the exercise of any option to exchange any Capital Stock (other than
into Capital Stock of the Issuer that is not Disqualified Stock), (iii) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment, of any Subordinated Indebtedness (other than the purchase,
repurchase or other acquisition of Subordinated Indebtedness purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of acquisition) or
(iv) the making of any Investment (other than a Permitted Investment) in any
Person.
"Restricted SecuritySecurity" has the meaning assigned to such term
in Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any Note constitutes a SecurityRestricted Security.
"Restricted Subsidiary" means any Subsidiary of the Issuer that is
not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw Hill Companies, Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Issuer or a Restricted
Subsidiary transfers such property to a Person and the Issuer or a Restricted
Subsidiary leases it from such Person.
"Scheduled Asset Dispositions" means an Asset Disposition of any of
the real property and any equipment located at sites in Berlin, N.J., North
East, Maryland and Lawrenceville, Georgia on the Issue Date.
"Scotsman" means the Issuer.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuer or a
Restricted Subsidiary secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
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"Securitization Subsidiary" means a Subsidiary (all the voting stock
(other than directors' qualifying shares) of which is owned by the Issuer or one
or more Wholly Owned Subsidiaries) which is established for the limited purpose
of acquiring and financing Units and Related Assets and engaging in activities
ancillary thereto; provided, however, that the Subordinated Guarantor shall not
be a Securitization Subsidiary.
"Senior Indebtedness" means (i) Indebtedness and all other monetary
obligations of the Issuer pursuant to the Credit Agreement and (ii) Indebtedness
of the Issuer, whether outstanding on the Issue Date or thereafter Incurred,
unless in the case of (ii) in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such Indebtedness
is subordinate in right of payment to the Notes.
"Senior Secured Notes" means the 9 1/2% Senior Secured Notes due
2000 of the Issuer.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Issuer within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Guarantee" means the subordinated guarantee of the
Notes by the Subordinated Guarantor
"Subordinated Guarantor" means Willscot Equipment, LLC, a
special-purpose Subsidiary of the Company formed under the laws of the State of
Delaware to hold certain Rental Equipment.
"Subordinated Guarantor Senior Indebtedness" means (i) all
Indebtedness of the Subordinated Guarantor Incurred pursuant to the Credit
Agreement (whether Incurred pursuant to clause (b)(1) or (b)(14) of Section 4.09
or Incurred pursuant to clause (b)(7) of Section 4.09 in respect of Indebtedness
Incurred pursuant to clause (b)(1) or (b)(14) of Section 4.09), and all
Indebtedness under any guarantee by the Subordinated Guarantor of Indebtedness
described above incurred by the Issuer or any Guarantor, and all expenses, fees,
reimbursements,
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indemnities, unpaid drawings, interest (including interest at the contract rate
accruing on or after the filing of any petition in bankruptcy or reorganization
relating to the Issuer or the Subordinated Guarantor whether or not a claim for
post-filing interest is allowed in such proceeding) and other amounts owing in
respect thereof and (ii) all Indebtedness of the Subordinated Guarantor incurred
pursuant to clause (b)(2) or (b)(8) or incurred pursuant to clause (b)(7) in
respect of Indebtedness incurred pursuant to clause (b)(2) or (b)(8) of Section
4.09, and all Indebtedness under any guarantee thereof by the Subordinated
Guarantor, and all expenses, fees, reimbursements, indemnities and other amounts
owing with respect thereto; provided, that Subordinated Guarantor Senior
Indebtedness will not be deemed to include (a) any Indebtedness, guarantee or
obligation of the Subordinated Guarantor which is expressly subordinate or
junior by its terms in any respect to any other Indebtedness, guarantee or
obligations of the Subordinated Guarantor or (b) that portion of any
Indebtedness incurred in violation of Section 4.09; provided, further, that
clause (b) of the immediately preceding proviso shall not apply to any
Indebtedness which the respective lenders believed, at the time of the extension
thereof, was permitted to be incurred in accordance with Section 4.09 so long as
the Issuer or its respective Subsidiary which was the direct obligor thereon
represented, at the time of such extension of credit, that such extension did
not violate the provisions of this Indenture.
"Subordinated Indebtedness" means any Indebtedness of the Issuer,
any Guarantor or the Subordinated Guarantor (whether outstanding on the Issue
Date or thereafter Incurred), as the case may be, which is subordinate or junior
in right of payment to the Notes or, in the case of a Guarantor, to such
Guarantor's Guarantee or, in the case of the Subordinated Guarantor, to the
Subordinated Guarantee, as the case may be, pursuant to a written agreement to
that effect.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Successor Issuer" shall have the meaning set forth in Section 5.01.
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"Tax Sharing Agreement" means any tax sharing agreement between the
Issuer and Holdings or any other Person with which the Issuer is required to, or
is permitted to, file a consolidated tax return or with which the Issuer is or
could be part of a consolidated group for tax purposes.
"Temporary Cash Investments" means any of the following:
(i) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof,
(ii) investments in time deposit accounts, certificates of deposit
and money market deposits maturing within one year of the date of
acquisition thereof issued by a bank or trust company which is organized
under the laws of the United States of America, any state thereof or any
foreign country recognized by the United States, and which bank or trust
company has capital, surplus and undivided profits aggregating in excess
of $50,000,000 (or the foreign currency equivalent thereof) and has
outstanding debt which is rated "A" (or such similar equivalent rating) or
higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act) or any
money market fund sponsored by a registered broker-dealer or mutual fund
distributor,
(iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above
entered into with a bank meeting the qualifications described in clause
(ii) above,
(iv) investments in commercial paper, maturing not more than one
year after the date of acquisition, issued by a corporation (other than an
Affiliate of the Issuer) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to Xxxxx'x or "A-1" (or
higher) according to S&P, and
(v) investments in securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
common-
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wealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "A" by S&P or
"A" by Xxxxx'x.
"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.
"Treasury Rate" has the meaning provided in Section 3.03.
"Trust Officer" means any officer or assistant 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.
"Units and Related Assets" means mobile office units, modular
structures or other equipment leased or sold to a similar customer base, leases,
general intangibles and other similar assets, in each case, relating to such
mobile office units, modular structures or other equipment, related contractual
rights, guarantees, insurance proceeds, collections, other related assets and
proceeds of all of the foregoing.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the Private Placement Legend in the form set forth in Section
2.15, including, without limitation, the Exchange Notes.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Issuer
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary; provided, however, that the Subordinated
Guarantor shall not be, or be designated as, an Unrestricted Subsidiary. The
Board of Directors may designate any Subsidiary of the Issuer (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Lien on any property of, the Issuer or any other
Subsidiary of the Issuer that is not a Subsidiary of the Subsidiary to be so
designated; provided, how-
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ever, that either (A) the Subsidiary to be so designated has total assets of
$1,000 or less or (B) if such Subsidiary has assets greater than $1,000, such
designation would be permitted under the covenant described under Section 4.07.
The Board of Directors may designate any Unrestricted Subsidiary (other than a
Guarantor) to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation (x) the Issuer could Incur $1.00 of
additional Indebtedness under paragraph (a) of the covenant described in Section
4.09 and (y) no Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be made by the Issuer to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"U.S. Legal Tender" means such coin or currency of the United States
of America for payment of which the full faith and credit of the United States
of America is pledged.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares) is owned by the
Issuer or one or more Wholly Owned Subsidiaries.
"Willscot" means Willscot Equipment, LLC, a Delaware limited
liability company.
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.
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"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on this Indenture securities means the Issuer 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 Commission 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;
(4) words in the singular include the plural, and words in the
plural include the singular;
(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; and
(6) any reference to a statute, law or regulation means that
statute, law or regulation as amended and in effect from time to time and
includes any successor statute, law or regulation; provided, however, that
any reference to the Bankruptcy Law shall mean the Bankruptcy Law as
applicable to the relevant case.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit A hereto. The
Exchange Notes and the Trustee's certificate of authentication relating thereto
shall be substantially in the form of Exhibit B hereto. The Notes may have
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notations, legends or endorsements required by law, stock exchange rule or
depository rule or usage. The Issuer and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them. If required, the
Notes may bear the appropriate legend regarding any original issue discount for
federal income tax purposes. Each Note shall be dated the date of its issuance
and shall show the date of its authentication. Each Note shall have an executed
Guarantee from each of the Guarantors and an executed Subordinated Guarantee
from the Subordinated Guarantor endorsed thereon substantially in the forms of
Exhibits E and F hereto, respectively.
The terms and provisions contained in the Notes, 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 Issuer, the Guarantors, the
Subordinated Guarantor and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Notes sold in reliance on Rule 144A and Notes offered and sold in
reliance on Regulation S 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 A (the "Global Note"), deposited with the Trustee, as custodian for
the Depository, duly executed by the Issuer (and having an executed Guarantee
and Subordinated Guarantee endorsed thereon) and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth in Section 2.15. The
aggregate principal amount of the 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 issued in exchange for interests in a Global Note pursuant to
Section 2.16 or Notes originally purchased by or transferred to Institutional
Accredit Investors who are not QIBs will be issued in the form of permanent
certificated Notes in registered form in substantially the form set forth in
Exhibit A (the "Physical Notes"). All Notes offered and sold in reliance on
Regulation S shall remain in the form of a Global Note until the consummation of
the Exchange Offer pursuant to the applicable Registration Rights Agreement;
provided, however, that all of the time periods specified in the applicable
Registration Rights Agreement to be complied with by the Issuer have been so
complied with.
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SECTION 2.02. Execution and Authentication; Aggregate Principal
Amount.
Two Officers, or an Officer and an Assistant Secretary of the Issuer
and each Guarantor and the Subordinated Guarantor, 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 Issuer, the Guarantees for the Guarantors and the
Subordinated Guarantee for the Subordinated Guarantor by manual or facsimile
signature.
If an Officer or Assistant Secretary whose signature is on a Note, a
Guarantee or a Subordinated Guarantee 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 $550,000,000 in one or more
series, (ii) Private Exchange Notes from time to time only in exchange for a
like principal amount of Initial Notes and (iii) Unrestricted Notes from time to
time only (x) in exchange for a like principal amount of Initial Notes or (y) in
an aggregate principal amount of not more than the excess of $550,000,000 over
the sum of the aggregate principal amount of (A) Initial Notes then outstanding,
(B) Private Exchange Notes then outstanding and (C) Unrestricted Notes issued in
accordance with (iii)(x) above, in each case upon a written order of the Issuer
in the form of an Officers' Certificate of the Issuer. Each such written order
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,
Private Exchange Notes or Unrestricted Notes and whether the Notes are to be
issued as Physical Notes or Global Notes or such other information as the
Trustee may reasonably request. In addition, with respect to authentication
pursuant to clauses (ii) or (iii) of the first sentence of this paragraph, the
first such written order from the Issuer shall be accompanied by an Opinion of
Counsel of the Issuer in a form reasonably satisfactory to the Trustee stating
that the issuance of the Private Exchange Notes or the Unrestricted Notes, as
the case may be, complies with this Indenture and has been duly authorized by
the Issuer. The aggregate principal amount
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of Notes outstanding at any time may not exceed $550,000,000, except as provided
in Sections 2.07 and 2.08.
In the event that the Issuer shall issue and the Trustee shall
authenticate any Notes issued under this Indenture subsequent to the Issue Date
pursuant to clauses (i) and (iii) of the first sentence of the immediately
preceding paragraph, the Issuer shall use its reasonable efforts to obtain the
same "CUSIP" number for such Notes as is printed on the Notes outstanding at
such time; provided, however, that if any series of Notes issued under this
Indenture subsequent to the Issue Date is determined, pursuant to an Opinion of
Counsel of the Issuer in a form reasonably satisfactory to the Trustee, to be a
different class of security than the Notes outstanding at such time for federal
income tax purposes, the Issuer may obtain a "CUSIP" number for such Notes that
is different than the "CUSIP" number printed on the Notes then outstanding.
Notwithstanding the foregoing, 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 Issuer 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
Issuer or with any Affiliate of the Issuer.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Issuer 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)
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 Issuer 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 Issuer, 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. The Issuer may act as its
own Paying Agent.
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The Issuer 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 Issuer shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Issuer fails to maintain a Registrar or Paying
Agent, or fails to give the foregoing notice, the Trustee shall act as such.
The Issuer 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. Any of
the Registrar, the Paying Agent or any other agent may resign upon 30 days'
notice to the Issuer.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Issuer 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, premium, if any, or interest on, the Notes (whether such assets
have been distributed to it by the Issuer or any other obligor on the Notes),
and the Issuer and the Paying Agent shall notify the Trustee of any Default by
the Issuer (or any other obligor on the Notes) in making any such payment. The
Issuer 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 Issuer 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. If the Trustee is not the Registrar, the Issuer 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.
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SECTION 2.06. Transfer and Exchange.
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 or 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; provided, however, that the Notes
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Issuer, the Trustee and the Registrar or co-Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing. To permit
registration of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Notes and each of the Guarantors shall execute a
Guarantee thereon and the Subordinated Guarantor shall execute a Subordinated
Guarantee thereon at the Registrar's or co-Registrar's request. No service
charge shall be made for any registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any transfer tax, fee 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 Sections 2.10, 3.04, 4.11, 4.12 or 9.05, in which event
the Issuer shall be responsible for the payment of such taxes).
The Registrar or co-Registrar shall not be required to register the
transfer of 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 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.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book
entry system.
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
Issuer shall issue and the Trustee shall authenticate a replacement Note and
each of the Guarantors shall execute a Guarantee thereon and the Subordi-
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nated Guarantor shall execute a Subordinated Guarantee thereon if the Trustee's
requirements are met. If required by the Trustee or the Issuer, such Holder must
provide an indemnity bond or other indemnity of reasonable tenor, sufficient in
the reasonable judgment of the Issuer, the Guarantors and the Trustee, to
protect the Issuer, the Guarantors, the Subordinated Guarantor, the Trustee or
any Agent from any loss which any of them may suffer if a Note is replaced.
Every replacement Note shall constitute an additional obligation of the Issuer,
the Guarantors and the Subordinated Guarantor.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those canceled 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 an Issuer 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, premium, if any, 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 shall be
deemed not to be outstanding and interest on them shall cease 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 Issuer or an Affiliate of the Issuer 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 owned
shall be so considered. The Issuer shall notify the Trustee, in writing, when it
or, to its knowledge, any of its Affiliates repurchases or otherwise acquires
Notes, of the aggregate principal amount of such Notes so repurchased or
otherwise acquired and such other
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information as the Trustee may reasonably request and the Trustee shall be
entitled to rely thereon.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Issuer 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 definitive Notes but may
have variations that the Issuer considers appropriate for temporary Notes and so
indicate in the Officers' Certificate. Without unreasonable delay, the Issuer
shall prepare, the Trustee shall authenticate and the Guarantors shall execute
Guarantees on, and the Subordinated Guarantor shall execute a Subordinated
Guarantee thereon upon receipt of a written order of the Issuer pursuant to
Section 2.02, definitive Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Issuer 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, shall return to the Issuer all Notes surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.07, the Issuer
may not issue new Notes to replace Notes that they have paid or delivered to the
Trustee for cancellation. If the Issuer 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. Any Notes so
acquired by or on behalf of the Issuer shall be surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
The Issuer will pay interest on overdue principal from time to time
on demand at the rate of interest then borne by the Notes. The Issuer shall, to
the extent lawful, pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
of interest then borne by the Notes. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months, and, in the case of a partial
month, the actual number of days elapsed.
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If the Issuer defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which special record date shall be the fifteenth
day next preceding the date fixed by the Issuer for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business Day.
The Issuer shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Note and the date of the proposed payment
(a "Default Interest Payment Date"), and at the same time the Issuer shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or shall make
arrangements reasonably satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such defaulted interest as
provided in this Section; provided, however, that in no event shall the Issuer
deposit monies proposed to be paid in respect of defaulted interest later than
11:00 a.m. New York City time of the proposed Default Interest Payment Date. At
least 15 days before the subsequent special record date, the Issuer shall mail
(or cause to be mailed) to each Holder, as of a recent date selected by the
Issuer, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid. Notwithstanding the
foregoing, any interest which is paid prior to the expiration of the 30-day
period set forth in Section 6.01(a) shall be paid to Holders as of the regular
record date for the Interest Payment Date for which interest has not been paid.
Notwithstanding the foregoing, the Issuer may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange.
SECTION 2.13. CUSIP Number.
The Issuer in issuing the Notes may use a "CUSIP" number, and, if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided, however, that no representation is hereby
deemed to be made by the Trustee 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 Issuer shall
promptly notify the Trustee of any change in the CUSIP number.
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SECTION 2.14. Deposit of Monies.
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date, Change of Control repurchase date and
Excess Proceeds Payment Date, the Issuer 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, Maturity Date, Redemption Date, Change
of Control repurchase date and Excess Proceeds Payment 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, Maturity Date, Redemption Date, Change of
Control repurchase date and Excess Proceeds Payment Date, as the case may be.
SECTION 2.15. Restrictive Legends.
