sv4
AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 9, 2011
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Mobile Mini, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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3443
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86-0748362 |
(State or other jurisdiction of
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(Primary Standard Industrial
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(I.R.S. Employer |
incorporation or organization)
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Classification Code Number)
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Identification Number) |
7420 S. Kyrene Road, Suite 101
Tempe, Arizona 85283
(480) 894-6311
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Christopher J. Miner, Esq.
Senior Vice President and General Counsel
Mobile Mini, Inc.
7420 S. Kyrene Road, Suite 101
Tempe, Arizona 85283
(480) 894-6311
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Gregory R. Hall, Esq.
DLA Piper LLP (US)
2525 East Camelback Road, Suite 1000
Phoenix, AZ 85016
Approximate date of commencement of proposed sale of the services to the public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in connection with the
formation of a holding company and there is compliance with General Instruction G, check the
following box. o
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Amount |
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Maximum |
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Maximum |
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Title of each class of |
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to be |
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Offering Price |
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Aggregate |
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Amount of |
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securities to be registered |
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Registered |
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Per Unit |
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Offering Price(1) |
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Registration Fee |
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7 7/8% Senior Notes Due 2020
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200,000,000 |
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100 |
% |
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$ |
200,000,000 |
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$ |
23,220 |
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Guarantees of 7 7/8% Senior Notes Due 2020
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$ |
200,000,000 |
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100 |
% |
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$ |
200,000,000 |
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(2 |
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(1) |
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Estimated solely for the purpose of calculating the registration fee pursuant to rule 457 under the Securities Act of 1933, as amended (the
Securities Act). |
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(2) |
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Pursuant to Rule 457(n), no additional registration fee is payable with respect to the guarantees. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary
to delay its effective date until the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
TABLE OF ADDITIONAL REGISTRANTS
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State or Other |
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Primary |
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Jurisdiction of |
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Standard |
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Incorporation |
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Classification |
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I.R.S. Employer |
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Address, including Zip Code and Telephone |
Exact Name of Registrant as Specified |
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or |
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Code |
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Identification |
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Number, including Area Code, of Registrant's |
in its Charter |
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Organization |
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Number |
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Number |
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Principal Executive Offices |
Mobile Mini Dealer, Inc.
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Arizona
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3443 |
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86-0682170
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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Mobile Mini, LLC
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California
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3443 |
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26-3615875
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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Mobile Mini, LLC
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Delaware
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3443 |
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80-0291431
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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Mobile Mini I, Inc.
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Arizona
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3443 |
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86-0748363
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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A Royal Wolf Portable Storage, Inc.
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California
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3443 |
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94-3043884
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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Temporary Mobile Storage, Inc.
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California
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3443 |
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94-3151288
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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Mobile Storage Group (Texas), L.P.
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Texas
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3443 |
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68-0523782
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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Mobile Storage Group, Inc.
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Delaware
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3443 |
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20-0751031
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7420 S. Kyrene Road,
Suite 101
Tempe, Arizona 85283 |
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A Better Mobile Storage Company
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California
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3443 |
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72-1536506
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
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MSG Investments, Inc.
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California
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3443 |
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52-2352413
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7420 S. Kyrene Road, Suite 101 |
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Tempe, Arizona 85283 |
The information contained in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities and it is not a
solicitation of an offer to buy these securities in any state or other jurisdiction where the offer
or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 9, 2011
PROSPECTUS
Exchange Offer for 7 7/8% Senior Notes due 2020
We hereby offer, upon the terms and subject to the conditions set forth in this prospectus and
the accompanying letter of transmittal (which together constitute the exchange offer), to
exchange up to $200,000,000 aggregate principal amount of our 7 7/8% Senior Notes due 2020, and the
guarantees thereof, which have been registered under the Securities Act of 1933, as amended, which
we refer to as the exchange notes, for an equal aggregate principal amount of our currently
outstanding 7 7/8% Senior Notes due 2020, and the guarantees thereof, that were issued on November
23, 2010, which we refer to as the old notes. We refer to the old notes and the exchange notes
collectively as the notes or the senior notes.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2011, UNLESS EXTENDED.
The material terms of the exchange offer are summarized below and are more fully described in this prospectus.
MATERIAL TERMS OF THE EXCHANGE OFFER
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The terms of the exchange notes are substantially identical to those of the old notes
except that the exchange notes are registered under the Securities Act of 1933, as amended,
and the transfer restrictions, registration rights and rights to special interest
applicable to the old notes do not apply to the exchange notes. |
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We will exchange all old notes that are validly tendered and not withdrawn prior to the
expiration of the exchange offer. |
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You may withdraw tenders of old notes at any time prior to the expiration of the
exchange offer. |
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We will not receive any proceeds from the exchange offer. |
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The exchange of notes should not be a taxable event for U.S. federal income tax
purposes. |
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There is no public market for the exchange notes. We have not applied, and do not intend
to apply, for listing of the exchange notes on any national securities exchange or
automated quotation system. |
See Risk Factors beginning on page 7 of this prospectus for a discussion of
certain risks that you should consider carefully before participating in the exchange offer.
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange
offer must acknowledge that it will deliver a prospectus in connection with any resale of the
exchange notes. This prospectus, as amended or supplemented, may be used by a broker-dealer in
connection with resales of exchange notes received in exchange for old notes that were acquired by
such broker-dealer as a result of market-making or other trading activities. We have agreed that
for a period of 180 days after the expiration of the exchange offer, we will make this prospectus
available to any broker-dealer for use in connection with any such resales. See Plan of
Distribution.
We are not asking you for a proxy, and you are requested not to send us a proxy.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus is , 2011
TABLE OF CONTENTS
We have not authorized anyone to give you any information or to make any representations about us
or the exchange offer other than those contained in this prospectus. If you are given any
information or representations about these matters that is not discussed in this prospectus, you
must not rely on that information. This prospectus is not an offer to sell or a solicitation of an
offer to buy securities anywhere or to anyone where or to whom we are not permitted to offer or
sell securities under applicable law. The delivery of this prospectus does not, under any
circumstances, mean that there has not been a change in our affairs since the date of this
prospectus. Subject to our obligation to amend or supplement this prospectus as required by law and
the rules of the Securities and Exchange Commission, the information contained in this prospectus
is correct only as of the date of this prospectus, regardless of the time of delivery of this
prospectus or any sale of these securities.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
Securities and Exchange Commission (the SEC) under the Securities Exchange Act of 1934, as
amended (the Exchange Act). We have also filed with the SEC a registration statement on Form S-4,
which you can access on the SECs Internet site at http://www.sec.gov, to register the exchange
notes. This prospectus, which forms part of the registration statement, does not contain all of the
information included in that registration statement. For further information about us and the
exchange notes offered in this prospectus, you should refer to the registration statement and its
exhibits. You may read and copy any materials we file with the SEC at the Public Reference Room of
the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
more information about the operation of the Public Reference Room. The SEC also maintains an
Internet site at http://www.sec.gov that contains reports, proxy and information statements, and
other information regarding issuers that file electronically with the SEC. You may also obtain
certain of these documents on our Internet site at http://www.mobilemini.com. Our web site and the
information contained on that site, or connected to that site, are not incorporated into and are
not a part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This prospectus incorporates by reference important business and financial information about
our company that is not included in or delivered with this document. The information incorporated
by reference is considered to be part of this prospectus, and later information that we file with
the SEC will automatically update and supersede this information. Any statement contained in this
prospectus or in any document incorporated or deemed to be incorporated by reference into this
prospectus that is modified or superseded by subsequently filed materials shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus. We incorporate by
reference the documents set forth below that we have previously filed with the SEC, including all
exhibits thereto, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act from now until the termination of the exchange offer (excluding any
Current Reports on Form 8-K to the extent disclosure is furnished and not filed):
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our Annual Report on Form 10-K for the year ended December 31, 2010; |
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our Definitive Proxy Statement on Schedule 14A related to our Annual Meeting of
Shareholders, filed on May 2, 2011 (with respect to information contained in such
Definitive Proxy Statement that is incorporated into Part III of our Annual Report on
Form 10-K for the year ended December 31, 2010 only); and |
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our Current Report on Form 8-K filed on April 19, 2011. |
You can obtain any of the documents incorporated by reference into this prospectus from the SECs
web site at the address described above. You may also request a copy of these filings, at no cost,
by writing or telephoning to the address and telephone set forth below. We will provide, without
charge, upon written or oral request, copies of any or all of the documents incorporated by
reference into this prospectus (excluding exhibits to such documents unless such exhibits are
specifically incorporated by reference therein). You should direct requests for documents to:
Mobile Mini, Inc., Attention: Investor Relations, 7420 South Kyrene Road, Suite 101, Tempe, Arizona
85283, Telephone: (480) 894-6311.
In order to obtain timely delivery of any copies of filings requested, please write or call us no
later than , 2011, which is five business days before the expiration date of the exchange
offer.
FORWARD-LOOKING STATEMENTS
This prospectus and other materials filed or to be filed by us with the SEC (as well as information
included in oral statements or other written statements made or to be made by us or our
representatives) contains or may contain forward-looking statements within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act. Forward-looking statements give our
current expectations or forecasts of future events. You can identify these statements by the fact
that they do not relate strictly to historical or current events. They include words such as may,
plan, seek, will, expect, intend, estimate, anticipate, believe or continue or
the negative thereof or variations thereon or similar terminology. These forward-looking statements
include statements regarding, among other things, our future actions; financial position;
management forecasts; efficiencies; cost savings, synergies and opportunities to increase
productivity and profitability; income and margins; liquidity; anticipated growth; the economy;
business strategy; budgets; projected costs and plans and objectives of management for future
operations; sales efforts; taxes; refinancing of existing debt; and the outcome of contingencies
such as legal proceedings and financial results.
Forward-looking statements may turn out to be wrong. They can be affected by inaccurate
assumptions or by known or unknown risks and uncertainties. We undertake no obligation to update or
revise any forward-looking statements, whether as a result of new information, future events or
otherwise. Important factors that could cause actual results to differ materially from our
expectations are disclosed under Risk Factors and elsewhere in this prospectus, including,
without limitation, in conjunction with the forward-
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looking statements included in this prospectus. These are factors that we think could cause our
actual results to differ materially from expected and historical results. Mobile Mini could also be
adversely affected by other factors besides those listed. All subsequent written and oral
forward-looking statements attributable to us, or persons acting on our behalf, are expressly
qualified in their entirety by the cautionary statements, factors and risks identified herein.
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SUMMARY
The following summary is qualified in its entirety by the more detailed information included
elsewhere or incorporated by reference in this prospectus. Because this is a summary, it may not
contain all of the information that may be important to you. You should read the entire prospectus
carefully, paying particular attention to the matters discussed under the caption Risk Factors,
as well as the information incorporated by reference (including our consolidated financial
statements and accompanying notes), request from us all additional public information you wish to
review relating to us and complete your own examination of us and the terms of the exchange offer
and the exchange notes before making an investment decision. Unless otherwise indicated, the terms
Mobile Mini, the Company, we, us, our and words of similar import refer to Mobile Mini,
Inc. and its subsidiaries on a consolidated basis.
We believe we are the worlds leading provider of portable storage solutions. We offer a wide range
of portable storage products in varying lengths and widths with an assortment of differentiated
features such as our patented locking systems, premium doors, electrical wiring and shelving. At
December 31, 2010, we operated a network of 121 locations in the United States, Canada, the United
Kingdom and The Netherlands. Our portable units provide secure, accessible temporary storage for a
diversified customer base, including large and small retailers, construction companies, medical
centers, schools, utilities, manufacturers and distributors, the U.S. and U.K. military, hotels,
restaurants, entertainment complexes and households. Our customers use our products for a wide
variety of storage applications, including retail and manufacturing supplies and inventory,
temporary offices, construction materials and equipment, documents and records and household goods.