Each Global Note and Physical Note that constitutes a Restricted
Security or is sold in compliance with Regulation S shall bear the following
legend (the "Private Placement Legend") on the face thereof until after the
second anniversary of the later of the Issue Date and the last date on which the
Issuer or any Affiliate of the Issuer was the owner of such Note (or any
predecessor security) (or such shorter period of time as permitted by Rule
144(k) under the Securities Act or any successor provision thereunder) (or such
longer period of time as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Issuer, unless otherwise
agreed by the Issuer and the Holder thereof):
THIS SECURITY 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 AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3), OR (7) UNDER THE SECURITIES ACT), (AN "ACCREDITED INVESTOR") OR (C)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY 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 XXXXXXXX
SCOTSMAN INC. (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE
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XXXXXX XXXXXX TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
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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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE.
SECTION 2.16. Book-Entry Provisions for Global Note.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Section 2.15.
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 Notes, and the Depository may be treated by the Issuer, the Trustee and
any Agent of the Issuer or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any Agent of the Issuer 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 any Note.
(b) Transfers of a Global Note shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in a Global Note may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Note if (i) the Depository notifies the Issuer that it is
unwilling or unable to continue as Depository for the Global Notes and a
successor depositary is not appointed by the Issuer within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue Physical
Notes.
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b), the Registrar shall (if one or more Physical Notes are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Issuer shall execute, the
Guarantors shall execute Guarantees on and the Subordinated Guarantor shall
execute a Subordinated Guarantee thereon, and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b), such Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Issuer shall execute,
the Guarantors shall execute Guarantees on and the Subordinated Guarantor shall
execute a Subordinated Guarantee thereon and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depository in exchange for
its beneficial interest in the Global Note, an equal aggregate principal amount
of Physical Notes of authorized denominations
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) or (c)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the legend regarding transfer restrictions applicable to the Physical
Notes set forth in Section 2.15.
(f) The 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.
SECTION 2.17. 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 after the
second anniversary of the Issue Date (provided, however, that neither the
Issuer nor
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any Affiliate of the Issuer has held any beneficial interest in such Note,
or portion thereof, at any time on or prior to the second anniversary of
the Issue Date) 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 C hereto and any legal opinions and
certifications required thereby (except in the case of a transfer of a
Note subsequent to the initial transfer, the provisions of paragraph 1 of
Exhibit C shall not apply) 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 D 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)
written instructions given in accordance with the Depository's 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 such Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (b) the Issuer shall execute, the Guarantors shall execute the
Guarantees on and the Subordinated Guarantor shall execute a Subordinated
Guarantee thereon and the Trustee shall authenticate and make available for
delivery 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 Issuer 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
Issuer 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
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Rule 144A and acknowledges that it has received such information regarding
the Issuer as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that 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 a Global Note, upon receipt by the Registrar
of written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of such 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 requested transfer is after the second anniversary of the Issue
Date (provided, however, that neither the Issuer nor any Affiliate of the Issuer
has held any beneficial interest in such Note, or portion thereof, at any time
prior to or on the second anniversary of the Issue Date), or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Issuer 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 2.16 or this Section 2.17.
The Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time during the
Registrar's normal business hours upon the giving of reasonable written notice
to the Registrar.
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(e) Transfers of Notes Held by Affiliates. Any certificate (i)
evidencing a Note that has been transferred to an Affiliate of an Issuer within
two years after the Issue Date, as evidenced by a notation on the Assignment
Form for such transfer or in the representation letter delivered in respect
thereof or (ii) evidencing a Note that has been acquired from an Affiliate
(other than by an Affiliate) in a transaction or a chain of transactions not
involving any public offering, shall, until two years after the last date on
which either the Issuer or any Affiliate of the Issuer was an owner of such
Note, in each case, bear a legend in substantially the form set forth in Section
2.15 hereof, unless otherwise agreed by the Issuer (with written notice thereof
to the Trustee).
SECTION 2.18. Liquidated Damages Under Registration Rights
Agreement.
Under certain circumstances, the Issuer shall be obligated to pay
certain liquidated damages to the Holders, all as set forth in the applicable
Registration Rights Agreement applicable to such Holders. The terms thereof are
hereby incorporated herein by reference. Notwithstanding such incorporation by
reference, the Trustee shall have no duties or obligations under any
Registration Rights Agreement. The Issuer shall notify the Trustee if any
Additional Interest is payable on the Notes.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Paragraph 6 of the
Notes and Section 3.03, 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 Issuer shall give each notice provided for in this Section 3.01
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 stating that such redemption
shall comply with the conditions contained herein and in the Notes.
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SECTION 3.02. Selection of Notes To Be Redeemed.
In the event that less than all of the Notes are to be redeemed at
any time, selection of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which such Notes are listed or, if such Notes are not then listed on
a national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, however, that no Notes of
original principal amount of U.S. $1,000 or less shall be redeemed in part;
provided, further, that if a partial redemption is made with the proceeds of a
Public Equity Offering, selection of the Notes or portions thereof for
redemption shall be made by the Trustee only on a pro rata basis or on as nearly
a pro rata basis as is practicable (subject to DTC procedures), unless such
method is otherwise prohibited. Notice of redemption shall be mailed by
first-class mail at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address. If any
Note is to be redeemed in part only, the notice of redemption that relates to
such Note shall state the portion of the principal amount thereof to be
redeemed. A new Note in a principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Note. On and after the Redemption Date, interest will cease to
accrue on Notes or portions thereof called for redemption as long as the Issuer
has deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to this Indenture.
SECTION 3.03. Optional Redemption.
(a) Except as set forth in the following paragraph, the Notes will
not be redeemable at the option of the Issuer prior to June 1, 2002. Thereafter,
the Notes will be redeemable, at the Issuer's option, in whole or in part, at
any time and from time to time, upon not less than 30 nor more than 60 days'
prior notice mailed by first-class mail to each Holder's registered address, at
the following redemption prices (expressed as percentages of the principal
amount thereof), 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), if redeemed during
the twelve-month period commencing on June 1 of the years set forth below:
Year Percentage
---- ----------
2002............................ 104.938%
2003............................ 102.469%
2004 and thereafter............. 100.000%
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(b) At any time, or from time to time, on or prior to June 1, 2000,
the Issuer may, at its option, redeem up to $160 million aggregate principal
amount of the Notes with the proceeds of one or more Public Equity Offerings
(provided that if the Public Equity Offering is a public offering of any class
of common stock of Holdings or another issuer, a portion of the Net Cash
Proceeds thereof equal to the amount required to redeem any such Notes is
contributed to the equity capital of the Issuer) at a redemption price
(expressed as a percentage of principal amount) of 109.875% plus accrued and
unpaid interest thereon, if any, to the Redemption Date (subject to the right of
Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date); provided, however, that at least $240 million
aggregate principal amount of Notes originally issued remains outstanding
immediately after any such redemption (it being expressly agreed that for
purposes of determining whether this condition is satisfied, Notes owned by the
Issuer shall be deemed not to be outstanding). In order to effect the foregoing
redemption with the proceeds of any Public Equity Offering, the Issuer shall
make such redemption not more than 120 days after the consummation of any such
Public Equity Offering.
At any time on or prior to June 1, 2002, the Notes may also be
redeemed as a whole but not in part at the option of the Issuer upon the
occurrence of a Change of Control, upon not less than 30 nor more than 60 days'
prior notice (exercisable no later than 30 days after such Change of Control)
mailed by first-class mail to each Holder's registered address, at a redemption
price equal to 100% of the principal amount thereof plus the Applicable Premium
as of, and accrued and unpaid interest, if any, to, the Redemption Date (subject
to the right of Holders of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date)
"Applicable Premium" means, with respect to a Note at any Redemption
Date, the greater of (i) 1.0% of the principal amount of such Note and (ii) the
excess of (A) the present value at such time of (1) the redemption price of such
Note at 2002 as described above plus (2) all required interest payments due on
such Note through June 1, 2002, computed by using a discount rate equal to the
Treasury Rate plus 100 basis points, over (B) the principal amount of such Note.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at lease two business days prior
to the Redemption Date (or, if such Statistical Release is no longer published,
any publicly available source of similar market
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data)) most nearly equal to the period from the Redemption Date to June 1, 2002;
provided, however, that if the period from the Redemption Date to June 1, 2002
is not equal to the constant maturity of a United States Treasury security for
which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such yields
are given, except that if the period from the Redemption Date to June 1, 2002 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
SECTION 3.04. Notice of Redemption.
At least 30 days but not more than 60 days before the Redemption
Date, the Issuer shall mail or cause to be mailed a notice of redemption by
first class mail to each Holder of Notes to be redeemed at its registered
address, with a copy to the Trustee and any Paying Agent. At the Issuer's
request, the Trustee shall give the notice of redemption in the Issuer's name
and at the Issuer's expense. The Issuer shall provide such notices of redemption
to the Trustee at least five days before the intended mailing date.
Each notice of redemption shall identify (including the CUSIP
number) the Notes to be redeemed 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 Issuer defaults in making the redemption
payment, interest on Notes or applicable portions thereof 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 as of the Redemption Date, if any,
upon surrender to the Paying Agent of the Notes redeemed;
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(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 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 are 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.
The Issuer will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes.
SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.04,
such notice of redemption shall be irrevocable and Notes called for redemption
become due and payable on the Redemption Date and at the redemption price plus
accrued interest as of such date, if any. Upon surrender to the Trustee or
Paying Agent, such Notes called for redemption shall be paid at the redemption
price plus 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. Interest shall accrue on or after the Redemption
Date and shall be payable only if the Issuer defaults in payment of the
redemption price.
SECTION 3.06. Deposit of Redemption Price.
On or before the Redemption Date and in accordance with Section
2.14, the Issuer 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
Issuer 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.
Unless the Issuer fails to comply with the preceding paragraph and
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.
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SECTION 3.07. 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.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
(a) The Issuer shall pay the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes and
in this Indenture.
(b) 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 holds,
prior to 11:00 a.m. New York City time 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 or the Notes.
(c) Notwithstanding anything to the contrary contained in this
Indenture, the Issuer, the Guarantor or the Subordinated Guarantor may, to the
extent they are 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 Issuer shall maintain the office or agency required under
Section 2.03. The Issuer 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 Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, any presentations,
surrenders, notices and demands in respect of the Notes may be made or served at
the address of the Trustee set forth in Section 10.02.
SECTION 4.03. Corporate Existence.
Except as provided in Article Five, the Issuer shall do or shall
cause to be done all things reasonably necessary to preserve and keep in full
force and effect its corporate exis-
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ence and the corporate, partnership or other existence of each Restricted
Subsidiary in accordance with the respective organizational documents of the
Issuer and each such Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Issuer and each Restricted Subsidiary;
provided, however, that the Issuer and the Restricted Subsidiaries shall not be
required to preserve any such right, or the corporate, partnership, limited
liability or other existence (other than, except as provided in Article Five,
the existence of the Issuer), if the Issuer or such Restricted Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuer and its Restricted Subsidiaries, taken as a whole,
and that the loss thereof does not, and will not have, a material adverse effect
on the Holders.
SECTION 4.04. Compliance Certificate; Notice of Default.
(a) The Issuer shall deliver to the Trustee, within 120 days after
the end of its fiscal year, an Officers' Certificate of the Issuer (provided,
however, that one of the signatories to each such Officers' Certificate shall be
the Issuer's principal executive officer, principal financial officer or
principal accounting officer), as to such Officers' knowledge of the Issuer's
and the Restricted Subsidiaries' compliance with all conditions and covenants
under this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and in the event any Default or Event of Default
exists, such Officers shall specify the nature of such Default or Event of
Default. Each such Officers' Certificate shall also notify the Trustee should
the Issuer elect to change the manner in which it fixes its fiscal year end.
(b) So long as not contrary to the then generally accepted auditing
and accounting standards, the annual financial statements delivered pursuant to
Section 4.05 shall be accompanied by a written report of the Issuer's
independent public accountants (who shall be a firm of established national
reputation) stating (A) that their audit examination has included a review of
the terms of this Indenture and the form of the Notes as they relate to
accounting matters, and (B) whether, in connection with their audit examination,
any Default or Event of Default has come to their attention and if such a
Default or Event of Default has come to their attention, specifying the nature
and period of existence thereof; provided, however, that, without any
restriction as to the scope of the audit examination, such independent certified
public accountants shall not be liable by reason of any failure to obtain
knowledge of any such Default or Event of Default that would not be disclosed in
the course of an audit examination
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conducted in accordance with generally accepted auditing standards.
(c) If any Default or Event of Default has occurred and is
continuing, the Issuer shall deliver to the Trustee, at its address set forth in
Section 10.02 hereof, by registered or certified mail or by facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action within 30 days of its
becoming aware of such occurrence.
SECTION 4.05. SEC Reports.
Notwithstanding that the Issuer may not be, or may not be required
to remain, subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Issuer shall file or continue to file with the SEC and provide
the Trustee and Holders (upon the written request of such Holder) with such
annual reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such information, documents and reports to
be so filed and provided at the times specified for the filing of such
information, documents and reports under such Sections. The Issuer also shall
comply with the other provisions of TIA ss. 314(a).
SECTION 4.06. Waiver of Stay, Extension or Usury Laws.
The Issuer 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 Issuer 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 Issuer 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 4.07. Limitation on Restricted Payments.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to make a Re-
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tricted Payment if at the time the Issuer or such Restricted Subsidiary makes
such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Issuer is not able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.09(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of the
fiscal quarter immediately following the fiscal quarter during which
the Notes are originally issued to the end of the most recent fiscal
quarter for which financial statements are available prior to the
date of such Restricted Payment (or, in case such Consolidated Net
Income shall be a deficit, minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the Issuer
from the issuance or sale of its Capital Stock (other than
Disqualified Stock) and the aggregate cash received by the Issuer as
a capital contribution from its shareholders, in each case
subsequent to the Issue Date (other than an issuance or sale to a
Subsidiary of the Issuer and other than an issuance or sale to an
employee stock ownership plan or to a trust established by the
Issuer or any of its Subsidiaries for the benefit of their
employees);
(C) the amount by which Indebtedness of the Issuer is reduced
on the Issuer's balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Issuer) subsequent to the Issue Date, of
any Indebtedness of the Issuer for Capital Stock (other than
Disqualified Stock) of the Issuer (less the amount of any cash, or
the fair value of any other property other than such Capital Stock,
distributed by the Issuer upon such conversion or exchange);
(D) an amount equal to the sum of (i) the net reduction in
Investments in any Person resulting from dividends, repayments of
loans or advances or other transfers of assets (including any sale
of such Investment), in each case to the Issuer or any Restricted
Subsidiary, and (ii) the portion (propor-
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ionate to the Issuer's equity interest in such Subsidiary) of the
fair market value of the net assets of an Unrestricted Subsidiary at
the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any Person (including any Unrestricted
Subsidiary), the amount of Investments previously made in such
Person (and treated as a Restricted Payment) by the Issuer and the
Restricted Subsidiaries; and
(E) $15 million.
(b) The provisions of this Section 4.07 shall not prohibit:
(i) (x) any Restricted Payment made to fund the transactions
contemplated by the Recapitalization (including fees and expenses), (y)
any Restricted Payment made to fund Holdings' payment of interest and
principal on the Promissory Notes, and to fund interest on, and the
redemption, repurchase, defeasance or payment upon maturity of the
Holdings Notes after the Issue Date (including any accrued interest,
principal and premium thereon) and (z) any other Restricted Payment made
by exchange for, or out of the proceeds of the substantially concurrent
sale of, or capital contribution in respect of, Capital Stock of the
Issuer (other than Disqualified Stock and other than Capital Stock issued
or sold to a Subsidiary of the Issuer or an employee stock ownership plan
or to a trust established by the Issuer or any of its Subsidiaries for the
benefit of their employees); provided, however, that (A) each such
Restricted Payment described in clauses (x),(y) and (z) shall be excluded
in the calculation of the amount of Restricted Payments and (B) if
applicable, the Net Cash Proceeds from each such sale shall be excluded
from the calculation of amounts under clause (3)(B) of Section 4.07(a);
(ii) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Indebtedness made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, Subordinated Indebtedness or Capital Stock of the Issuer which is
permitted to be Incurred pursuant to Section 4.09; provided, however, that
such purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded in the calculation of the amount of
Restricted Payments;
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(iii) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with Section 4.07(a); provided, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments;
(iv) the repurchase of shares of, or options to purchase shares of,
Common Stock of Holdings, the Issuer or any of their respective
Subsidiaries from employees, former employees, directors or former
directors of Holdings, the Issuer or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements (including employment
agreements) or plans (or amendments thereto) approved by the board of
directors of Holdings or the Issuer under which such individuals purchase
or sell or are granted the option to purchase or sell, shares of such
Common Stock (or any Restricted Payment made to Holdings solely to fund at
the time made such payments); provided, however, that the aggregate amount
of such repurchases or Restricted Payments shall not exceed $2,000,000 in
any calendar year; provided, further, however, that such repurchases or
Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments;
(v) following the initial Public Equity Offering, dividends or
Common Stock buybacks by Holdings, the Issuer or another issuer in an
aggregate amount in any year not to exceed 6% of the aggregate Net Cash
Proceeds received by the Issuer in connection with such initial Public
Equity Offering and any subsequent Public Equity Offering (or any
Restricted Payment made to Holdings or such other issuer solely to fund at
the time made such payments); provided, however, that at the time of
payment of such dividends, no other Default shall have occurred and be
continuing (or result therefrom); provided, further, however, that such
dividends or common stock buybacks shall be included in the calculation of
the amount of Restricted Payments;
(vi) repurchases of Capital Stock deemed to occur upon exercise of
stock options if such Capital Stock represents a portion of the exercise
price of such options; provided, however, that such repurchase shall be
excluded in the calculation of the amount of Restricted Payments;
(vii) any payment by the Issuer to Holdings pursuant to the Tax
Sharing Agreement; provided, however, that the amount of any such payment
shall not exceed the amount of taxes that the Issuer would have been
liable for on a stand-alone basis; provided, further, however, that such
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dividends shall be excluded in the calculation of the amount of Restricted
Payments; and
(viii) dividends to Holdings to the extent required to pay for
general corporate and overhead expenses incurred by Holdings; provided
however, that such dividends shall not exceed $1,000,000 in any calendar
year; provided, further, however, that such dividends shall be excluded in
the calculation of the amount of Restricted Payments.