Our principal executive offices are located at 7420 South Kyrene Road, Suite 101, Tempe, Arizona
85283, and our telephone number is (480) 894-6311. Our web site is located at www.mobilemini.com.
Information on our web site does not constitute part of this prospectus.
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The Exchange Offer
The following is a brief summary of certain material terms of the exchange offer. For a more
complete description of the terms of the exchange offer, see The Exchange Offer in this
prospectus.
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Background
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On November 23, 2010, we issued
$200,000,000 aggregate principal
amount of our 7 7/8% Senior Notes
due 2020, or the old notes, to
Deutsche Bank Securities, BofA
Merrill Lynch, J.P. Morgan, Wells
Fargo Securities and Oppenheimer &
Co., as the initial purchasers, in
a transaction exempt from the
registration requirements of the
Securities Act. The initial
purchasers then sold the old notes
to qualified institutional buyers
in reliance on Rule 144A and to
persons outside the United States
in reliance on Regulation S under
the Securities Act. Because the
old notes have been sold in
reliance on exemptions from
registration, the old notes are
subject to transfer restrictions.
In connection with the issuance of
the old notes, we entered into a
registration rights agreement with
the initial purchasers pursuant to
which we agreed, among other
things, to deliver this prospectus
and to complete an exchange offer
for the old notes. |
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The Exchange Offer
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We are offering to exchange up to
$200,000,000 aggregate principal
amount of our 7 7/8% Senior Notes
due 2020, or the exchange notes,
for an equal aggregate principal
amount of old notes. The terms of
the exchange notes are identical
in all material respects to the
terms of the old notes, except
that the exchange notes have been
registered under the Securities
Act and do not contain transfer
restrictions, registration rights
or special interest provisions.
You should read the discussion set
forth under Description of the
Exchange Notes for further
information regarding the exchange
notes. In order to be exchanged,
an old note must be properly
tendered and accepted. All old
notes that are validly tendered
and not withdrawn will be
exchanged. We will issue and
deliver the exchange notes
promptly after the expiration of
the exchange offer. |
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Resale of Exchange Notes
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Based on interpretations by the
SECs Staff, as detailed in a
series of no-action letters issued
to third parties unrelated to us,
we believe that the exchange notes
issued in the exchange offer may
be offered for resale, resold or
otherwise transferred by you
without compliance with the
registration and prospectus
delivery requirements of the
Securities Act as long as: |
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you, or the person or
entity receiving the exchange
notes, acquires the exchange notes
in the ordinary course of
business; |
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neither you nor any such
person or entity receiving the
exchange notes is engaging in or
intends to engage in a
distribution of the exchange notes
within the meaning of the federal
securities laws; |
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neither you nor any such
person or entity receiving the
exchange notes has an arrangement
or understanding with any person
or entity to participate in any
distribution of the exchange
notes; |
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neither you nor any such
person or entity receiving the
exchange notes is an affiliate
of Mobile Mini, Inc., as that term
is defined in Rule 405 under the
Securities Act; and |
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neither you nor any such
person or entity receiving the
exchange notes is prohibited by
any law or policy of the SEC from
participating in the exchange
offer. |
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We have not submitted a no-action
letter to the SEC and there can be
no assurance that the SEC would
make a similar determination with
respect to this exchange offer. If
you do not meet the conditions
described above, you must comply
with the registration and
prospectus delivery requirements
of the Securities Act in
connection with the resale of the
exchange notes. If you fail to
comply with these requirements you
may incur liabilities under the
Securities Act, and we will not
indemnify you for such
liabilities. |
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Expiration Date
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5:00 p.m., New York City time, on
, 2011, unless, in our
sole discretion, we extend or
terminate the exchange offer. |
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Withdrawal Rights
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You may withdraw tendered old
notes at any time prior to 5:00
p.m., New York City time, on the
expiration date. See The
Exchange OfferTerms of the
Exchange Offer. |
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Conditions to the Exchange Offer
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The exchange offer is subject to
certain customary conditions,
including our determination that
the exchange offer does not
violate any law, statute, rule,
regulation or interpretation by
the Staff of the SEC or any
regulatory authority or other
foreign, federal, state or local
government agency or court of
competent jurisdiction, some of
which may be waived by us. See
The Exchange OfferConditions to
the Exchange Offer. |
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Procedures for Tendering Old Notes
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You may tender your old notes by
instructing your broker or bank
where you keep the old notes to
tender them for you. In some
cases, you may be asked to submit
the blue-colored letter of
transmittal that may accompany
this prospectus. By tendering your
old notes, you will represent to
us, among other things, (1) that
you are, or the person or entity
receiving the exchange notes, is
acquiring the exchange notes in
the ordinary course of business,
(2) that neither you nor any such
other person or entity has any
arrangement or understanding with
any person to participate in the
distribution of the exchange notes
within the meaning of the
Securities Act and (3) that
neither you nor any such other
person or entity is our affiliate
within the meaning of Rule 405
under the Securities Act. Your old
notes must be tendered in integral
multiples of $1,000. Exchange
notes will be issued in minimum
denominations of $2,000 and
integral multiples of $1,000 in
excess thereof.
A timely confirmation of
book-entry transfer of your old
notes into the exchange agents
account at The Depository Trust
Company, or DTC, according to the
procedures described in this
prospectus under The Exchange
Offer, must be received by the
exchange agent before 5:00 p.m.,
New York City time, on the
expiration date. |
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Consequences of Failure to Exchange
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Any old notes not accepted for
exchange for any reason will be
credited to an account maintained
at DTC promptly after the
expiration or termination of the
exchange offer. Old notes that are
not tendered, or that are tendered
but not accepted, will be subject
to their existing transfer
restrictions. We will have no
further obligation, except under
limited circumstances, to provide
for registration under the
Securities Act of the old notes.