SECTION 4.08. Limitation on Affiliate Transactions.
(a) The Issuer shall not, and shall not permit any Restricted
Subsidiary to, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property, employee compensation
arrangements or the rendering of any service) with any Affiliate of the Issuer
(an "Affiliate Transaction") unless the terms thereof (1) are no less favorable
to the Issuer or such Restricted Subsidiary than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person who is not
such an Affiliate, (2) if such Affiliate Transaction involves an amount in
excess of $5.0 million, (i) are set forth in writing and (ii) have been approved
by a majority of the members of the Board of Directors having no personal stake
in such Affiliate Transaction and (3) if such Affiliate Transaction involves an
amount in excess of $10.0 million, have been determined by nationally recognized
accounting or investment banking firm (an "Independent Financial Advisor") to be
fair, from a financial standpoint, to the Issuer and its Restricted
Subsidiaries. Notwithstanding clause (2)(ii) above, in the event that there are
less than two members of the Board of Directors not having a personal stake in
any Affiliate Transaction, such Affiliate Transaction shall be permitted to
exist so long as an Independent Financial Advisor has determined the terms of
such Affiliate Transaction to be fair, from a financial standpoint, to the
Issuer and its Restricted Subsidiaries.
(b) The provisions of Section 4.08(a) shall not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 4.08 or a Permitted
Investment in Holdings as described in clause (x) of the definition of Permitted
Investment, (ii) any issuance of securities, or other payments, benefits, awards
or grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved by the
Board of Directors, (iii) the grant of stock options or similar rights to
employees and directors of the Issuer pursuant to plans approved by the Board of
Directors, (iv) loans or advances to employees in the ordinary course of
business in accordance with the past
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practices of the Issuer or its Restricted Subsidiaries, but in any event not to
exceed $2.5 million in the aggregate outstanding at any one time, (v) the
payment of reasonable fees to directors of the Issuer and its Restricted
Subsidiaries who are not employees of the Issuer or its Restricted Subsidiaries,
(vi) any Tax Sharing Agreement; provided, however, that the aggregate amount
payable by the Issuer pursuant thereto shall not exceed the amount of taxes that
the Issuer would have been liable for on a stand-alone basis, (vii)
indemnification agreements with, and the payment of fees and indemnities to,
directors, officers and employees of the Issuer and its Restricted Subsidiaries,
in each case in the ordinary course of business, (viii) any employment,
non-competition or confidentiality agreement entered into by the Issuer and its
Restricted Subsidiaries with its employees in the ordinary course of business,
(ix) the payment by the Issuer of fees, expenses and other amounts to the
Permitted Holders and their respective Affiliates in connection with the
Recapitalization, (x) payments by the Issuer or any of its Restricted
Subsidiaries to the Permitted Holders (described in clause (i) of the definition
of Permitted Holders) and their Affiliates made pursuant to any financial
advisory, financing, underwriting or placement agreement, or in respect of other
investment banking activities, in each case as determined by the Board of
Directors in good faith, (xi) any Affiliate Transaction between the Issuer and a
Wholly Owned Subsidiary or between Wholly Owned Subsidiaries, (xii) any
Affiliate Transaction between the Issuer and a Restricted Subsidiary or between
Restricted Subsidiaries, in each case approved by the Board of Directors in good
faith, (xiii) execution, delivery and performance by Holdings, the Issuer, and
any Subsidiary of Holdings or the Issuer of the Recapitalization Agreement as in
effect on the Issue Date, (xiv) the pledge of any Capital Stock of Unrestricted
Subsidiaries to support the Indebtedness thereof and (xv) transactions in
connection with a Permitted Units Financing (as to which the Board approval
requirements in the definition of Permitted Units Financing will apply).
SECTION 4.09. Limitation on Indebtedness.
(a) The Issuer shall not, and shall not permit its Restricted
Subsidiaries to, Incur, directly or indirectly, any Indebtedness; provided,
however, that the Issuer may Incur Indebtedness if, on the date of such
Incurrence and after giving effect thereto, the Consolidated Coverage Ratio
exceeds 2.0 to 1.0.
(b) Notwithstanding the foregoing paragraph (a), the Issuer and its
Restricted Subsidiaries may Incur any or all of the following Indebtedness:
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(1) Indebtedness of the Issuer Incurred pursuant to the Credit
Agreement; provided, however, that, after giving effect to any such
Incurrence, the aggregate principal amount of such Indebtedness then
outstanding does not exceed the greater of $300 million or the sum of (i)
75% of the net book value of Eligible Rental Equipment of the Issuer and
its Restricted Subsidiaries and (ii) 85% of the book value of the Eligible
Accounts Receivable of the Issuer and its Restricted Subsidiaries (less
(i) the amount of net proceeds which has been received in connection with
a Permitted Units Financing permitted under clause (b)(13)(i) of this
Section 4.09 (provided that such reduction shall apply only to the extent
of any outstanding balance on such financing and for so long as such
Permitted Units Financing is in effect) and (ii) the amount of any
outstanding Attributable Debt Incurred under clause (b)(12) of this
Section 4.09);
(2) Indebtedness of the Issuer Incurred pursuant to an Interest
Rate Agreement or Currency Agreement entered into with any of the Lenders
directly related to (as determined in good faith by the Issuer)
Indebtedness Incurred pursuant to the Credit Agreement;
(3) Indebtedness owed to and held by the Issuer or a Wholly Owned
Subsidiary; provided, however, that any subsequent issuance or transfer of
any Capital Stock which results in any such Wholly Owned Subsidiary
ceasing to be a Wholly Owned Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Issuer or another Wholly Owned Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof;
(4) $400 million aggregate principal amount of the Notes issued on
the Issue Date and the Exchange Notes issued therefor and the Guarantees
thereof issued on the Issue Date;
(5) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clauses (1), (2), (3) and (4) of this Section
4.09(b));
(6) Indebtedness or Preferred Stock of a Restricted Subsidiary
Incurred and outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Issuer (other than Indebtedness or
Preferred Stock Incurred in connection with, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Re-
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tricted Subsidiary or was acquired by the Issuer); provided, however, that
on the date of such acquisition and after giving effect thereto, the
Issuer would have been able to Incur at least $1.00 of additional
Indebtedness pursuant to Section 4.09(a);
(7) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to Section 4.09(a) or pursuant to clause (2), (4), (5), (6), (8)
or (12) of this Section 4.09(b) or this clause (7); provided, however,
that to the extent such Refinancing Indebtedness directly or indirectly
Refinances Indebtedness or Preferred Stock of a Restricted Subsidiary
described in clause (6) of this Section 4.09(b), such Refinancing
Indebtedness shall be Incurred only by such Restricted Subsidiary;
(8) Hedging Obligations consisting of Interest Rate Agreements
directly related (as determined in good faith by the Issuer) to
Indebtedness permitted to be Incurred by the Issuer and its Restricted
Subsidiaries pursuant to this Indenture and Currency Agreements Incurred
in the ordinary course of business;
(9) Indebtedness (including Capitalized Lease Obligations) of the
Issuer or any Restricted Subsidiary financing the purchase, lease or
improvement of property (real or personal) or equipment (whether through
the direct purchase of assets or the Capital Stock of any Person owning
such assets), in each case Incurred no more than 180 days after such
purchase, lease or improvement of such property and any Refinancing
Indebtedness in respect of such Indebtedness; provided, however, that at
the time of the Incurrence of such Indebtedness and after giving effect
thereto, the aggregate principal amount of all Indebtedness Incurred
pursuant to this clause (9) and then outstanding shall not exceed the
greater of $40 million and 10% of Adjusted Consolidated Assets;
(10) (A) Any guarantee by the Issuer of Indebtedness of any
Restricted Subsidiary (other than the Subordinated Guarantor) so long as
the Incurrence of such Indebtedness Incurred by such Restricted Subsidiary
is permitted under the terms of this Indenture and any guarantee by any
Restricted Subsidiary of Indebtedness of the Issuer Incurred pursuant to
Section 4.09(a) or clause (b)(1), (2), (4), (5), (8), (9), (11), (12) or
(14) of this Section 4.09 or clause (b)(7) of this Section 4.09 in respect
of Indebtedness of the Issuer Incurred pursuant to clause (b)(1), (2),
(4), (5), (8) or (12) of this Section 4.09 or (B) any guarantee of the
Issuer or a Restricted Subsidiary of Indebtedness of an Unrestricted
Subsidiary or a Securitiza-
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ion Subsidiary, provided that such guarantee is recourse only to the
Capital Stock of such Unrestricted Subsidiary or Securitization Subsidiary
(and the proceeds therefrom);
(11) Indebtedness of the Issuer or any Guarantor Incurred in
connection with the acquisition of a Permitted Business and any
Refinancing Indebtedness in respect of such Indebtedness; provided,
however, that the aggregate amount of Indebtedness Incurred pursuant to
this clause (11) and then outstanding shall not exceed $10 million;
(12) Attributable Debt in respect of a Sale/Leaseback Transaction
entered into by the Issuer or any Restricted Subsidiary on or before
December 31, 1998 in respect of Rental Equipment; provided, however, that
at the time of the incurrence of such Attributable Debt and after giving
effect thereto, the aggregate principal amount of all Attributable Debt
incurred pursuant to this clause (12) and then outstanding shall not
exceed $50 million;
(13) Indebtedness of a Securitization Subsidiary pursuant to a
Permitted Units Financing, provided that after giving effect to the
Incurrence thereof, either (i) the amount of net proceeds to be received
in such Permitted Units Financing and any net proceeds for all previous
Permitted Units Financing (only to the extent of any outstanding balance
on such financing and for so long as any such Permitted Units Financing is
in effect) does not exceed the greater of $300 million or the sum of (A)
75% of the net book value of Eligible Rental Equipment of the Issuer and
its Restricted Subsidiaries and (B) 85% of the book value of the Eligible
Accounts Receivable of the Issuer and its Restricted Subsidiaries or (ii)
the Issuer could Incur at least $1.00 of Indebtedness under Section 4.09;
and
(14) Indebtedness of the Issuer, any Guarantor or the Subordinated
Guarantor (which may be but need not be issued pursuant to the Credit
Agreement) in an aggregate principal amount which, together with all other
Indebtedness of the Issuer, any Guarantor or the Subordinated Guarantor
outstanding on the date of such Incurrence (other than Indebtedness
permitted by clauses (1) through (13) of this Section 4.09(b) or Section
4.09(a)) does not exceed $50 million.
(c) For purposes of determining compliance with this Section 4.09,
(i) in the event that an item of Indebtedness meets the criteria of more than
one of the types of Indebtedness described herein (including subclauses of
different types of Indebtedness in clause (b) of this Section 4.09), the Is-
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xxxx, in its sole discretion, will classify such item of Indebtedness and only
be required to include the amount and type of such Indebtedness in one of the
above clauses (or subclauses) and (ii) an item of Indebtedness may be divided
and classified in more than one of the types of Indebtedness described herein
(including subclauses of different types of Indebtedness in clause (b) of this
Section 4.09).
(d) Notwithstanding Section 4.09(a) and Section 4.09(b), the Issuer
shall not Incur (i) any Indebtedness if such Indebtedness is subordinate or
junior in ranking in any respect to any Indebtedness, unless such Indebtedness
is expressly subordinated in right of payment to the Notes, or (ii) any Secured
Indebtedness (other than Permitted Secured Indebtedness) unless
contemporaneously therewith effective provision is made to secure the Notes
equally and ratably with such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien.
(e) Notwithstanding Section 4.09(a) and Section 4.09(b) above, a
Guarantor shall not Incur (i) any Indebtedness if such Indebtedness is
subordinate or junior in ranking in any respect to any Indebtedness of such
Guarantor, unless such Indebtedness is expressly subordinated in right of
payment to such Guarantor's Guarantee of the Notes, or (ii) any Secured
Indebtedness (other than Permitted Secured Indebtedness) unless
contemporaneously therewith effective provision is made to secure such
Guarantor's Guarantee of the Notes equally and ratably with such Secured
Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
(f) Notwithstanding paragraphs (a) and (b) above, the Subordinated
Guarantor shall not incur (i) any Indebtedness if such Indebtedness is expressly
by its terms subordinate or junior in right of payment to any Indebtedness of
the Subordinated Guarantor and senior in respect of payment to the Subordinated
Guarantee; or (ii) any Indebtedness other than Subordinated Guarantor Senior
Indebtedness and Indebtedness permitted to be Incurred by a Restricted
Subsidiary pursuant to paragraph (b) above.
SECTION 4.10. Limitation on Restrictions on Distributions from
Restricted Subsidiaries.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary (a) to pay dividends or make any other distributions on its Capital
Stock to the Issuer or a Restricted Subsidiary or pay any In-
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debtedness owed to the Issuer, (b) to make any loans or advances to the
Issuer or (c) to transfer any of its property or assets to the Issuer,
except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date (including the Credit
Agreement and related security documents and the Senior Secured Notes and
any related agreements);
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary on or prior to the date on which such
Restricted Subsidiary was acquired by the Issuer (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Issuer) and
outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (i) or (ii) of this Section 4.10 or this clause
(iii) or contained in any amendment to an agreement referred to in clause
(i) or (ii) of this Section 4.10 or this clause (iii); provided, however,
that the encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such refinancing agreement or amendment are no
less favorable to the Noteholders than encumbrances and restrictions with
respect to such Restricted Subsidiary contained in such agreements;
(iv) any such encumbrance or restriction consisting of customary
non-assignment or subletting provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the lease
or the property leased thereunder;
(v) in the case of clause (c) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages;
(vi) 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
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the Capital Stock or any assets of such Restricted Subsidiary pending the
closing of such sale or disposition;
(vii) any encumbrance or restriction pursuant to an agreement
entered into after the Issue Date governing Indebtedness Incurred by a
Restricted Subsidiary in compliance with Section 4.09; provided, however,
that the encumbrances and restrictions with respect to any Restricted
Subsidiary contained in any such agreement are no less favorable to the
Holders of the Note than encumbrances and restrictions with respect to
such Restricted Subsidiary in the Credit Agreement on the Issue Date;
(viii) any encumbrance or restriction pursuant to an agreement with
a governmental entity providing for developmental financing on terms which
are more favorable (at the time such agreement is entered into) than those
available from third party financing sources;
(ix) with respect to a Securitization Subsidiary, an agreement
relating to Indebtedness of a Securitization Subsidiary which is permitted
under Section 4.09 above or pursuant to an agreement relating to a
Permitted Units Financing by a Securitization Subsidiary; or
(x) this Indenture.
SECTION 4.11. Change of Control.
(a) Upon a Change of Control, if either (i) the Issuer does not
redeem the Notes under Section 3.03 or (ii) such Change of Control occurs after
June 1, 2002, the Issuer will be required to make an offer to repurchase Notes
at a purchase price equal to 101% of the principal amount thereof together with
accrued and unpaid interest, if any, to the date of repurchase (subject to the
right of Holders of record on the relevant Record Date to receive interest on
the relevant Interest Payment Date), in accordance with the terms contemplated
in Section 4.11(b).
(b) Within 30 days following any Change of Control (unless the
Issuer has mailed a redemption notice with respect to all the outstanding Notes
in connection with such Change of Control), the Issuer shall mail or shall cause
to be mailed a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Issuer to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase
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(subject to the right of Holders of record on the relevant Record Date to
receive interest on the relevant Interest Payment Date);
(2) the circumstances and relevant facts regarding such Change of
Control;
(3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Issuer, consistent with this
Section, that a Holder must follow in order to have its Notes purchased.
(c) Holders electing to have a Note purchased will be required to
surrender the Note, together with the form entitled "Option of Holder to Elect
Purchase" on the reverse side of the Note completed, to the Issuer at the
address specified in the notice at least three Business Days prior to the
purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Issuer receives not later than three Business Days prior to the
purchase date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note which was delivered for purchase by the
Holder and a statement that such Holder is withdrawing his election to have such
Note purchased.
(d) On the purchase date, all Notes purchased by the Issuer under
this Section shall be delivered by the Trustee for cancellation, and the Issuer
shall pay the purchase price plus accrued and unpaid interest, if any, to the
Holders entitled thereto.
(e) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section 4.11, the Issuer shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.11 by virtue thereof.
SECTION 4.12. Limitation on Sale of Assets and Subsidiary Stock.
(a) In the event and to the extent that the Net Available Cash
received by the Issuer or any Restricted Subsidiary from one or more Asset
Dispositions occurring on or after the Issue Date in any period of 12
consecutive months ex-
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ceeds the greater of $40 million or 10% of Adjusted Consolidated Assets as of
the beginning of such 12-month period, then the Issuer shall (i) no later than
360 days after the date such Net Available Cash so received exceeds such $40
million or 10% of Adjusted Consolidated Assets (A) apply an amount equal to such
excess Net Available Cash to repay any Indebtedness (other than Subordinated
Indebtedness) of the Issuer or of any Restricted Subsidiary, in each case owing
to a Person other than the Issuer or any Affiliate of the Issuer, or (B) invest
or commit to invest an equal amount, or the amount not so applied pursuant to
clause (A), in Additional Assets; provided, however, that in the case of any
commitment to invest, such investment must be made within six months thereafter,
and any amount not so invested shall be treated as Excess Proceeds (as defined
below); and (ii) apply such excess Net Available Cash (to the extent not applied
pursuant to clause (i)) as provided in the following paragraphs of this Section
4.12. The amount of such excess Net Available Cash required to be applied during
the applicable period and not applied as so required by the end of such period
shall constitute "Excess Proceeds."
(b) (i) If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer
totals at least $20 million, the Issuer must, not later than the fifteenth
Business Day of such month, make an offer (an "Excess Proceeds Offer") to
purchase from the Holders on a pro rata basis an aggregate principal amount of
Notes equal to the Excess Proceeds (rounded down to the nearest multiple of
$1,000) on such date, at a purchase price equal to 100% of the principal amount
of such Notes, plus, in each case, accrued and unpaid interest (if any) to the
date of purchase (the "Excess Proceeds Payment").
(ii) The Issuer shall commence any Excess Proceeds Offer with respect
to the Notes by mailing or causing to be mailed a notice to the Trustee and each
Holder stating: (A) that the Excess Proceeds Offer is being made pursuant to
this Section 4.12 and that all Notes validly tendered will be accepted for
payment on a pro rata basis; (B) the purchase price and the date of purchase
(which shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed) (the "Excess Proceeds Payment Date"); (C)
that any Note not tendered will continue to accrue interest pursuant to its
terms; (D) that, unless the Issuer defaults in the payment of the Excess
Proceeds Payment, any Note accepted for payment pursuant to the Excess Proceeds
offer shall cease to accrue interest on and after the Excess Proceeds Payment
Date; (E) that Holders electing to have a Note purchased pursuant to the Excess
Proceeds Offer will be required to surrender the Note, together with the form
entitled "Option of Holder to Elect Purchase" on the reverse side of the Note
completed, to
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the Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day immediately preceding the Excess Proceeds
Payment Date; (F) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Excess Proceeds Payment Date, a facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (G) that Holders
whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered; provided,
however, that each Note purchased and each new Note issued shall be in a
principal amount of $1,000 or integral multiples thereof.
(iii) On the Excess Proceeds Payment Date, the Issuer shall (A) accept
for payment on a pro rata basis Notes or portions thereof tendered pursuant to
the Excess Proceeds Offer, (B) deposit with the Paying Agent money sufficient to
pay the purchase price of all Notes or portions thereof so accepted, and (C)
deliver, or cause to be delivered, to the Trustee all Notes or portions thereof
so accepted together with an Officers' Certificate specifying the Notes or
portions thereof so accepted for payment by the Issuer. The Paying Agent shall
promptly mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price, and the Trustee shall promptly authenticate and make
available for delivery to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; provided, however, that each
Note purchased and each new Note issued shall be in a principal amount of $1,000
or integral multiples thereof. The Issuer will publicly announce the results of
the Excess Proceeds Offer as soon as practicable after the Excess Proceeds
Payment Date.
(iv) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations thereunder in the event that such Excess Proceeds are received by
the Issuer under this Section 4.12 and the Issuer is required to repurchase
Notes as described above. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section 4.12, the
Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.12 by
virtue thereof.
(c) In the event of the transfer of substantially all (but not all)
the property and assets of the Issuer as an entirety to a Person in a
transaction permitted by Section 5.01, the Successor Issuer shall be deemed to
have sold
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the properties and assets of the Issuer not so transferred for purposes of this
Section 4.12, and shall comply with the provisions of this Section 4.12 with
respect to such deemed sale as if it were an Asset Disposition and the Successor
Issuer shall be deemed to have received Net Available Cash in an amount equal to
the fair market value (as determined in good faith by the Board of Directors) of
the properties and assets not so transferred or sold.
SECTION 4.13. Limitation on Sale or Issuance of Capital Stock of
Restricted Subsidiaries.
The Issuer shall not sell or otherwise dispose of any Capital Stock
of a Restricted Subsidiary, and shall not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell or otherwise dispose of any of its
Capital Stock except (i) to the Issuer or a Wholly Owned Subsidiary or to any
director of a Restricted Subsidiary to the extent required as director's
qualifying shares, (ii) if, immediately after giving effect to such issuance,
sale or other disposition, neither the Issuer nor any of its Restricted
Subsidiaries owns any Capital Stock of such Restricted Subsidiary, (iii) if,
immediately after giving effect to such issuance, sale or other disposition,
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and any Investment in such Person remaining after giving effect thereto would
have been permitted to be made under Section 4.07 if made on the date of such
issuance, sale or other disposition or (iv) any sale of Capital Stock in
connection with a Permitted Units Financing.
SECTION 4.14. Limitation on Liens.
The Issuer shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien on any assets of the Issuer or any Restricted Subsidiary 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
(other than, in each case, Permitted Liens).
SECTION 4.15. Additional Guarantees.
The Issuer will cause each Subsidiary which becomes a Guarantor
after the Issue Date (i) to execute and deliver to the Trustee a supplemental
indenture, in form reasonably satisfactory to the Trustee, pursuant to which
such Subsidiary shall unconditionally guarantee all of the Issuer's obligations
under the Notes and the Indenture on the terms set forth in the Indenture and
(ii) to deliver to the Trustee an opinion of coun-
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sel that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Subsidiary. Thereafter, such Subsidiary shall be
a Guarantor for all purposes of this Indenture until it ceases to be such
pursuant to the definition of Guarantor contained herein.
SECTION 4.16. Activities of the Issuer and the Restricted
Subsidiaries.
The Issuer shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than developing, owning, engaging in and
dealing with a Permitted Business.
SECTION 4.17. Activities of Subordinated Guarantor.
(a) The Issuer shall not permit the Subordinated Guarantor to, and
the Subordinated Guarantor shall not: (i) engage in any activity other than
acquiring, owning, holding, managing, marketing, maintaining, leasing, selling
or disposing of Rental Equipment and activities directly incidental thereto
(including leasing such Rental Equipment to the Issuer or any of its
Subsidiaries) or (ii) incur any Indebtedness other than Indebtedness incurred in
compliance with Section 4.09.
(b) Neither the Issuer nor any of the Restricted Subsidiaries will
sell, transfer or otherwise convey to the Subordinated Guarantor any of its or
their respective assets other than Rental Equipment (and related leases) which
Rental Equipment, at the time of transfer, (x) is not evidenced by a certificate
of title under applicable motor vehicle registration, certificate of title and
other applicable state laws or (y) if evidenced by a certificate of title as
described in the preceding clause (x), where counsel to the Issuer is unable to
conclude that the notation of a security interest thereon (or another similar
procedure) is effective under applicable state law to create a fully perfected
security interest therein.
(c) All Rental Equipment (and related leases) sold, transferred or
otherwise conveyed by the Issuer or any of the Restricted Subsidiaries to the
Subordinated Guarantor shall be transferred, sold or otherwise conveyed only by
way of a capital contribution to the common equity of the Subordinated
Guarantor.
(d) The Issuer shall not permit the Subordinated Guarantor to, and
the Subordinated Guarantor shall not, have any Subsidiaries.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger and Consolidation.
The Issuer shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions, all
or substantially all its assets to, any Person (including Holdings), unless:
(i) the resulting, surviving or transferee Person (the "Successor
Issuer") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Issuer (if not the Issuer) shall expressly assume, by an
indenture supplemental thereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, all the obligations of the
Issuer under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Issuer or any Subsidiary as a result of such transaction as having been
Incurred by such Successor Issuer or such Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Issuer would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.09(a);
(iv) immediately after giving effect to such transaction, the
Successor Issuer shall have Consolidated Net Worth in an amount that is
not less than the Consolidated Net Worth of the Issuer prior to such
transaction; and
(v) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
Notwithstanding clause (iii) above, a Wholly-Owned Subsidiary (other
than the Subordinated Guarantor) may be consolidated with or merged into the
Issuer and the Issuer may consolidate with or merge with or into (A) another
Person, if such Person is a single purpose corporation that has not conducted
any business or Incurred any Indebtedness or other li-
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abilities and such transaction is being consummated solely to change the state
of incorporation of the Issuer and (B) Holdings; provided, however, that, in the
case of clause (B), (x) Holdings shall not have owned any assets other than the
Capital Stock of the Issuer (and other immaterial assets incidental to its
ownership of such Capital Stock) or conducted any business other than owning the
Capital Stock of the Issuer, (y) Holdings shall not have any Indebtedness or
other liabilities (other than ordinary course liabilities incidental to its
ownership of the Capital Stock of the Issuer) and (z) immediately after giving
effect to such consolidation or merger, the Successor Issuer shall have a pro
forma Consolidated Coverage Ratio that is not less than the Consolidated
Coverage Ratio of the Issuer immediately prior to such consolidation or merger;
and, provided further, that the Subordinated Guarantor may be consolidated with,
may be merged into or may transfer all or substantially all its assets to the
Issuer with the consent of the holders of all Subordinated Guarantor Senior
Indebtedness then outstanding (in which case, if such consent has been given,
the Subordinated Guarantee (including, without limitation, the provisions of
Section 11.02) shall terminate and be extinguished).
The Successor Issuer shall be the successor to the Issuer and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture, but the predecessor Issuer in the case of a
conveyance, transfer or lease shall not be released from the obligation to pay
the principal of and interest on the Notes.
The Issuer shall not permit any Guarantor to, and no Guarantor
shall, consolidate with or merge with or into, or convey, transfer or lease, in
one transaction or a series of transactions, all or substantially all its assets
to, any Person other than the Issuer or any other Guarantor, unless:
(i) the resulting, surviving, or transferee Person (the "Successor
Guarantor") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Guarantor (if not the Issuer) shall expressly assume, by
an indenture supplemental thereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, all the obligations of the
Guarantor on the Guarantee and in this Indenture;
(ii) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
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(iii) immediately after giving effect to such transaction, and the
use of any proceeds therefrom on a pro forma basis, the Issuer could
satisfy the provisions of clauses (iii) and (iv) of the first paragraph of
this Section 5.01.
Except as provided above in the last proviso to the second paragraph
of this Section 5.01, the Issuer shall not permit the Subordinated Guarantor to,
and the Subordinated Guarantor shall not, consolidate with or merge into or
with, or convey, transfer or lease, in any transaction or a series of related
transactions, all or substantially all of its assets to any Person; provided
that the Subordinated Guarantor may be consolidated with, merged with or into,
or transfer all or substantially all its assets to, any Guarantor with the
consent of the holders of all Subordinated Guarantor Senior Indebtedness then
outstanding (in which case, if such consent has been given, the provisions of
the Subordinated Guarantee and Section 11.02 of this Indenture shall terminate
and be extinguished).
Notwithstanding the above provisions, (x) one or more transfers of
assets to the Subordinated Guarantor pursuant to Section 4.17(b) shall be
permitted and (y) the Subordinated Guarantor may lease any or all of its assets
to the Issuer or any Wholly Owned Subsidiary of the Issuer at any time.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Issuer defaults in any payment of interest on any Note when
the same becomes due and payable and such default continues for a period
of 30 days;
(2) the Issuer defaults in the payment of the principal of any Note
when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control or an Excess Proceeds Payment),
whether or not such payment shall be prohibited by Article Eleven;
(3) the Issuer fails to comply with Section 5.01;
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(4) the Issuer fails to comply with Section 4.05, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13 or 4.17 (other than a failure to purchase Notes
when required under Section 4.11 or 4.12) and such failure continues for
30 days after the notice specified below;
(5) the Issuer fails to comply with any of its agreements in the
Notes or this Indenture and such failure continues for 60 days after the
notice specified below;
(6) Indebtedness of the Issuer or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $25.0 million
(the "cross acceleration provisions");
(7) the Issuer or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Issuer or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Issuer or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
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(9) any judgment or decree for the payment of money in excess of
$25.0 million (net of applicable insurance coverage provided that the
applicable insurance carriers have acknowledged coverage) is rendered
against the Issuer or any Significant Subsidiary, remains outstanding for
a period of 60 days following the entry of such judgment or decree and is
not discharged, waived or the execution thereof stayed within 10 days
after the notice specified below or an enforcement proceeding is commenced
upon such judgment or decree (the "judgment default provision"); or
(10) any of the Guarantees or the Subordinated Guarantee ceases to
be in full force and effect or any of the Guarantees or the Subordinated
Guarantee is declared to be null and void and unenforceable or any of the
Guarantees or the Subordinated Guarantee is found to be invalid, in each
case by a court of competent jurisdiction in a final non-appealable
judgment, or any of the Guarantors or the Subordinated Guarantor denies
its liability under its Guarantee or the Subordinated Guarantee (other
than by reason of release of a Guarantor or the Subordinated Guarantor in
accordance with the terms of this Indenture).
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
A Default under clause (4), (5) or (9) above is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the outstanding Notes notify the Issuer of the Default and the Issuer does not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Issuer shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any Event of Default under clause (6) above and any event which with the giving
of notice or the lapse of time would become an Event of Default under clause
(4), (5) or (9) above, its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing, the Trustee by
notice to the Issuer, or the Holders of at least 25% in principal amount of the
outstanding Notes by notice to the
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Issuer and the Trustee, may declare the principal of and accrued interest on all
the outstanding Notes to be due and payable immediately. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(7) or (8) with respect to the
Issuer occurs, the principal of and interest on all the 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 Noteholders. The Holders of a majority in
principal amount of the Notes by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. 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 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 of the Notes 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 provided by law.
SECTION 6.04. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Notes) by notice to the Trustee may waive an existing Default
and its consequences except (i) a Default in the payment of the principal of or
interest or premium on a Note or (ii) a Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Noteholder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exer-
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cising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders of the Notes or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification reasonably satisfactory to it against all losses and expenses
caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this
Indenture or the Notes except to enforce the right to receive payment of
principal, premium (if any) or interest when due unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the 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 Holder or Holders offer to the Trustee reasonable security
or indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the outstanding
Notes do not give the Trustee a direction inconsistent with the request
during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another 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 the Notes held by
such Holder, on or after the respective due dates expressed in the Notes, or to
bring suit for the enforcement of any such payment on or after such
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respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(l) or (2) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Issuer for the whole amount then due and
owing (together with interest on any unpaid interest to the extent lawful) and
the amounts provided for in Section 7.07.
SECTION 6.09. 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 and the Holders allowed in any judicial proceedings relative to the
Issuer, any Guarantor, the Subordinated Guarantor, their respective creditors or
their respective property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities.
If the Trustee collects or property pursuant to this Article Six, it
shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of the Notes for amounts due and unpaid on the
Notes for principal (including any premium) and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal (including any premium) and interest,
respectively;
THIRD: without duplication, to Holders for any other Obligations
owing to Holders under this Indenture or the Notes; and
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FOURTH: the balance, if any, to the Issuer or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of the Notes pursuant to this Section. At least 15 days before such
record date, the Issuer shall mail or cause to be mailed to each Noteholder and
the Trustee a notice that states the record date, the payment date and amount to
be paid.
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 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of 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 that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the
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statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, 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 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 and
Section 7.02.
(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
Issuer. 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 rely and shall be fully protected in acting or
refraining from acting upon any docu-
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ment 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 of its selection and may require an Officers' Certificate or
an Opinion of Counsel, which shall conform to Sections 10.04 and 10.05.
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 Issuer, to examine the books, records, and premises of the
Issuer, personally or by agent or attorney and to consult with the
officers and representatives of the Issuer, including the Issuer's
accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any of its
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 have offered to the Trustee reasonable
indemnity 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) Delivery of reports, information and documents to the Trustee
under Section 4.05 is for informational
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purposes only and the Trustee's receipt of the foregoing shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of their covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers' Certificates).