The liquidity of the old notes
could be adversely affected by the
exchange offer. See Risk
FactorsRisks Related to
Retention of the Old NotesIf you
do not exchange your old notes,
your old notes will continue to be
subject to the existing transfer
restrictions and you may be unable
to sell your old notes. |
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Taxation
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The exchange of old notes for
exchange notes by tendering
holders should not be a taxable
event for U.S. federal income tax
purposes. For more details, see
Material United States Federal
Income Tax Consequences. |
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Use of Proceeds
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We will not receive any proceeds
from the issuance of the exchange
notes in the exchange offer. For
more details, see Use of
Proceeds. |
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Exchange Agent
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Deutsche Bank Trust
Company Americas is serving as
the exchange agent in connection
with the exchange offer. The
telephone number and
facsimile number of the exchange
agent are listed under The
Exchange OfferExchange Agent. |
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Risk Factors
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An investment in the exchange
notes involves substantial risk.
See Risk Factors for a
description of certain of the
risks you should consider before
investing in the exchange notes. |
3
Terms of the Exchange Notes
The following is a brief summary of certain material terms of the exchange notes. For more complete
information about the exchange notes, see Description of the Exchange Notes in this prospectus.
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Issuer
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Mobile Mini, Inc. |
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Securities Offered
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$200,000,000 principal amount of 7 7/8% Senior Notes due 2020. |
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Maturity
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December 1, 2020. |
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Interest Rate
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7.875% per year (calculated using a 360-day year). |
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Interest Payment Dates
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Each June 1 and December 1, beginning on June 1, 2011. Interest will accrue from
the issue date of the old notes, November 23, 2010. |
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Guarantees
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All of our domestic subsidiaries will unconditionally guarantee the exchange notes
on a senior unsecured basis. The exchange notes will not be guaranteed by any of our
foreign subsidiaries. The guarantees may be released under certain circumstances.
The non-guarantor subsidiaries represented 16% of our consolidated
revenue and 11%
of our consolidated EBITDA for the fiscal year ended December 31, 2010. In
addition, these non-guarantor subsidiaries represented 13% of our
assets and 6%
of our liabilities as of December 31, 2010. |
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Optional Redemption
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At any time before December 1, 2015, we may redeem some or all of the exchange notes
at a price equal to 100% of their principal amount, plus the make-whole premium
described under Description of the Exchange Notes section under the heading
RedemptionOptional Redemption plus accrued and unpaid interest to the date of
redemption. In addition, on or after December 1, 2015, we may redeem some or all of
the exchange notes at the redemption prices listed in the Description of the
Exchange Notes section under the heading RedemptionOptional Redemption, plus
accrued and unpaid interest to the date of redemption. |
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Optional Redemption After
Equity Offerings
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At any time (which may be more than once) before December 1, 2013, we can choose to
redeem up to 35% of the outstanding notes with money that we raise in one or more
equity offerings, as long as: |
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we pay 107.875% of the face amount of the exchange notes, plus interest; |
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we redeem the exchange notes within 90 days of completing the equity
offering; and |
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at least 65% of the aggregate principal amount of exchange notes originally
issued remains outstanding afterwards. |
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Change of Control Offer
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If a change of control of Mobile Mini occurs, we must give holders of the exchange
notes the opportunity to sell us their notes at 101% of their face amount, plus
accrued interest. |
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Asset Sale Proceeds
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If we or our subsidiaries engage in asset sales, we generally must either invest the
net cash proceeds from such sales in our business within a period of time, prepay
debt under our revolving credit facility or make an offer to purchase a principal
amount of the exchange notes equal to the excess net cash proceeds. The purchase
price of the exchange notes will be 100% of their principal amount, plus accrued
interest. |
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Covenants
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The indenture governing the notes will contain covenants that, among other things,
limit our and our subsidiaries ability to: |
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incur additional debt; |
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pay dividends or distributions on our capital stock or repurchase our
capital stock; |
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issue preferred stock of subsidiaries; |
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make certain investments; |
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create liens on our assets to secure debt; |
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designate certain of our subsidiaries as unrestricted; |
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enter into transactions with affiliates; |
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merge or consolidate with another company; and |
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transfer and sell assets. |
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These covenants are subject to a number of important limitations and exceptions. See
Description of the Exchange NotesCertain Covenants. |
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Absence of Established Market
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The exchange notes are a new issue of securities, and currently there is no market
for the exchange notes. We do not intend to apply for the exchange notes to be
listed on any securities exchange, or to arrange for any quotation system to quote
them. Accordingly, we cannot assure you that liquid markets will develop for the
exchange notes. |
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Risk Factors
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An investment in the exchange notes involves substantial risk. See Risk Factors
for a description of certain of the risks you should consider before investing in
the exchange notes. |
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Trustee
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Law Debenture Trust Company of New York. |
5
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited consolidated ratio of earnings to fixed charges for
the periods shown:
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Year Ended December 31, |
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2006 |
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2009 |
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2010 |
Ratio of earnings
to fixed charges (a) |
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3.8 |
x |
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3.7 |
x |
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2.1 |
x |
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1.7 |
x |
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1.3 |
x |
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(a) |
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For the purposes of determining the ratio of earnings to fixed charges, earnings consist of income before provision for income taxes and
fixed charges. Fixed charges consist of interest expense, which includes the amortization of
deferred debt issuance costs and the interest portion of our rent expense. Interest expense excludes
debt restructuring expense and the write-off deferred financing costs related to the 2010 $50 million reduction in our ABL credit agreement. |
6
RISK FACTORS
Risks Related to Our Business
A continued economic slowdown, particularly in the non-residential construction sector of the
economy, could reduce demand from some of our customers, which could negatively impact our
financial results.