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 Holdings, the Issuer, or
any of the Subsidiaries, 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 Issuer's
use of the proceeds from the Notes, and it shall not be responsible for any
statement of the Issuer in this Indenture or the Notes other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to a Trust Officer, the Trustee shall mail to each Holder notice of
the uncured Default or Event of Default within 90 days after obtaining knowledge
thereof. 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, a
Default in payment on the Change of Control repurchase date or on the Excess
Proceeds Payment Date pursuant to an Excess Proceeds Offer, 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. The foregoing sentence of this Section 7.05 shall be in lieu of
the proviso to ss. 315(b) of the TIA and such proviso to ss. 315(b) of the TIA
is hereby expressly excluded from this Indenture and the Notes, as permitted by
the TIA.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after January 1 of each year beginning with 1998, the
Trustee shall, to the extent that any of the events described in TIA ss. 313(a)
occurred within the previous
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twelve months, but not otherwise, mail to each Holder a brief report dated as of
such date that complies with TIA ss. 313(a). The Trustee also shall comply with
TIA xx.xx. 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Issuer and filed with the Commission and each stock exchange, if
any, on which the Notes are listed.
The Issuer shall promptly notify the Trustee if the Notes become
listed on any stock exchange and the Trustee shall comply with TIA ss. 313(d).
SECTION 7.07. Compensation and Indemnity.
The Issuer shall pay to the Trustee from time to time such
compensation for its services as has been agreed to in writing signed by the
Issuer and the Trustee. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Issuer 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, counsel, accountants and experts.
The Issuer shall indemnify each of the Trustee (or any predecessor
Trustee) and its agents, employees, stockholders, Affiliates and directors and
officers for, and hold them each harmless against, any and all loss, liability,
damage, claim or expense (including reasonable fees and expenses of counsel),
including taxes (other than taxes based on the income of the Trustee), incurred
by them except for such actions to the extent caused by any negligence, bad
faith or willful misconduct on their part, arising out of or in connection with
the acceptance or administration of this trust including the reasonable costs
and expenses of 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 Issuer promptly of any claim
asserted against the Trustee for which it may seek indemnity. The Issuer shall
defend the claim and the Trustee shall cooperate and may participate in the
defense. Alternatively, the Trustee may at its option have separate counsel of
its own choosing and the Issuer shall pay the reasonable fees and expenses of
such counsel.
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
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are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuer. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee and appoint a successor Trustee with the Issuer's consent, by so
notifying the Issuer and the Trustee. The Issuer 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.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer 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 aggregate principal
amount of the outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately after that,
the retiring Trustee shall 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. The Issuer shall mail notice of such successor Trustee's appointment
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 Issuer or the
Holders of at least 10% in aggregate principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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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 any resignation or replacement of the Trustee
pursuant to this Section 7.08, the Issuer'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, however, 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
requirement of TIA xx.xx. 310(a)(1), (2) and (5). The Trustee (or, in the case
of a Trustee that is a subsidiary of another Bank or a corporation included in a
bank holding company system, the related bank or 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, and have a Corporate Trust
Office in the City of New York. In addition, if the Trustee is a subsidiary of
another Bank or a corporation included in a bank holding company system, the
Trustee, independently of such bank or bank holding company, shall meet the
capital requirements of TIA ss. 310(a)(2). The Trustee shall comply with TIA ss.
310(b); provided, however, that there shall be excluded from the operation of
TIA ss. 310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Issuer, a
Guarantor or the Subordinated Guarantor are outstanding, if the requirements for
such exclusion set forth in TIA ss. 310(b)(1) are met. The provisions of TIA ss.
310 shall apply to the Issuer, the Guarantors and the Subordinated Guarantor, as
obligors of the Notes.
SECTION 7.11. Preferential Collection of Claims Against Issuer.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee
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who has resigned or been removed shall be subject to TIA ss. 311(a) to the
extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Issuer's Obligations.
This Indenture will be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
the Notes, as expressly provided for in this Indenture) as to all outstanding
Notes when (a) either (i) all Notes, theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the Issuer
or discharged from such trust) have been delivered to the Trustee for
cancellation or (ii) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of deposit together with
irrevocable instructions from the Issuer directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be; (b)
the Issuer has paid all other sums payable under this Indenture by the Issuer;
and (c) the Issuer has delivered to the Trustee an officers' certificate and an
opinion of counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied
with; provided, however, that such counsel may rely, as to matters of fact, on a
certificate or certificates of officers of the Issuer.
The Issuer may, at its option and at any time, elect to have its
obligations and the obligations of the Guarantors and the Subordinated Guarantor
discharged with respect to the Notes, the Guarantees, the Subordinated Guarantee
and this Indenture ("Legal Defeasance"). Such Legal Defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Notes, and satisfied all of its obligations with
respect to the Notes, except for (a) the rights of Holders to receive payments
in respect of the principal of and interest on the Notes when such payments are
due, (b) the Issuer's obligations with respect to the Notes concerning issuing
temporary Notes, registration of
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Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an
office or agency for payments, (c) the rights, powers, trust, duties and
immunities of the Trustee and the Issuer's obligations in connection therewith
and (d) the Legal Defeasance provisions of this Section 8.01. In addition, the
Issuer may, at its option and at any time, elect to have the obligations of the
Issuer, Holdings and the Guarantors, if any, released with respect to covenants
contained in Sections 4.05, 4.07 through 4.17 ("Covenant Defeasance"), clauses
(iii) and (iv) of the first paragraph of Section 5.01, clause (z) of the second
paragraph of Section 5.01 and clause (iv) of the fourth paragraph of Section
5.01 and thereafter any omission to comply with such obligations shall not
constitute a Default or Event of Default with respect to the Notes. In the event
of Covenant Defeasance, those events described under Section 6.01(4), (6), (7)
(as it relates to Significant Subsidiaries), (8) (as it relates to Significant
Subsidiaries), (9), (10) and (11) will no longer constitute an Event of Default
with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuer must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders money or U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest on the Notes to redemption
or maturity, as the case may be;
(b) in the case of Legal Defeasance (other than within 12 months of
June 1, 2002 or the Maturity Date), the Issuer shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable
to the Trustee confirming that (i) the Issuer has received from, or there
has been published by, the Internal Revenue Service a ruling or (ii) since
the date of this Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and in either case and (iii) the Holders will be
subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(c) in the case of Covenant Defeasance, the Issuer shall have
delivered to the Trustee an opinion of counsel
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in the United States reasonably acceptable to the Trustee confirming that
the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default
under Section 6.01(7) or (8) from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date
of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under this Indenture or
any other material agreement or instrument to which the Issuer or any of
its Subsidiaries is a party or by which the Issuer or any of its
Subsidiaries is bound;
(f) the Issuer shall have delivered to the Trustee an officers'
certificate stating that the deposit was not made by the Issuer with the
intent of preferring the Holders over any other creditors of either Issuer
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Issuer or others;
(g) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with; provided,
however, that such counsel may rely, as to matters of fact, on a
certificate or certificates of officers of the Issuer; and
(h) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
SECTION 8.02. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Section 8.01, and
shall apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in
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accordance with this Indenture to the payment of the principal of and interest
on the Notes. The Trustee shall be under no obligation to invest said U.S. Legal
Tender or U.S. Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Notes.
SECTION 8.03. Repayment to the Issuer.
Subject to Section 8.01, the Trustee and the Paying Agent shall
promptly pay to the Issuer upon request any excess U.S. Legal Tender or U.S.
Government Obligations held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Issuer upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years; provided, however,
that the Trustee or such Paying Agent, before being required to make any
payment, may at the expense of the Issuer 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 Issuer. After payment to the Issuer, Holders entitled to such
money must look to the Issuer for payment as general creditors unless an
applicable law designates another Person.
SECTION 8.04. 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 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
Issuer's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 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; provided,
however, that if the Issuer has made any payment of interest on or principal of
any Notes because of the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Notes to receive
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such payment from the U.S. Legal Tender or U.S. Government Obligations held by
the Trustee or Paying Agent.
SECTION 8.05. Acknowledgment of Discharge by Trustee.
After (i) the conditions of Section 8.01 have been satisfied, (ii)
the Issuer has paid or caused to be paid all other sums payable hereunder by the
Issuer and (iii) the Issuer 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 request
shall acknowledge in writing the discharge of the Issuer's, each Guarantor's and
the Subordinated Guarantor's obligations under this Indenture except for those
surviving obligations specified in Section 8.01; provided the legal counsel
delivering such Opinion of Counsel may rely as to matters of fact on one or more
Officers' Certificates of the Issuer.
ARTICLE NINE
AMENDMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Issuer, the Guarantors, the Subordinated Guarantor and the
Trustee may amend this Indenture or the Notes without notice to or consent of
any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes; provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section l63(f) of the Code
or in a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Notes or to secure the
Notes or to provide for the release of the Subordinated Guarantee as
described in the definition of Guarantor;
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(5) to add to the covenants of the Issuer, the Guarantors or the
Subordinated Guarantor for the benefit of the Holders or to surrender any
right or power herein conferred upon the Issuer, the Guarantors or the
Subordinated Guarantor;
(6) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA; or
(7) to make any change that does not adversely affect the rights of
any Holder.
After an amendment under this Section becomes effective, the Issuer
shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders.
The Issuer and the Trustee may amend this Indenture or the Notes
without notice to any Holder but with the written consent of the Holders of at
least a majority in principal amount of the Notes (including consents obtained
in connection with a tender offer or exchange for the Notes) and any past
default or compliance with any provisions may be waived with the consent of the
Holders of a majority in principal amount of the Notes then outstanding.
However, without the consent of each Holder affected thereby, an amendment may
not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal of or extend the Stated Maturity of any
Note;
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article Three;
(5) make any Note payable in money other than that stated in the
Note;
(6) make any change in Section 6.04 or 6.07 or the second sentence
of this Section; or
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(7) release any Guarantor or the Subordinated Guarantor from any of its
obligations under its Guarantee or the Subordinated Guarantee, as the case
may be, or this Indenture otherwise than in accordance with the terms of
this Indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
An amendment under Section 9.01 or this Section 9.02 may not make
any change that adversely affects the rights of any holder of Subordinated
Guarantor Senior Indebtedness then outstanding in Article 5, Section 11.02,
Section 11.05, the definition of Guarantor in Section 1.01, any other provision
of this Indenture which requires the consent of the holders of such Subordinated
Guarantor Senior Indebtedness and any defined term to the extent used in any of
the foregoing provisions unless the holders of such Subordinated Guarantor
Senior Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Issuer shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Notes shall comply with the
TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder of a Note shall
bind the Holder and every subsequent Holder of that Note or portion of the Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Note or
portion of the Note if the Trustee receives the notice of revocation before the
date the amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Holder. An amendment or waiver becomes
effective upon the execution of such amendment or waiver by the Trustee.
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The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then notwithstanding 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 give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 180
days after such record date.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment changes the terms of a Note, the Trustee may require
the Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue and the Trustee shall authenticate a
new Note that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Issuer shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments.
The Trustee shall sign any amendment authorized pursuant to this
Article Nine if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. 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; provided, however, that this Section
10.01 shall not of itself require that this Indenture or the Trustee be
qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
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SECTION 10.02. 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 Issuer or any Guarantor
or the Subordinated Guarantor:
Xxxxxxxx Scotsman, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier Number: (000) 000-0000
Attention: President and Chief Executive Officer
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, XX 00000
Telecopier Number: (000) 000-0000
Attention: Corporate Finance Group
The Issuer, the Guarantors and the Subordinated Guarantor and the
Trustee by written notice to the other may designate additional or different
addresses for notices to such Person. Any notice or communication to the Issuer,
the Guarantors and the Subordinated Guarantor or the Trustee shall be deemed to
have been given or made as of the date so delivered if hand delivered; when
answered back, if telexed; 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
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar ten (10) days prior to such mailing
and shall be sufficiently given to him 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.
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SECTION 10.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuer, the Guarantors, the Subordinated Guarantor, the Trustee, the Registrar
and any other Person shall have the protection of TIA ss. 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer, the Subordinated
Guarantor or the Guarantors to the Trustee to take any action under this
Indenture, the Issuer shall furnish to the Trustee:
(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 Issuer, if any, provided
for in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Issuer, if
any, provided for in this Indenture relating to the proposed action have
been complied with (which counsel, as to factual matters, may rely on an
Officers' Certificate).
SECTION 10.05. 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 4.04, 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
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opinion as to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 10.06. 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 10.07. Legal Holidays.
If any payment date is not a Business Day, payment may be made at
such place on the next succeeding day that is a Business Day, and no interest
shall accrue for the intervening period.
SECTION 10.08. Governing Law.
THIS INDENTURE, THE NOTES, THE GUARANTEES AND THE SUBORDINATED
GUARANTEE 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, the Notes, the Guarantees or the Subordinated Guarantee.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Issuer or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.10. No Personal Liability.
No director, officer, employee or stockholder, as such, of the
Issuer, the Subordinated Guarantor or any Guarantor, as such, shall have any
liability for any obligations of the Issuer, the Subordinated Guarantor or any
Guarantor under the Notes, this Indenture, the Guarantees, the Subordinated
Guarantee or the Registration Rights Agreements or for any claim based on, in
respect of, or by reason of, such obliga-
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tions or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 10.11. Successors.
All agreements of the Issuer in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 10.12. 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 10.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Notes or the 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 intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 10.14. Independence of Covenants.
All covenants and agreements in this Indenture, the Notes, the
Subordinated Guarantee and the Guarantees shall be given independent effect so
that if any particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or otherwise
be within the limitations of, another covenant shall not avoid the occurrence of
a Default or an Event of Default if such action is taken or condition exists.
SECTION 10.15. Agent for Service; Submission to Jurisdiction; Waiver
of Immunities.
By the execution and delivery of this Indenture, the Issuer, the
Subordinated Guarantor and each Guarantor (i) acknowledges that it has, by
separate written instrument, designated and appointed CT Corporation System (the
"Agent") (and any successor entity) as its authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to this
Indenture or any Note, the Subordinated Guarantee or any Guarantee that may be
instituted in any federal or
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state court in the Borough of Manhattan, The City of New York, State of New York
or any Note or Guarantee and acknowledges that the Agent has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit
or proceeding and (iii) agrees that service of process upon the Agent and
written notice of said service to the Issuer and the Guarantors in accordance
with this Section 10.15 shall be deemed in every respect effective service of
process upon the Issuer and the Guarantors in any such suit or proceeding. The
Issuer and the Guarantors further agree to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of the Agent in full
force and effect so long as any of the Notes shall be outstanding; provided,
however, that the Issuer and the Guarantors may (and, to the extent the Agent
ceases to be able to be served on the basis contemplated herein, shall), by
written notice to the Trustee and the holders of the Notes in accordance with
this Section 10.15 designate such additional or alternative agent for service of
process under this Section 10.15 that (i) maintains an office located in the
Borough of Manhattan, The City of New York, State of New York and (ii) is a
corporate service company which acts as agent for service of process for other
persons in the ordinary course of its business. Such written notice shall
identify the name of such agent for service of process and the address of the
office of such agent for service of process in the Borough of Manhattan, The
City of New York, State of New York.
To the extent that the Issuer or any Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents to the fullest extent permitted
by law.
ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01. Unconditional Guarantee.
Subject to the provisions of this Article Eleven, each Guarantor
hereby, jointly and severally, unconditionally and irrevocably guarantees, on a
senior basis (such guarantee to be referred to herein as a "Guarantee") to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the va-
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lidity and enforceability of this Indenture, the Notes or the obligations of the
Issuer or any other Guarantor to the Holders or the Trustee hereunder or
thereunder, that: (a) the principal of, premium, if any, and interest on the
Notes (and any Additional Interest payable thereon) shall be duly and punctually
paid in full when due, whether at maturity, xxxx xxxxxxxxxx, xxxx xxxxxxxxxx at
the option of Holders pursuant to the provisions of the Notes relating thereto,
by acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Notes and all other
obligations of the Issuer or the Guarantor to the Holders or the Trustee
hereunder or thereunder (including amounts due the Trustee under Section 7.07
hereof) and all other obligations shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed,
or failing performance of any other obligation of the Issuer to the Holders
under this Indenture or under the Notes, for whatever reason, each Guarantor
shall be obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes to accelerate the obligations of the Guarantor hereunder in the
same manner and to the same extent as the obligations of the Issuer.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Issuer, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. To the fullest extent permitted by law, each of the
Guarantors hereby waives the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever and covenants that its Guarantee
shall not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture and this Guarantee. The Guarantee is a
guarantee of payment and not of collection. If any Holder or the Trustee is
required by any court or otherwise to return to the Issuer or
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to any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Issuer or such Guarantor, any amount paid by
the Issuer or such Guarantor to the Trustee or such Holder, the Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders of Notes and the Trustee, on the other hand, (a) subject to this Article
Eleven, the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of the Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Six hereof,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Guarantee.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in an
amount pro rata based on the net assets of each Guarantor determined in
accordance with GAAP.
SECTION 11.02. Unconditional Guarantee of the Subordinated
Guarantor; Waiver of Substantive Consolidation by
Noteholders; etc.
Subject to the provisions of this Article Eleven, this Subordinated
Guarantor hereby unconditionally and irrevocably guarantees, on a subordinated
basis (such guarantee to be referred to herein as a "Subordinated Guarantee") to
each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Issuer or
any Guarantor to the Holders or the Trustee hereunder or thereunder, that: (a)
the principal of, premium, if any, and interest on the Notes (and any Additional
Interest payable thereon) shall be duly and punctually paid in full when due,
whether at maturity, xxxx xxxxxxxxxx, xxxx xxxxxxxxxx at the option of Holders
pursuant to the provisions of the Notes relating thereto, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest, if any, on the Notes and all other obligations of the Issuer or
the Subordinated Guarantor to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.07 hereof) and all other
obligations shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, the same shall
be promptly paid in full when due or performed in accordance with the terms of
the
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extension or renewal, whether at maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any
other obligation of the Issuer to the Holders under this Indenture or under the
Notes, for whatever reason, the Subordinated Guarantor shall be obligated to
pay, or to perform or cause the performance of, the same immediately. An Event
of Default under this Indenture or the Notes shall constitute an event of
default under this Subordinated Guarantee, and, subject to this Article Eleven
shall entitle the Holders of Notes to accelerate the obligations of the
Subordinated Guarantor hereunder in the same manner and to the same extent as
the obligations of the Issuer.
The Subordinated 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 Holder of the Notes with respect
to any provisions hereof or thereof, any release of any Guarantor, the recovery
of any judgment against the Issuer, any action to enforce the same, whether or
not a Subordinated Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Subordinated Guarantor. To the fullest extent permitted by law,
the Subordinated Guarantor hereby waives the benefit of diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest, notice and all demands whatsoever and covenants that its
Subordinated Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes, this Indenture and this Subordinated
Guarantee. The Subordinated Guarantee is a guarantee of payment and not of
collection. If any Holder or the Trustee is required by any court or otherwise
to return to the Issuer or to the Subordinated Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Issuer
or the Subordinated Guarantor, any amount paid by the Issuer or the Subordinated
Guarantor to the Trustee or such Holder, the Subordinated Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect. The
Subordinated Guarantor further agrees that, as between it, on the one hand, and
the Holders of Notes and the Trustee, on the other hand, (a) subject to this
Article Eleven, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of the
Subordinated Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Six hereof, such obligations (whether or not due and
payable) shall
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forthwith become due and payable by the Subordinated Guarantor for the purpose
of this Subordinated Guarantee.
The payment by the Subordinated Guarantor of all Obligations on the
Subordinated Guarantee is subordinated, to the extent and in the manner provided
in this Article Eleven, in right of payment to the prior payment in full, in
cash or cash equivalents, of all Obligations on Subordinated Guarantor Senior
Indebtedness, which subordination is for the benefit of and enforceable by the
holders of such Subordinated Guarantor Senior Indebtedness.
Upon any payment or distribution of assets of the Subordinated
Guarantor to creditors upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors or marshaling of assets
of the Subordinated Guarantor, or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Subordinated Guarantor or its
property, whether voluntary or involuntary, all Obligations with respect to all
Subordinated Guarantor Senior Indebtedness shall first be paid in full, in cash
or cash equivalents, before any payment or distribution of any kind or
character, whether in cash, property, or securities, is made on account of any
Obligations on the Subordinated Guarantee or for the acquisition of all or any
part of the Subordinated Guarantee for cash or property or otherwise; and until
all such Obligations with respect to all Subordinated Guarantor Senior
Indebtedness are paid in full, in cash or cash equivalents, any distribution to
which the holders of the Subordinated Guarantee would be entitled but for the
subordination provisions will be made to the holders of Subordinated Guarantor
Senior Indebtedness as their interests may appear.
If (i) any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, or other amounts due and owing on, any Subordinated
Guarantor Senior Indebtedness or (ii) any default occurs and is continuing with
respect to any Subordinated Guarantor Senior Indebtedness resulting in the
acceleration of the maturity of all or any portion of such Subordinated
Guarantor Senior Indebtedness, no payment shall be made by or on behalf of the
Subordinated Guarantor or any of its Subsidiaries or any other person on its or
their behalf with respect to any obligations on the Subordinated Guarantee or to
acquire all or any part of the obligations covered by the Subordinated Guarantee
for cash or property or otherwise; provided, however, that, except to the extent
provided in the next succeeding paragraph, the forgoing provisions shall not
restrict the Issuer from making payments of principal or interest on or with
respect to the Notes (including, without limitation, by redemption, repurchase
or other
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acquisition). In addition, if any other event of default occurs and is
continuing (or if such an event of default would occur upon any payment with
respect to the Subordinated Guarantee) with respect to the Subordinated
Guarantor Senior Indebtedness, as such event of default is defined in the
instrument creating or evidencing or guaranteeing such Subordinated Guarantor
Senior Indebtedness permitting the holders of such Subordinated Guarantor Senior
Indebtedness then outstanding, or their Representative, to accelerate the
maturity thereof (or the obligations guaranteed thereby) and if the respective
Representative for the respective Subordinated Guarantor Senior Indebtedness
gives written notice of the event of default to the Trustee (a "Default
Notice"), then, unless and until the date, if any, on which all Subordinated
Guarantor Senior Indebtedness to which such event of default relates is paid in
full in cash or cash equivalents or the Representative for the respective
Subordinated Guarantor Senior Indebtedness gives notice that all events of
default have been cured or waived or have ceased to exist or the Trustee
receives written notice from the Representative for the respective Subordinated
Guarantor Senior Indebtedness terminating the Blockage Period (as defined
below), during the 179 days after the delivery of such Default Notice (the
"Blockage Period"), none of the Subordinated Guarantor or any of its
Subsidiaries or any other person on its or their behalf shall (x) make any
payment with respect to any obligations evidenced by the Subordinated Guarantee
or (y) acquire all or any part of the obligations covered by the Subordinated
Guarantee for cash or property or otherwise. Notwithstanding anything herein to
the contrary, in no event will a Blockage Period extend beyond 179 days from the
date of the commencement thereof. Only one such Blockage Period may be commenced
within any 360 consecutive days. No event of default which existed or was
continuing (it being acknowledged that (x) any action of the Issuer, the
Subordinated Guarantor or any of their respective Subsidiaries occurring
subsequent to delivery of a Default Notice that would give rise to any event of
default pursuant to any provision under which an event of default previously
existed (or was continuing at the time of delivery of such Default Notice) and
(y) any breach of a financial covenant for a period ended after the date of the
commencement of a Blockage Period, in each case shall constitute a new event of
default for this purpose) on the date of the commencement of any Blockage Period
with respect to the Subordinated Guarantor Senior Indebtedness shall be, or be
made, the basis for the commencement of a second Blockage Period by the
Representative of the Subordinated Guarantor Senior Indebtedness whether or not
within a period of 360 consecutive days, unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days.
The Noteholders acknowledge and agree, on behalf of themselves and
all their successors and assigns as Noteholders,
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that the claims of the Noteholders against the Subordinated Guarantor, and
against the assets from time to time held by the Subordinated Guarantor
(including, without limitation, all units, leases and proceeds therefrom at any
time transferred or purported to be transferred to the Subordinated Guarantor),
are limited to the claims expressly provided pursuant to the Subordinated
Guarantee. The Noteholders further agree, on behalf of themselves and all their
successors and assigns as Noteholders, that in no event (whether pursuant to a
proceeding under the Bankruptcy Law or otherwise) shall they (or any
representative on their behalf including the Trustee) assert that the assets of
the Subordinated Guarantor should be substantively consolidated or otherwise
combined with the assets of the Issuer, Holdings or any of their other
Subsidiaries, or otherwise returned (whether under claims of fraudulent
conveyance or otherwise) to any such person. Furthermore, in the event that
pursuant to any proceeding pursuant to the Bankruptcy Law or otherwise the
assets (or any of the assets) of the Subordinated Guarantor are substantively
consolidated or otherwise combined in a similar fashion with the assets of the
Issuer, Holdings or any other of their Subsidiaries or otherwise returned to any
such person, then, as between the Noteholders (and their successors and assigns)
and the lenders pursuant to the Credit Agreement (and pursuant to any Hedging
Obligations from time to time entered into); the Noteholders agree that all
distributions received by them (and their successors and assigns) to the extent
attributable to the assets, or representing any proceeds from any disposition of
assets, which were held by the Subordinated Guarantor prior to any such
consolidation, combination or return of assets shall be treated by the
Noteholders as if received pursuant to the Subordinated Guarantee and shall be
fully subject to the subordination provisions contained in this Section 11.02.
If a distribution is made to Noteholders that because of this
Section 11.02 should not have been made to them, the Noteholders who receive the
distribution shall hold it in trust for holders of Subordinated Guarantor Senior
Indebtedness and pay it over to them as their interests may appear.
This Section 11.02 defines the relative rights of the Noteholders
and the holders of Subordinated Guarantor Senior Indebtedness. Nothing in this
Section 11.02 shall:
(1) impair, as between the Issuer and the Noteholders, the
obligation of the Issuer, which is absolute and unconditional, to pay principal
of and interest on the Notes in accordance with their terms; or
(2) prevent the Trustee or any Noteholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Subordinated Guarantor Senior Indebtedness
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to receive distributions otherwise payable to Noteholders as and to the extent
provided in this Section 11.02.
No right of any present or future holders of any Subordinated
Guarantor Senior Indebtedness to enforce the subordination provisions contained
in this Section 11.02 shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Issuer, the Subordinated Guarantor,
any other Subsidiary of the Issuer or by any act or failure to act in good faith
by any such holder, or by any noncompliance by the Issuer, the Subordinated
Guarantor or any other Subsidiary of the Issuer with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Subordinated Guarantor Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the holders of
any Indebtedness of the Issuer, the Subordinated Guarantor or any other
Subsidiary of the Issuer, without incurring responsibility to the holders of any
Indebtedness of the Issuer, the Subordinated Guarantor or any other Subsidiary
of the Issuer, and without impairing or releasing the subordination provisions
contained in this Section 11.02, or the obligations hereunder of the holders of
the Indebtedness of the Issuer, the Subordinated Guarantor or any other
Subsidiary of the Issuer, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, the Subordinated Guarantor Senior Indebtedness or any instrument
evidencing the same or any agreement under which Subordinated Guarantor Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Subordinated Guarantor
Senior Indebtedness or fail to perfect or delay the perfection of any such lien;
(iii) release any person liable in any manner for the collection of Subordinated
Guarantor Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Issuer, the Subordinated Guarantor or any other Subsidiary of
the Issuer or any other Person.
Each Holder of the Securities by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provisions contained in this Section 11.02 and to protect the rights of the
Holders pursuant to this Indenture, and appoints the Trustee such Holder's
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Subordinated Guarantor (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment
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for the benefit of creditors or any other marshaling of assets and liabilities
of the Subordinated Guarantor) tending towards liquidation of the business and
assets of the Subordinated Guarantor, the immediate filing of a claim for the
unpaid balance of his securities in the form required in said proceeding and
cause said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of the
Subordinated Guarantor Senior Indebtedness or their Representative are or is
hereby authorized to have the right to file and are or is hereby authorized to
file an appropriate claim for and on behalf of the Holders of said Securities.
Nothing herein contained shall be deemed to authorize the Trustee or the holders
of Subordinated Guarantor Senior Indebtedness or their Representative to
authorize or consent to or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee or the holders of
Subordinated Guarantor Senior Indebtedness or their Representative to vote in
respect of the claim of any Holder in any such proceeding.
The failure to make a payment on or in respect of the Notes by
reason of any provision in this Section 11.02 shall not be construed as
preventing the occurrence of a Default. Nothing in this Section 11.02 shall have
any effect on the right of the Noteholders or the Trustee to accelerate the
maturity of the Notes.
Notwithstanding anything contained in this Section 11.02 to the
contrary, payments from money or the proceeds of U.S. Government Obligations
held in trust under Article Eight by the Trustee for the payment of principal of
and interest on the Notes shall not be, so long as such monies (x) were not
directly deposited by the Subordinated Guarantor or (y) to the extent directly
deposited by the Subordinated Guarantor, the payment thereof at the time of
deposit did not violate the provisions of this Section 11.02, subordinated to
the prior payment of any Subordinated Guarantor Senior Indebtedness or subject
to the restrictions set forth in this Section 11.02, and none of the Noteholders
shall be obligated to pay over any such amount to the Issuer or any holder of
Subordinated Guarantor Senior Indebtedness or any other creditor of the Issuer.
SECTION 11.03. Limitations on Guarantees.
The obligations of each Guarantor under its Guarantee and the
Subordinated Guarantor under the Subordinated Guarantee are limited to the
maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, its guarantee of
all obligations
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pursuant to the Credit Agreement) and the Subordinated Guarantor (including,
without limitation, all Subordinated Guarantor Senior Indebtedness) and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor or the Subordinated Guarantor, as the case may be, in respect of
the obligations of such other Guarantor under its Guarantee or the Subordinated
Guarantor under the Subordinated Guarantee, as the case may be, or pursuant to
its contribution obligations under this Indenture, will result in the
obligations of such Guarantor under the Guarantee and the Subordinated Guarantor
under the Subordinated Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under any laws of the United States, any state of the United
States or the District of Columbia.
SECTION 11.04. Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 11.01 and the
Subordinated Guarantee set forth in Section 11.02, each Guarantor and the
Subordinated Guarantor hereby agrees that a notation of such Guarantee and
Subordinated Guarantee, respectively, substantially in the form of Exhibit E
herein and Exhibit F herein, as the case may be, shall be endorsed on each Note
authenticated and delivered by the Trustee. Such Guarantee and Subordinated
Guarantee shall be executed on behalf of each Guarantor and the Subordinated
Guarantor by either manual or facsimile signature of two Officers of each
Guarantor and the Subordinated Guarantor, each of whom, in each case, shall have
been duly authorized to so execute by all requisite corporate or other action.
The validity and enforceability of any Guarantee and Subordinated Guarantee
shall not be affected by the fact that it is not affixed to any particular Note.
Each of the Guarantors and the Subordinated Guarantor hereby agrees
that its Guarantee or Subordinated Guarantee, as the case may be, set forth in
Section 11.01 or 11.02, as the case may be, shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Guarantee or Subordinated Guarantee, as the case may be.
If an Officer of a Guarantor or the Subordinated Guarantor whose
signature is on this Indenture or a Guarantee or the Subordinated Guarantee, as
the case may be, no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee or Subordinated Guarantee is
endorsed or at any time thereafter, such Guarantor's or Subordinated Guarantor's
Guarantee or Subordinated Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee and the
Subordinated Guarantee set forth in
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this Indenture on behalf of each Guarantor and the Subordinated Guarantor.
SECTION 11.05. Release of a Guarantor or the Subordinated Guarantor
(a) If no Default exists or would exist under this Indenture, upon
the sale or disposition of all of the Capital Stock of a Guarantor or the
Subordinated Guarantor by the Issuer in a transaction constituting an Asset
Disposition the Net Cash Proceeds of which are applied in accordance with
Section 4.12 (or if the Issuer delivers to the Trustee an Officers' Certificate
to the effect that the Net Available Cash from such Asset Disposition shall be
applied in accordance with Section 4.12), or upon the consolidation or merger of
a Guarantor or the Subordinated Guarantor with or into any Person in compliance
with Article Five (in each case, other than to the Issuer or an Affiliate of the
Issuer), or if any Guarantor or the Subordinated Guarantor is dissolved or
liquidated in accordance with this Indenture (in each case described above to
the extent involving the Subordinated Guarantor, only so long as the consent of
the holders of all Subordinated Guarantor Senior Indebtedness then outstanding
has been obtained), such Guarantor's Guarantee or the Subordinated Guarantor's
Subordinated Guarantee, as the case may be, shall be released, and such
Guarantor and each Subsidiary of such Guarantor that is also a Guarantor and the
Subordinated Guarantor shall be deemed released from all obligations under this
Article Eleven without any further action required on the part of the Trustee or
any Holder. Any Guarantor or the Subordinated Guarantor not so released or the
entity surviving such Guarantor or the Subordinated Guarantor, as applicable,
shall remain or be liable under its Guarantee or Subordinated Guarantee as
provided in this Article Eleven.
(b) The Trustee shall deliver an appropriate instrument evidencing
the release of a Guarantor or the Subordinated Guarantor upon receipt of a
request by the Issuer or such Guarantor or the Subordinated Guarantor
accompanied by an Officers' Certificate and an Opinion of Counsel certifying as
to the compliance with this Section 11.05, provided the legal counsel delivering
such Opinion of Counsel may rely conclusively as to matters of fact on one or
more Officers Certificates of the Issuer.
The Trustee shall execute any documents reasonably requested by the
Issuer or a Guarantor or the Subordinated Guarantor in order to evidence the
release of such Guarantor or the Subordinated Guarantor from its obligations
under its Guarantee or the Subordinated Guarantee endorsed on the Notes and
under this Article Eleven.