The recent recession has caused disruptions and extreme volatility in global financial markets and
increased rates of default and bankruptcy, and has reduced demand for portable storage and mobile
offices. These events have also caused substantial volatility in the stock market and layoffs and
other restrictions on spending by companies in almost every business sector. These events could
continue to impact our business in a variety of ways, including:
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reduction in consumer and business spending, which would result in a reduction in
demand for our products; |
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a negative impact on the ability of our customers to timely pay their obligations to
us or our vendors to timely supply services, thus reducing our cash flow; and |
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an increase in counterparty risk. |
Additionally, at the end of 2009 and 2010, customers in the construction industry, primarily in
non-residential construction, accounted for approximately 28% and 31%, respectively, of our leased
units. If the current economic slowdown in the non-residential construction sector continues, we
may continue to experience less demand for leases and sales of our products. Because most of the
cost of our leasing business is either fixed or semi- variable, our margins will contract if
revenue continues to fall without similar changes in expenses, which may be difficult to achieve,
and which ultimately may result in having a material adverse effect on our financial condition.
Our operational measures designed to increase revenue while continuing to control operating costs
may not generate the improvements and efficiencies we expect and may impact customers.
We have responded to the economic slowdown by employing a number of operational measures designed
to increase revenue while continuing to pursue our strategy of reducing operating costs where
available. Additionally, our hybrid sales strategy is designed to meet customer needs and drive
revenue growth but differs from our historic sales structure. The extent to which these strategies
will achieve the desired goals and efficiencies in 2011 and beyond is uncertain, as their success
depends on a number of factors, some of which are beyond our control.
Even if we carry out these measures in the manner we currently expect, we may not achieve the
improvements or efficiencies we anticipate, or on the timetable we anticipate. There may be
unforeseen productivity, revenue or other consequences resulting from our strategies that will
adversely affect us. Therefore, there can be no guarantee that our strategies will prove effective
in achieving desired profitability or margins.
Additionally, these strategies may have adverse consequences if our cost cutting and operational
changes are deemed by customers to adversely impact product quality or service levels.
Global capital and credit markets conditions could have an adverse effect on our ability to access
the capital and credit markets, including via our credit facility.
In 2009, due to the disruptions in the global credit markets, liquidity in the debt markets was
materially impacted, making financing terms for borrowers less attractive or, in some cases,
unavailable altogether. Renewed disruptions in the global credit markets or the failure of
additional lending institutions could result in the unavailability of certain types of debt
financing, including access to revolving lines of credit.
We monitor the financial strength of our larger customers, derivative counterparties, lenders and
insurance carriers on a periodic basis using publicly available information in order to evaluate
our exposure to those who have or who we believe may likely experience significant threats to their
ability to adequately service our needs. While we engage in borrowing and repayment activities
under our revolving credit facility on an almost daily basis and have not had any disruption in our
ability to access our revolving credit facility as needed, the current credit market conditions
could eventually increase the likelihood that one or more of our lenders may be unable to honor its
commitments under our revolving credit facility, which could have an adverse effect on our
business, financial condition and results of operations.
7
Additionally, in the future we may need to raise additional funds to, among other things, fund our
existing operations, improve or expand our operations, respond to competitive pressures, or make
acquisitions. If adequate funds are not available on acceptable terms, we may be unable to meet our
business or strategic objectives or compete effectively. If we raise additional funds by issuing
equity securities, stockholders may experience dilution of their ownership interests, and the newly
issued securities may have rights superior to those of the common stock. If we raise additional
funds by issuing debt, we may be subject to further limitations on our operations arising out of
the agreements governing such debt. If we fail to raise capital when needed, our business will be
negatively affected.
We face intense competition that may lead to our inability to increase or maintain our prices,
which could have a material adverse impact on our results of operations.
The portable storage and mobile office industries are highly competitive and highly fragmented.
Many of the markets in which we operate are served by numerous competitors, ranging from national
companies like ourselves, to smaller multi-regional companies and small, independent businesses
with a limited number of locations. See Business Competition in our Annual Report on Form 10-K
for the year ended December 31, 2010. Some of our principal competitors are less leveraged than we
are and have lower fixed costs and may be better able to withstand adverse market conditions within
the industry. Additionally, some of our competitors currently offer products outside of our core
container offerings but may have better brand recognition in their current end customer segments.
If these competitors use their brand awareness to enter our product offerings, customers may choose
these competitors products over ours and we could lose business. We generally compete on the basis
of, among other things, quality and breadth of service, expertise, reliability, and the price,
size, and attractiveness of our rental units. Our competitors are competing aggressively on the
basis of pricing and may continue to drive prices further down. To the extent that we choose to
match our competitors declining prices, it could harm our results of operations. To the extent
that we choose not to match or remain within a reasonable competitive distance from our
competitors pricing, it could also harm our results of operations, as we may lose rental volume.
Disruptions in our information technology systems (including our phone system) could limit our
ability to effectively operate, monitor and control our operations and adversely affect our
operating results.
Our information technology systems facilitate our ability to monitor and control our operations and
adjust to changing market conditions. We rely on a sophisticated phone and data network to
communicate with customers and within our branch system. Any disruptions in these systems or the
failure of these systems to operate as expected could, depending on the magnitude of the problem,
materially adversely affect our financial condition or operating results by limiting our capacity
to effectively monitor and control our operations and adjust to changing market conditions in a
timely manner. Like other companies, our information technology systems may be vulnerable to a
variety of interruptions due to events beyond our control, including, but not limited to, natural
disasters, terrorist attacks, telecommunications failures, computer viruses, hackers, and other
security issues. In addition, because our systems contain information about individuals and
businesses, our failure to maintain the security of the data we hold, whether the result of our own
error or the malfeasance or errors of others, could harm our reputation or give rise to legal
liabilities leading to lower revenues, increased costs and other potential material adverse effects
on our results of operations.
As Department of Transportation regulations increase, our operations could be negatively impacted
and competition for qualified drivers could increase and result in increased labor costs.
We operate in the United States pursuant to operating authority granted by the U.S. Department
of Transportation, or DOT. Our company drivers also must comply with the safety and fitness
regulations of the DOT, including those relating to drug and alcohol testing and hours-of-service.