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Except as set forth in Articles Four and Five (including, without
limitation, the provisos to the second and fifth paragraphs of Section 5.01) and
this Section 11.05, nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Guarantor or the Subordinated
Guarantor with or into the Issuer, another Guarantor or the Subordinated
Guarantor or shall prevent any sale or conveyance of the property of a Guarantor
or the Subordinated Guarantor as an entirety or substantially as an entirety to
the Issuer, another Guarantor or the Subordinated Guarantor. Notwithstanding
anything to the contrary contained herein, if the Holders of the Notes
voluntarily release the Subordinated Guarantor from its obligations pursuant to
this Subordinated Guarantee either (x) without the requisite consent of the
holders of the then outstanding Subordinated Guarantor Senior Indebtedness or
(y) other than pursuant to and in accordance with Section 11.05, Article Five or
the definition of Guarantor in Section 1.01, then (and notwithstanding anything
to the contrary contained elsewhere in this Indenture), the provisions of the
fifth paragraph of Section 11.02 shall survive any such release for the benefit
of the holders of the Subordinated Guarantor Senior Indebtedness.
SECTION 11.06. Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are
discharged and paid in full, each Guarantor and the Subordinated Guarantor
hereby irrevocably waives and agrees to the fullest extent permitted by law not
to exercise any claim or other rights which it may now or hereafter acquire
against the Issuer that arise from the existence, payment, performance or
enforcement of the Issuer's obligations under the Notes or this Indenture and
such Guarantor's or the Subordinated Guarantor's obligations under the
Guarantees, the Subordinated Guarantee and this Indenture, in any such instance
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Holders against the Issuer, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Issuer,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor or the Subordinated Guarantor in violation
of the preceding sentence and any amounts owing to the Trustee or the Holders of
Notes under the Notes, this Indenture, or any other document or instrument
delivered under or in connection with such agreements or instruments, shall not
have been paid in full, such amount shall have been deemed to have been paid to
such Guarantor or the Subordinated Guarantor, as the case may be, for the
benefit of, and held in trust for the benefit of, the Trustee or the Holders
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and shall forthwith be paid to the Trustee for the benefit of itself or such
Holders to be credited and applied to the obligations in favor of the Trustee or
the Holders, as the case may be, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor and the Subordinated Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 11.06 is knowingly made in contemplation of such benefits.
SECTION 11.07. Immediate Payment.
Each Guarantor and, subject to the provisions of Section 11.02, the
Subordinated Guarantor agrees to make immediate payment to the Trustee on behalf
of the Holders of all Obligations owing or payable to the respective Holders
upon receipt of a demand for payment therefor by the Trustee to such Guarantor
and the Subordinated Guarantor in writing.
SECTION 11.08. No Set-Off.
Each payment to be made by a Guarantor and the Subordinated
Guarantor hereunder in respect of the Obligations shall be payable in the
currency or currencies in which such Obligations are denominated, and shall be
made without set-off, counterclaim, reduction or diminution of any kind or
nature.
SECTION 11.09. Obligations Continuing.
The obligations of each Guarantor and the Subordinated Guarantor
hereunder shall be continuing and shall remain in full force and effect until
all the Obligations have been paid and satisfied in full. Each Guarantor and the
Subordinated Guarantor agrees with the Trustee that it will from time to time
deliver to the Trustee suitable acknowledgments of this continued liability
hereunder.
SECTION 11.10. Obligations Reinstated.
The obligations of each Guarantor and the Subordinated Guarantor
hereunder shall continue to be effective or shall be reinstated, as the case may
be, if at any time any payment which would otherwise have reduced the
obligations of any Guarantor and the Subordinated Guarantor hereunder (whether
such payment shall have been made by or on behalf of the Issuer or by or on
behalf of a Guarantor and the Subordinated Guarantor) is rescinded or reclaimed
from any of the Holders upon the insolvency, bankruptcy, liquidation or
reorganization of the Issuer or any Guarantor or the Subordinated Guarantor or
otherwise, all as though such payment had not been made. If demand for, or
acceleration of the time for, payment by the Issuer is stayed
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upon the insolvency, bankruptcy, liquidation or reorganization of the Issuer,
all such Indebtedness otherwise subject to demand for payment or acceleration
shall nonetheless be payable by each Guarantor or the Subordinated Guarantor as
provided herein.
SECTION 11.11. Obligations Not Affected.
To the fullest extent permitted by law, the obligations of each
Guarantor and the Subordinated Guarantor hereunder shall not be affected,
impaired or diminished in any way by any act, omission, matter or thing
whatsoever, occurring before, upon or after any demand for payment hereunder
(and whether or not known or consented to by any Guarantor or the Subordinated
Guarantor or any of the Holders) which, but for this provision, might constitute
a whole or partial defense to a claim against any Guarantor or the Subordinated
Guarantor hereunder or might operate to release or otherwise exonerate any
Guarantor or the Subordinated Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise.
SECTION 11.12. Waiver.
Without in any way limiting the provisions of Sections 11.01 and
11.02 hereof, to the fullest extent permitted by law, each Guarantor and the
Subordinated Guarantor hereby waives notice or proof of reliance by the Holders
upon the obligations of any Guarantor or the Subordinated Guarantor hereunder,
and diligence, presentment, demand for payment on the Issuer, protest or notice
of dishonor of any of the Obligations, or other notice or formalities to the
Issuer of any kind whatsoever.
SECTION 11.13. No Obligation To Take Action Against the Issuer.
Neither the Trustee nor any other Person shall have any obligation
to enforce or exhaust any rights or remedies or to take any other steps under
any security for the Obligations or against the Issuer or any other Person or
any property of the Issuer or any other Person before the Trustee is entitled to
demand payment and performance by any or all Guarantors and/or the Subordinated
Guarantor of their liabilities and obligations under their Guarantees or the
Subordinated Guarantee or under this Indenture.
SECTION 11.14. Dealing with the Issuer and Others.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
or the Subordinated Guarantor here-
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under and without the consent of or notice to any Guarantor or the Subordinated
Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Issuer or any
other Person;
(b) take or abstain from taking security or collateral from the
Issuer or any Guarantor or the Subordinated Guarantor or from perfecting
security or collateral of the Issuer or any Guarantor or the Subordinated
Guarantor;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given
by the Issuer or any Guarantor or the Subordinated Guarantor or any third
party with respect to the obligations or matters contemplated by this
Indenture or the Notes;
(d) accept compromises or arrangements from the Issuer;
(e) apply all monies at any time received from the Issuer or any
Guarantor or the Subordinated Guarantor or from any security upon such
part of the Obligations as the Holders may see fit or change any such
application in whole or in part from time to time as the Holders may see
fit; and
(f) otherwise deal with, or waive or modify their right to deal
with, the Issuer and all other Persons and any security as the Holders or
the Trustee may see fit.
SECTION 11.15. Default and Enforcement.
If any Guarantor or the Subordinated Guarantor fails to pay in
accordance with Section 11.02 hereof, the Trustee may proceed in its name as
trustee hereunder in the enforcement of the Guarantee or Subordinated Guarantee
of any such Guarantor or the Subordinated Guarantor and such Guarantor's or
Subordinated Guarantor's obligations thereunder and hereunder by any remedy
provided by law, whether by legal proceedings or otherwise, and to recover from
such Guarantor or the Subordinated Guarantor the obligations.
SECTION 11.16. Amendment, Etc.
No amendment, modification or waiver of any provision of this
Indenture relating to any Guarantor or the Subordinated Guarantor or consent to
any departure by any Guarantor or the
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Subordinated Guarantor or any other Person from any such provision will in any
event be effective unless it is signed by such Guarantor or the Subordinated
Guarantor, as the case may be, and the Trustee.
SECTION 11.17. Acknowledgment.
Each Guarantor and the Subordinated Guarantor hereby acknowledges
communication of the terms of this Indenture and the Notes and consents to and
approves of the same.
SECTION 11.18. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders, any right, remedy, power or privilege hereunder or
under this Indenture or the Notes, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder or under this Indenture or the Notes preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges in the Guarantees, the Subordinated
Guarantee and under this Indenture, the Notes and any other document or
instrument between a Guarantor, the Subordinated Guarantor and/or the Issuer and
the Trustee are cumulative and not exclusive of any rights, remedies, powers and
privilege provided by law.
SECTION 11.19. Survival of Obligations.
Without prejudice to the survival of any of the other obligations of
each Guarantor and the Subordinated Guarantor hereunder, the obligations of each
Guarantor under Section 11.01 and the obligations of the Subordinated Guarantor
under Section 11.02 shall be enforceable against such Guarantor and the
Subordinated Guarantor, respectively, without regard to and without giving
effect to any right of offset or counterclaim available to or which may be
asserted by the Issuer, any Guarantor or the Subordinated Guarantor.
SECTION 11.20. Guarantee in Addition to Other Obligations.
The obligations of each Guarantor under its Guarantee and this
Indenture and the obligations of the Subordinated Guarantor under the
Subordinated Guarantee and this Indenture are in addition to and not in
substitution for any other obligations to the Trustee or to any of the Holders
in relation to this Indenture or the Notes (including the Registration Rights
Agreements).
SECTION 11.21. Severability.
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Any provision of this Article Eleven which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and
purpose of this Indenture and this Article Eleven.
SECTION 11.22. Successors and Assigns.
Each Guarantee and the Subordinated Guarantee shall be binding upon
and inure to the benefit of each Guarantor and the Subordinated Guarantor,
respectively, and the Trustee and the other Holders and their respective
successors and permitted assigns, except that none of the Guarantors or the
Subordinated Guarantor may assign any of its obligations hereunder or
thereunder.
SECTION 11.23. No Personal Liability
No stockholder, officer, director, employee or incorporator, past,
present or future, of any Guarantor or the Subordinated Guarantor, as such,
shall have any personal liability under the Guarantee or the Subordinated
Guarantee by reason of his, her or its status as such stockholder, officer,
director, employee or incorporator.
[Remainder of Page Intentionally Left Blank]
-115-
EXHIBIT A
CUSIP No.:
XXXXXXXX SCOTSMAN, INC.
9 7/8% SENIOR NOTE DUE 2007
No. [ ]
XXXXXXXX SCOTSMAN, INC., a Maryland corporation (the "Issuer", which
term includes any successor entities), for value received promises to pay to
[ ] or registered assigns the principal sum of
($ ) Dollars on June 1, 2007.
Interest Payment Dates: June 1 and December 1, commencing December
1, 1997
Record Dates: November 15 and May 15
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.
IN WITNESS WHEREOF, the Issuer 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.
XXXXXXXX SCOTSMAN, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Dated:
Certificate of Authentication
A-1
This is one of the 9 7/8% Senior Notes due 2007 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------
Authorized Signatory
Date of Authentication:
A-2
(REVERSE OF NOTE)
9 7/8% Senior Note due 2007
1. Interest. XXXXXXXX SCOTSMAN, INC., a Maryland corporation (the
"Issuer"), 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 or, if no interest has been paid,
from May 22, 1997. The Issuer will pay interest semi-annually in arrears on each
Interest Payment Date, commencing December 1, 1997. Interest will be computed on
the basis of a 360-day year of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed.
The Issuer shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful.
2. Method of Payment. The Issuer shall pay interest on the Notes
(except defaulted interest) 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 (including pursuant to an Exchange Offer (as defined in the
applicable Registration Rights Agreement)) after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuer
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 Issuer may pay principal and interest by its check
payable in such U.S. Legal Tender. The Issuer 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 Issuer may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture. The Issuer issued the Notes under an Indenture, dated
as of May 15, 1997 (the "Indenture"), among the Issuer, the Guarantors, the
Subordinated Guarantor and the Trustee. This Note is one of a duly authorized
issue of Initial Notes of the Issuer designated as its 9 7/8% Senior Notes due
2007 (the "Initial Notes"). The Notes are limited in ag-
A-3
gregate principal amount to $550,000,000. The Notes include the Initial Notes,
the Private Exchange Notes (as defined in the Indenture) and the Unrestricted
Notes, as defined below, issued in exchange for the Initial Notes pursuant to
the Registration Rights Agreements or, with respect to Initial Notes issued
under the Indenture subsequent to the Issue Date, a registration rights
agreement substantially identical to the Registration Rights Agreements with the
Initial Purchasers. The Initial Notes and the Unrestricted Notes are treated as
a single class of securities under the Indenture. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Notes include those stated in this 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 of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and said Act for
a statement of them. The Notes are general unsecured obligations of the Issuer.
5. Indenture. 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 in accordance with its terms.
6. Redemption. Except as provided below, the Notes will not be
redeemable at the option of the Issuer prior to June 1, 2002. Thereafter, the
Notes will be redeemable, at the Issuer's option, in whole or in part at any
time and from time to time, upon not less than 30 nor more than 60 days' notice
mailed by first-class mail to each Holder's registered address, at the following
redemption prices (expressed as percentages of the principal amount thereof),
plus accrued 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), if redeemed during the twelve-month period commencing on
June 1 of the years set forth below:
Year Percentage
---- ----------
2002...................................... 104.938%
2003...................................... 102.469%
2004 and thereafter....................... 100.000%
At any time, or from time to time, on or prior to June 1, 2000, the
Issuer may redeem in the aggregate up to $160 million aggregate principal amount
of the Notes with the proceeds of one or more Public Equity Offerings (as
defined in the Indenture) (provided that if a Public Equity Offering is a public
offering of any class of Common Stock of Holdings or another issuer, a portion
of the Net Cash Proceeds thereof equal to the amount required to redeem any such
Notes is contributed
A-4
to the equity capital of the Issuer) at a redemption price (expressed as a
percentage of principal amount) of 109.875% plus accrued interest to the date of
redemption (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date); provided,
however, that at least $240 million aggregate principal amount of Notes
originally issued remain outstanding immediately after any such redemption.
At any time on or prior to June 1, 2002, the Notes may also be
redeemed as a whole but not in part at the option of the Issuer upon the
occurrence of a Change of Control, upon not less than 30 nor more than 60 days'
prior notice (exercisable no later than 30 days after such Change of control)
mailed by first-class mail to each Holder's registered address, at a redemption
price equal to 100% of the principal amount thereof plus the Applicable Premium
as of, and 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).
7. 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. Notes in
denominations larger than $1,000 may be redeemed in part.
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 Issuer 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.
8. Offers to Purchase. Sections 4.11 and 4.12 of the Indenture
provide that, after certain Asset Dispositions (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 Issuer will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. Registration Rights. Pursuant to a registration rights agreement
among the Issuer, the Guarantor and the Subordinated Guarantor and the Initial
Purchasers and a registration rights agreement among the Issuer, the Guarantor
and the Subordinated Guarantor and Oak Hill Securities Fund, L.P., the Issuer,
the Guarantor and
A-5
the Subordinated Guarantor 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 Issuer's 9 7/8% Senior Notes due 2007 (the "Unrestricted 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 Initial Notes shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
such registration rights agreements.
10. Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, and in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange 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.
11. Persons Deemed Owners. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
12. 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 Issuer. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Issuer at any
time deposits with the Trustee 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 Issuer will be
discharged from certain provisions of the Indenture and the Notes (including
certain covenants, but including, under certain circumstances, its obligation to
pay the principal of and interest on the Notes but without affecting the rights
of the Holders to receive such amounts from such deposits).
14. Amendment; Supplement; Waiver. Subject to certain exceptions set
forth in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of a majority in aggregate
principal amount
A-6
of the Notes then outstanding, and any past 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 or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Notes in addition
to or in place of certificated Notes, comply with any requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA or comply with Article Five of the Indenture, to add guarantees
with respect to the Notes or to provide for the release of the Subordinated
Guarantee if permitted, to add covenants for the benefit of the Holder of the
Notes or make any other change that does not adversely affect the rights of any
Holder of a Note.
15. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Issuer and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of their Capital
Stock or certain Indebtedness, make certain Investments, create or incur liens,
enter into transactions with Affiliates, create dividend or other payment
restrictions affecting any Restricted Subsidiaries, and on the ability of the
Issuer to merge or consolidate with any other Person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of the Issuer's
assets. Such limitations are subject to a number of important qualifications and
exceptions. Pursuant to Section 4.06 of the Indenture, the Issuer must annually
report to the Trustee on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor, subject to certain exceptions, will be released from
those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of not less than 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
A-7
Notes notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest when due, for any reason) if it determines that
withholding notice is in their interest.
18. Trustee Dealings with Issuer and Its Subsidiaries. The Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer, its
Subsidiaries or their respective Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No partner, director, officer,
employee or stockholder, as such, of the Issuer, any Guarantor or Subordinated
Guarantor, as such, shall have any liability for any obligations of the Issuer,
any Guarantor or Subordinated Guarantor under the Notes, the Indenture, the
Guarantees or the Subordinated Guarantee or any Registration Rights Agreement or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
20. Guarantees. This Note will be entitled to the benefits of
certain Guarantees and the Subordinated Guarantee, if any, made for the benefit
of the Holders. Reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations thereunder of
the Guarantors and the Subordinated Guarantor, the Trustee and the Holders.