Such matters as weight and equipment dimensions also are subject to government regulations. We also
may become subject to new or more restrictive regulations relating to fuel emissions, drivers
hours-of-service, ergonomics, on-board reporting of operations, collective bargaining, security at
ports, and other matters affecting safety or operating methods. The DOT is currently engaged in a
rulemaking proceeding regarding drivers hours-of-service, and the result could negatively impact
utilization of our equipment.
For example, in December 2010, CSA 2010, a new enforcement and compliance model implementing driver
standards in addition to our current standards, was launched. CSA 2010 may reduce the number of
eligible drivers and/or negatively impact our fleet ranking.
Under CSA 2010, drivers and fleets will be evaluated and ranked based on certain safety-related
standards. The methodology for determining a carriers DOT safety rating will be expanded to
include the on-road safety performance of the carriers drivers. As a result, certain current and
potential drivers may no longer be eligible to drive for us, our fleet could be ranked poorly as
compared to our peer firms, and our safety rating could be adversely impacted. A reduction in
eligible drivers or a poor fleet ranking may result in difficulty attracting and retaining
qualified drivers, which could result in increased compensation costs.
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We may not be able to generate sufficient cash to service all of our debt, and may be forced
to take other actions to satisfy our obligations under such indebtedness, which may not be
successful.
Our ability to make scheduled payments on or to refinance our obligations under, our debt will
depend on our financial and operating performance and that of our subsidiaries, which, in turn,
will be subject to prevailing economic and competitive conditions and to the financial and business
factors, many of which may be beyond our control. See the table under Managements Discussion and
Analysis of Financial Condition and Results of Operations Liquidity and Capital Resources
Contractual Obligations in our Annual Report on Form 10-K for the year ended December 31, 2010 for
disclosure regarding the amount of cash required to service our debt.
We may not maintain a level of cash flow from operating activities sufficient to permit us to pay
the principal, premium, if any, and interest on our indebtedness. If our cash flow and capital
resources are insufficient to fund our debt service obligations, we may be forced to reduce or
delay capital expenditures, sell assets, seek to obtain additional equity capital or restructure
our debt. In the future, our cash flow and capital resources may not be sufficient for payments of
interest on and principal of our debt, and such alternative measures may not be successful and may
not enable us to meet our scheduled debt service obligations. We may not be able to refinance any
of our indebtedness or obtain additional financing, particularly because of our anticipated high
levels of debt and the debt incurrence restrictions imposed by the agreements governing our debt,
as well as prevailing market conditions. In the absence of such operating results and resources, we
could face substantial liquidity problems and might be required to dispose of material assets or
operations to meet our debt service and other obligations. The instruments governing our
indebtedness restrict our ability to dispose of assets and use the proceeds from any such
dispositions. We may not be able to consummate those sales, or if we do, at an opportune time, or
the proceeds that we realize may not be adequate to meet debt service obligations when due.
Unionization by some or all of our employees could cause increases in operating costs.
None of our employees are presently covered by collective bargaining agreements. However, from time
to time various unions have attempted to organize some of our employees. We cannot predict the
outcome of any continuing or future efforts to organize our employees, the terms of any future
labor agreements, or the effect, if any, those agreements might have on our operations or financial
performance.
We believe that a unionized workforce would generally increase our operating costs, divert the
attention of management from servicing customers and increase the risk of work stoppages, all of
which could have a material adverse effect on our business, results of operations or financial
condition.
Fluctuations between the British pound and U.S. dollar could adversely affect our results of
operations.
We derived approximately 15.6% of our total revenues in 2010 from our operations in the U.K. The
financial position and results of operations of our U.K. subsidiaries are measured using the
British pound as the functional currency. As a result, we are exposed to currency fluctuations both
in receiving cash from our U.K. operations and in translating our financial results back into U.S.
dollars. We believe the impact on us of currency fluctuations from an operations perspective is
mitigated by the fact that the majority of our expenses, capital expenditures and revenues in the
U.K. are in British pounds. We do, however, have significant currency exposure as a result of
translating our financial results from British pounds into U.S. dollars for purposes of financial
reporting. Assets and liabilities of our U.K. subsidiary are translated at the period end exchange
rate in effect at each balance sheet date. Our income statement accounts are translated at the
average rate of exchange prevailing during each month. Translation adjustments arising from
differences in exchange rates from period to period are included in the accumulated other
comprehensive income (loss) in stockholders equity. A strengthening of the U.S. dollar against the
British pound reduces the amount of income or loss we recognize on a consolidated basis from our
U.K. business. We cannot predict the effects of further exchange rate fluctuations on our future
operating results. We are also exposed to additional currency transaction risk when our U.S.
operations incur purchase obligations in a currency other than in U.S. dollars and our U.K.
operations incur purchase obligations in a currency other than in British pounds. As exchange rates
vary, our results of operations and profitability may be harmed. We do not currently hedge our
currency transaction or translation exposure, nor do we have any current plans to do so. The risks
we face in foreign currency transactions and translation may continue to increase as we further
develop and expand our U.K.
If we determine that our goodwill has become impaired, we may incur significant charges to our
pre-tax income.
At December 31, 2010, we had $511.4 million of goodwill on our Consolidated Balance Sheet. Goodwill
represents the excess of cost over the fair value of net assets acquired in business combinations.
In the future, goodwill and intangible assets may increase as a result of future acquisitions.
Goodwill and intangible assets are reviewed at least annually for impairment. Impairment may result
from, among other things, deterioration in the performance of acquired businesses, adverse market
conditions, stock price, and adverse changes in applicable laws or regulations, including changes
that restrict the activities of the acquired business.
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For more information, see the Notes to Consolidated Financial Statements included in our financial
statements contained in our Annual Report on Form 10-K for the year ended December 31, 2010.
We are subject to environmental regulations and could incur costs relating to environmental
matters.
We are subject to various federal, state, and local environmental protection and health and safety
laws and regulations governing, among other things:
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the emission and discharge of hazardous materials into the ground, air, or water; |
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the exposure to hazardous materials; and |
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the generation, handling, storage, use, treatment, identification, transportation,
and disposal of industrial by-products, waste water, storm water, oil/fuel and other
hazardous materials. |
We are also required to obtain environmental permits from governmental authorities for certain of
our operations. If we violate or fail to obtain or comply with these laws, regulations, or permits,
we could be fined or otherwise sanctioned by regulators. We could also become liable if employees
or other parties are improperly exposed to hazardous materials.
Under certain environmental laws, we could be held responsible for all of the costs relating
to any contamination at, or migration to or from, our or our predecessors past or present
facilities. These laws often impose liability even if the owner, operator or lessor did not know
of, or was not responsible for, the release of such hazardous substances.
Environmental laws are complex, change frequently, and have tended to become more stringent
over time. The costs of complying with current and future environmental and health and safety laws,
and our liabilities arising from past or future releases of, or exposure to, hazardous substances,
may adversely affect our business, results of operations, or financial condition.
The supply and cost of used ISO containers fluctuates, which can affect our pricing and our ability
to grow.
As needed, we purchase, remanufacture and modify used ISO containers in order to expand our lease
fleet. If used ISO container prices increase substantially, we may not be able to manufacture
enough new units to grow our fleet. These price increases also could increase our expenses and
reduce our earnings, particularly if we are not able (due to competitive reasons or otherwise) to
raise our rental rates to absorb this increased cost. Conversely, an oversupply of used ISO
containers may cause container prices to fall. In such event, competitors may then lower the lease
rates on their storage units. As a result, we may need to lower our lease rates to remain
competitive. These events would cause our revenues and our earnings to decline.
The supply and cost of raw materials we use in manufacturing fluctuates and could increase our
operating costs.
As needed, we manufacture portable storage units to add to our lease fleet and for sale. In our
manufacturing process, we purchase steel, vinyl, wood, glass and other raw materials from various
suppliers. We cannot be sure that an adequate supply of these materials will continue to be
available on terms acceptable to us. The raw materials we use are subject to price fluctuations
that we cannot control. Changes in the cost of raw materials can have a significant effect on our
operations and earnings. Rapid increases in raw material prices are often difficult to pass through
to customers, particularly to leasing customers. If we are unable to pass on these higher costs,
our profitability could decline. If raw material prices decline significantly, we may have to write
down our raw materials inventory values. If this happens, our results of operations and financial
condition will decline.
Some zoning laws in the U.S. and Canada and temporary planning permission regulations in Europe
restrict the use of our portable storage and office units and therefore limit our ability to offer
our products in all markets.
Most of our customers use our storage units to store their goods on their own properties. Local
zoning laws and temporary planning permission regulations in some of our markets do not allow some
of our customers to keep portable storage and office units on their properties or do not permit
portable storage units unless located out of sight from the street. If local zoning laws or
planning permission regulations in one or more of our markets no longer allow our units to be
stored on customers sites, our business in that market will suffer.
If we fail to retain key management and personnel, we may be unable to implement our business plan.
One of the most important factors in our ability to profitably execute our business plan is our
ability to attract, develop and retain qualified personnel, including our CEO and operational
management. Our success in attracting and retaining qualified people is dependent on the resources
available in individual geographic areas and the impact on the labor supply due to general economic
conditions, as well as our ability to provide a competitive compensation package, including the
implementation of adequate drivers of
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retention and rewards based on performance, and work environment. The departure of any key
personnel and our inability to enforce non-competition agreements could have a negative impact on
our business.
We may not be able to successfully acquire new operations or integrate future acquisitions, which
could cause our business to suffer.
We may not be able to successfully complete potential strategic acquisitions if we cannot reach
agreement on acceptable terms or for other reasons. If we buy a company, we may experience
difficulty integrating that Companys personnel and operations, which could negatively affect our
operating results. In addition:
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the key personnel of the acquired company may decide not to work for us; |
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we may experience business disruptions as a result of information technology systems
conversions; |
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we may experience additional financial and accounting challenges and complexities in
areas such as tax planning, treasury management, and financial reporting; |
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we may be held liable for environmental risks and liabilities as a result of our
acquisitions, some of which we may not have discovered during our due diligence; |
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our ongoing business may be disrupted or receive insufficient management attention;
and |
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we may not be able to realize the cost savings or other financial benefits we
anticipated. |
In connection with future acquisitions, we may assume the liabilities of the companies we acquire.
These liabilities, including liabilities for environmental-related costs, could materially and
adversely affect our business. We may have to incur debt or issue equity securities to pay for any
future acquisition, the issuance of which could involve the imposition of restrictive covenants or
be dilutive to our existing stockholders.
If we do not manage new markets effectively, some of our new branches and acquisitions may lose
money or fail, and we may have to close unprofitable locations. Closing a branch in such
circumstances would likely result in additional expenses that would cause our operating results to
suffer.
In connection with expansion outside of the U.S., we face fluctuations in currency exchange rates,
exposure to additional regulatory requirements, including certain trade barriers, changes in
political and economic conditions, and exposure to additional and potentially adverse tax regimes.
Our success in Europe depends, in part, on our ability to anticipate and effectively manage these
and other risks. Our failure to manage these risks may adversely affect our growth, in Europe and
elsewhere, and lead to increased administrative costs.
We are exposed to various possible claims relating to our business and our insurance may not fully
protect us.
We are exposed to various possible claims relating to our business. These possible claims include
those relating to (1) personal injury or death caused by containers, offices or trailers rented or
sold by us, (2) motor vehicle accidents involving our vehicles and our employees, (3)
employment-related claims, (4) property damage, and (5) commercial claims. Our insurance policies
have deductibles or self-insured retentions which would require us to expend amounts prior to
taking advantage of coverage limits. Currently, we believe that we have adequate insurance coverage
for the protection of our assets and operations. However, our insurance may not fully protect us
for certain types of claims, such as claims for punitive damages or for damages arising from
intentional misconduct, which are often alleged in third party lawsuits. In addition, we may be
exposed to uninsured liability at levels in excess of our policy limits.