21. Waiver of Substantive Consolidation; Etc. Each holder of a Note
acknowledges and agrees, on behalf of itself and all its successors and assigns
as a Noteholder, that the claims of the Noteholders against the Subordinated
Guarantor, and against the assets from time to time held by the Subordinated
Guarantor (including, without limitation, all units, leases and proceeds
therefrom at any time transferred or purported to be transferred to the
Subordinated Guarantor), are limited to the claims expressly provided pursuant
to the Subordinated Guarantee. Each holder of a Note further agrees, on behalf
of itself and all its successors and assigns as a Noteholder, that in no event
(whether pursuant to a proceeding under the Bankruptcy Law or otherwise) shall
it (or any representative on its behalf including the Trustee) assert that the
assets of the Subordinated Guarantor should be substantively consolidated or
otherwise combined with the assets of the Issuer, Holdings or any of their other
Subsidiaries, or otherwise returned (whether under claims of fraudulent
conveyance or otherwise) to any such person. Furthermore, in the event that
pursuant to any proceeding pursuant to the Bankruptcy Law or otherwise the
assets (or any of the
A-8
assets) of the Subordinated Guarantor are substantively consolidated or
otherwise combined in a similar fashion with the assets of the Issuer, Holdings
or any other of their Subsidiaries or otherwise returned to any such person,
then, as between the Noteholders (and their successors and assigns) and the
lenders pursuant to the Credit Agreement (and pursuant to any Hedging
Obligations from time to time entered into); the Noteholders agree that all
distributions received by them (and their successors and assigns) to the extent
attributable to the assets, or representing any proceeds from any disposition of
assets, which were held by the Subordinated Guarantor prior to any such
consolidation, combination or return of assets shall be treated by the
Noteholders as if received pursuant to the Subordinated Guarantee and shall be
fully subject to the subordination provisions contained in Section 11.02 of the
Indenture.
22. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
23. Governing Law. This Note and the Indenture 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 Note.
24. 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).
25. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Issuer 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 Issuer will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made
to: Xxxxxxxx Scotsman, Inc., 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000.
A-9
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 Issuer. The agent may substitute another to act for him.
Dated: Signed:
------------------ --------------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements on and after
October 26, 1992 will include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) [ ], the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer:
[Check One]
(1) __ to the Issuer or a subsidiary thereof; or
A-10
(2) __ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933,
as amended) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) __ outside the United states to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of
1933, as amended; or
(5) __ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(6) __ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Issuer as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
|_| The transferee is an Affiliate of the Issuer.
Unless one of the items is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if item
(3), (4), (5) or (7) is checked, the Issuer or the Trustee may require, prior to
registering any such transfer of the Notes, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3) or (4)) and other information as the Trustee or the Issuer has
reasonably requested 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 of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration
A-11
set forth herein and in Section 2.17 of the Indenture shall have been satisfied.
Dated: Signed:
------------------ --------------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements on and after
October 26, 1992 will include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A-12
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
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 "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended 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
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
------------------- --------------------------------------------------
NOTICE: To be executed by an executive officer
A-13
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.11 or Section 4.12 of this Indenture, check the
appropriate box:
Section 4.11 [ ]
Section 4.12 [ ]
If you want to elect to have only part of this Note purchased by the
Issuer pursuant to Section 4.11 or Section 4.12 of this 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.
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements on and after
October 26, 1992 will include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A-14
EXHIBIT B
CUSIP No.:
XXXXXXXX SCOTSMAN, INC.
9 7/8% SENIOR NOTE DUE 2007
No. [ ]
XXXXXXXX SCOTSMAN, INC., a Maryland corporation (the "Issuer", which
term includes any successor entities), for value received promises to pay to
[ ] or registered assigns the principal sum of
($ ) Dollars on June 1, 2007.
Interest Payment Dates: June 1 and December 1, commencing December
1, 1997
Record Dates: November 15 and May 15
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.
IN WITNESS WHEREOF, the Issuer 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.
XXXXXXXX SCOTSMAN, INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Dated:
Certificate of Authentication
B-1
This is one of the 9 7/8% Senior Notes due 2007 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------
Authorized Signatory
Date of Authentication:
B-2
(REVERSE OF NOTE)
9 7/8% Senior Note due 2007
1. Interest. XXXXXXXX SCOTSMAN, INC., a Maryland corporation (the
"Issuer"), 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 or, if no interest has been paid,
from May 22, 1997. The Issuer will pay interest semi-annually in arrears on each
Interest Payment Date, commencing December 1, 1997. Interest will be computed on
the basis of a 360-day year of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed.
The Issuer shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful.
2. Method of Payment. The Issuer shall pay interest on the Notes
(except defaulted interest) 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 Issuer 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 Issuer
may pay principal and interest by its check payable in such U.S. Legal Tender.
The Issuer 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 Issuer may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture. The Issuer issued the Notes under an Indenture, dated
as of May 15, 1997 (the "Indenture"), among the Issuer, the Guarantor, the
Subordinated Guarantor and the Trustee. This Note is one of a duly authorized
issue of Unrestricted Notes of the Issuer designated as its 9 7/8% Senior Notes
due 2007 (the "Unrestricted Notes"). The Notes are limited in aggregate
principal amount to $550,000,000. The Notes include the 9 7/8% Notes due 2007
(the "Initial Notes") and the Unrestricted Notes, issued in exchange for the
Initial Notes pursuant to a registration rights agreement. The Initial
B-3
Notes, the Private Exchange Notes (as defined in the Indenture) and the
Unrestricted Notes are treated as a single class of securities under the
Indenture. Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Notes include those stated in this
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 of the Indenture. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and said Act for a statement of them. The Notes are
general unsecured obligations of the Issuer.
5. Indenture. 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 in accordance with its terms.
6. Redemption. Except as provided below, the Notes will not be
redeemable at the option of the Issuer prior to June 1, 2002. Thereafter, the
Notes will be redeemable, at the Issuer's option, in whole or in part at any
time and from time to time, upon not less than 30 nor more than 60 days' notice
mailed by first-class mail to each Holder's registered address, at the following
redemption prices (expressed as percentages of the principal amount thereof),
plus accrued 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), if redeemed during the twelve-month period commencing on
June 1 of the years set forth below:
Year Percentage
---- ----------
2002................................... 104.938%
2003................................... 102.469%
2004 and thereafter.................... 100.000%
At any time, or from time to time, on or prior to June 1, 2000, the
Issuer may redeem in the aggregate up to $160 million aggregate principal amount
of the Notes with the proceeds of one or more Public Equity Offerings (as
defined in the Indenture) (provided that if a Public Equity Offering is a public
offering of any class of Common Stock of Holdings or another issuer, a portion
of the Net Cash Proceeds thereof equal to the amount required to redeem any such
Notes is contributed to the equity capital of the Issuer) at a redemption price
(expressed as a percentage of principal amount) of 109.875% plus accrued
interest to the date of redemption (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date); provided, however, that at least $240 million aggregate principal
B-4
amount of Notes originally issued remain outstanding immediately after any such
redemption.
At any time on or prior to June 1, 2002, the Notes may also be
redeemed as a whole but not in part at the option of the Issuer upon the
occurrence of a Change of Control, upon not less than 30 nor more than 60 days'
prior notice (exercisable no later than 30 days after such Change of control)
mailed by first-class mail to each Holder's registered address, at a redemption
price equal to 100% of the principal amount thereof plus the Applicable Premium
as of, and 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).
7. 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. Notes in
denominations larger than $1,000 may be redeemed in part.
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 Issuer 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.
8. Offers to Purchase. Sections 4.11 and 4.12 of the Indenture
provide that, after certain Asset Dispositions (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 Issuer will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, and in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange 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.
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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 Issuer. 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 Issuer at any
time deposits with the Trustee U.S. Government Obligations sufficient to pay the
principal of and interest on the Notes to redemption and complies with the other
provisions of this Indenture relating thereto, the Issuer will be discharged
from certain provisions of the Indenture and the Notes (including certain
covenants, including, under certain circumstances, its obligation to pay the
principal of and interest on the Notes but without affecting the rights of the
Holders to receive such amounts from such deposit).
13. Amendment; Supplement; Waiver. Subject to certain exceptions set
forth in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding, and any past 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 or the Notes to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Notes in addition to or in place of certificated Notes, comply with any
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA or comply with Article Five of the Indenture, to
add guarantees with respect to the Notes or provide for the release of the
Subordinated Guarantee if permitted, to add covenants for the benefit of the
Holder of the Notes or make any other change that does not adversely affect the
rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Issuer and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of their Capital
Stock or certain Indebtedness, make certain Investments, create or incur liens,
enter into transactions with Affiliates, create dividend or other payment
restrictions affecting any Restricted Subsidiaries and on the ability of the
Issuer to merge or consolidate with any other Person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all
B-6
of the Issuer's assets. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.06 of the Indenture, the
Issuer must annually report to the Trustee on compliance with such limitations.
15. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor, subject to certain exceptions, 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 not less than 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 when due, for any reason) if it
determines that withholding notice is in their interest.
17. Trustee Dealings with Issuer and Its Subsidiaries. The Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer, its
Subsidiaries or their respective Affiliates as if it were not the Trustee.
18. No Recourse Against Others. No partner, director, officer,
employee or stockholder, as such, of the Issuer, the Subordinated Guarantor or
any Guarantor, as such, shall have any liability for any obligations of the
Issuer, the Subordinated Guarantor or any Guarantor under the Notes, the
Indenture, the Guarantees, the Subordinated Guarantee or the Registration Rights
Agreement or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
19. Guarantees. This Note will be entitled to the benefits of
certain Guarantees and the Subordinated Guarantee, if any, made for the benefit
of the Holders. Reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations thereun-
B-7
der of the Guarantors and the Subordinated Guarantor, the Trustee and the
Holders.
20. Waiver of Substantive Consolidation; Etc. Each holder of a Note
acknowledges and agrees, on behalf of itself and all its successors and assigns
as a Noteholder, that the claims of the Noteholders against the Subordinated
Guarantor, and against the assets from time to time held by the Subordinated
Guarantor (including, without limitation, all units, leases and proceeds
therefrom at any time transferred or purported to be transferred to the
Subordinated Guarantor), are limited to the claims expressly provided pursuant
to the Subordinated Guarantee. Each holder of a Note further agrees, on behalf
of itself and all its successors and assigns as a Noteholder, that in no event
(whether pursuant to a proceeding under the Bankruptcy Law or otherwise) shall
it (or any representative on its behalf including the Trustee) assert that the
assets of the Subordinated Guarantor should be substantively consolidated or
otherwise combined with the assets of the Issuer, Holdings or any of their other
Subsidiaries, or otherwise combined in a similar fashion with the assets of the
Issuer, Holdings or any other of their Subsidiaries or otherwise returned
(whether under claims of fraudulent conveyance or otherwise) to any such person.
Furthermore, in the event that pursuant to any proceeding pursuant to the
Bankruptcy Law or otherwise the assets (or any of the assets) of the
Subordinated Guarantor are substantively consolidated or otherwise returned to
any such person, then, as between the Noteholders (and their successors and
assigns) and the lenders pursuant to the Credit Agreement (and pursuant to any
Hedging Obligations from time to time entered into); the Noteholders agree that
all distributions received by them (and their successors and assigns) to the
extent attributable to the assets, or representing any proceeds from any
disposition of assets, which were held by the Subordinated Guarantor prior to
any such consolidation, combination or return of assets shall be treated by the
Noteholders as if received pursuant to the Subordinated Guarantee and shall be
fully subject to the subordination provisions contained in Section 11.02 of the
Indenture.
21. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
22. Governing Law. This Note and the Indenture 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 Note.
B-8
23. 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).
24. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer 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 Issuer will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to: Xxxxxxxx
Scotsman, Inc., 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
B-9
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 Issuer. The agent may substitute another to act for him.
Dated: Signed:
------------------ --------------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements on and after
October 26, 1992 will include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
B-10
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.11 or Section 4.12 of this Indenture, check the
appropriate box:
Section 4.11 [ ]
Section 4.12 [ ]
If you want to elect to have only part of this Note purchased by the
Issuer pursuant to Section 4.11 or Section 4.12 of this 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.
Signature Guarantee:
------------------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements on and after
October 26, 1992 will include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
B-11
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[ ], [ ]
[ ]
[ ]
[ ]
Ladies and Gentlemen:
In connection with our proposed purchase of 9 7/8% Senior Notes due
2007 (the "Notes") of Xxxxxxxx Scotsman, Inc., a Maryland corporation
("Scotsman"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated May 16, 1997, 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 such Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes (the "Indenture") and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes except
in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act"), and all applicable State
securities laws.
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 within the United States or to, or for the account or benefit of,
U.S. persons 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 any Notes, we will do so only
(i) to Scotsman or any subsidiary thereof, (ii) inside the United States
in accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A promulgated under the
Securities Act), (iii) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to
C-1
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to the Trustee (as defined in the Indenture) a signed
letter containing certain representations and agreements relating to the
restrictions on transfer of the Notes (the form of which letter can be
obtained from the Trustee), (iv) outside the United States in accordance
with Rule 904 of Regulation S promulgated under the Securities Act to
non-U.S. persons, (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 understand that, on any proposed resale of any Notes, we will
be required to furnish to the Trustee and Scotsman such certification,
legal opinions and other information as the Trustee and Scotsman 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.
5. 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.
6. We are acquiring the Notes purchased by us for our 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.
C-2
You, Scotsman, the Trustee and others are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
---------------------------------
Name:
Title:
C-3
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ], [ ]
[ ]
[ ]
[ ]
[ ]
Re: Xxxxxxxx Scotsman, Inc. ("Scotsman")
9 7/8% Senior Notes due 2007 (the "Notes")
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.
You, Scotsman and counsel for Scotsman are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in
D-1
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 Transferor]
By:
----------------------------
Authorized Signature
D-2
EXHIBIT E
GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note the cash payments in United States dollars of principal of, premium, if
any, and interest on this Note (and including Additional Interest payable
thereon) in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note, if lawful, and
the payment or performance of all other obligations of the Issuer under the
Indenture (as defined below) or the Notes, to the Holder of this Note and the
Trustee, all in accordance with and subject to the terms and limitations of this
Note, Article Eleven of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article Eleven of the Indenture and its
terms shall be evidenced therein. The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Indenture dated as of May 15, 1997, among
Xxxxxxxx Scotsman, Inc., a Maryland corporation, as issuer (the "Issuer"),
Mobile Field Office Company, a New Jersey corporation, as guarantor and Willscot
Equipment, LLC, a Delaware limited liability company, as subordinated guarantor
and The Bank of New York, as trustee (the "Trustee"), as amended or supplemented
(the "Indenture").
The obligations of the undersigned to the Holders of Notes and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in Article Eleven of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW. Each Guarantor hereby agrees to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
E-1
IN WITNESS WHEREOF, the undersigned has caused its Guarantee to be
duly executed.
Date:____________________
MOBILE FIELD OFFICE COMPANY, as
Guarantor
By:
------------------------------------
Name:
Title:
E-2
EXHIBIT F
SUBORDINATED GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, on a subordinated basis, to the Holder of this Note the cash
payments in United States dollars of principal of, premium, if any, and interest
on this Note (and including Additional Interest payable thereon) in the amounts
and at the times when due and interest on the overdue principal, premium, if
any, and interest, if any, of this Note, if lawful, and the payment or
performance of all other obligations of the Issuer under the Indenture (as
defined below) or the Notes, to the Holder of this Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Article
Eleven of the Indenture and this Subordinated Guarantee. This Subordinated
Guarantee will become effective in accordance with Article Eleven of the
Indenture and its terms shall be evidenced therein. The validity and
enforceability of any Subordinated Guarantee shall not be affected by the fact
that it is not affixed to any particular Note. Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Indenture dated
as of May 15, 1997, among Xxxxxxxx Scotsman, Inc., a Maryland corporation, as
issuer (the "Issuer"), Mobile Field Office Company, a New Jersey corporation, as
guarantor and Willscot Equipment, LLC, a Delaware limited liability company, as
subordinated guarantor and The Bank of New York, as trustee (the "Trustee"), as
amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and to
the Trustee pursuant to this Subordinated Guarantee and the Indenture are
expressly set forth in Article Eleven of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Subordinated Guarantee and
all of the other provisions of the Indenture to which this Subordinated
Guarantee relates.
THIS SUBORDINATED GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW. Each Subordinated Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Subordinated Guarantee.
This Subordinated Guarantee is subject to release upon the terms set
forth in the Indenture.
F-1
IN WITNESS WHEREOF, the Subordinated Guarantor has caused its
Subordinated Guarantee to be duly executed.
Date:
-------------------
WILLSCOT EQUIPMENT, LLC, as
Subordinated Guarantor
By:
---------------------------------
Name:
Title:
F-2
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
XXXXXXXX SCOTSMAN, INC.
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Vice President and Corporate
Counsel
MOBILE FIELD OFFICE COMPANY
By: /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: Secretary
WILLSCOT EQUIPMENT, LLC
By: Xxxxxxxx Scotsman, Inc.,
its member
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Vice President and Corporate
Counsel
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