If we are found liable for any significant claims that are not covered by insurance, our liquidity
and operating results could be materially adversely affected. It is possible that our insurance
carrier may disclaim coverage for any class action and derivative lawsuits against us. It is also
possible that some or all of the insurance that is currently available to us will not be available
in the future on economically reasonable terms or not available at all. In addition, whether we are
covered by insurance or not, certain claims may have the potential for negative publicity
surrounding such claims, which may lead to lower revenues, as well as additional similar claims
being filed.
We may not be able to adequately protect our intellectual property and other proprietary rights
that are material to our business.
Our ability to compete effectively depends in part upon protection of our rights in trademarks,
copyrights and other intellectual property rights we own or license, including patents to our
locking system. Our use of contractual provisions, confidentiality
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procedures and agreements, and trademark, copyright, unfair competition, trade secret and other
laws to protect our intellectual property and other proprietary rights may not be adequate.
Litigation may be necessary to enforce our intellectual property rights and protect our proprietary
information and patents, or to defend against claims by third parties that our services or our use
of intellectual property infringe their intellectual property rights. Any litigation or claims
brought by or against us could result in substantial costs and diversion of our resources. A
successful claim of trademark, copyright or other intellectual property infringement against us
could prevent us from providing services, which could harm our business, financial condition or
results of operations. In addition, a breakdown in our internal policies and procedures may lead to
an unintentional disclosure of our proprietary, confidential or material non-public information,
which could in turn harm our business, financial condition or results of operations.
Risks Related To Our Indebtedness and the Exchange Notes
We operate with a high amount of debt and we may incur significant additional indebtedness.
Our operations are capital intensive, and we operate with a high amount of debt relative to our
size. At December 31, 2010 as adjusted after giving effect to the issuance of the existing notes,
we had the following outstanding issuances of senior notes (i) $150.0 million in aggregate
principal amount of 6.875% senior notes due 2015; (ii) $200.0 million in aggregate principal amount
of 7.785% senior notes due 2020; and (iii) $22.3 million of outstanding notes under a previous
issuance of $200.0 million in aggregate principal amount of 9.75% senior notes due 2014, which were
originally issued by MSG and assumed by us in connection with our acquisition of MSG in June 2008.
In January 2011, the remaining outstanding amount of the 9.75% senior notes due 2014 was redeemed
and ceased to be outstanding. Additionally, we have entered into an ABL Credit Agreement under
which we may borrow up to $850.0 million on a revolving loan basis, which means that amounts repaid
may be reborrowed. All amounts outstanding under the ABL Credit Agreement are due on June 27, 2013.
At December 31, 2010, we had approximately $771.4 million of indebtedness. Our substantial
indebtedness could have adverse consequences. For example, it could:
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require us to dedicate a substantial portion of our cash flow from operations to
payments on our indebtedness, which could reduce the availability of our cash flow to
fund future working capital, capital expenditures, acquisitions and other general
corporate purposes; |
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make it more difficult for us to satisfy our obligations with respect to our senior
notes; |
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expose us to the risk of increased interest rates, as certain of our borrowings will
be at variable rates of interest; |
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require us to sell assets to reduce indebtedness or influence our decisions about
whether to do so; |
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increase our vulnerability to general adverse economic and industry conditions; |
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increase our vulnerability to general adverse economic and industry conditions; |
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limit our flexibility in planning for, or reacting to, changes in our business and
our industry; |
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restrict us from making strategic acquisitions or pursuing business opportunities;
and |
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limit, along with the financial and other restrictive covenants in our indebtedness,
among other things, our ability to borrow additional funds. Failing to comply with those
covenants could result in an event of default which, if not cured or waived, could have
a material adverse effect on our business, financial condition and results of
operations. |
Your right to receive payment on the exchange notes will be effectively subordinated to our
obligations under the senior secured revolving credit facility.
The exchange notes will not be secured. Our obligations under our revolving credit facility are
secured by a first priority security interest on substantially all of our assets and the assets of
our domestic subsidiaries and certain foreign subsidiaries, including the stock or other ownership
interests in our domestic subsidiaries and 65% of the stock or other ownership interests of 1st
tier foreign subsidiaries. In the event of our liquidation or insolvency, or if any of our secured
indebtedness is accelerated, the assets securing such indebtedness will be first applied to repay
our obligations under our secured indebtedness in full and then to repay our obligations under our
unsecured indebtedness, including under the exchange notes. As a result, the exchange notes are
effectively subordinated to our revolving credit facility to the extent of the value of the assets
securing that indebtedness and the holders of the exchange notes would, in all likelihood recover
ratably less than the lenders of our secured indebtedness in the event of a bankruptcy or
insolvency. As of December 31, 2010, after giving pro forma effect to the issuance of the exchange
notes in this offering, we would have had $420.2 million of senior secured indebtedness outstanding
and approximately $362.5 million of additional borrowing availability based upon the most restrictive
covenant in the agreement under our revolving credit facility, net of outstanding letters of credit
obligations of approximately $8.8 million.
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Covenants in our debt instruments restrict or prohibit our ability to engage in or enter into a
variety of transactions.
The indentures governing our 6.875% senior notes and 7.785% senior notes, including exchange notes,
contain various covenants that limit our discretion in operating our business. In particular, we
are limited in our ability to merge, consolidate or transfer substantially all of our assets, issue
preferred stock of subsidiaries and create liens on our assets to secure debt. In addition, if
there is a default, and we do not maintain borrowing availability in excess of certain
pre-determined levels, we may be unable to incur additional indebtedness, make restricted payments
(including paying cash dividends on our capital stock) and redeem or repurchase our capital stock.
Our senior notes, including exchange notes, do not contain financial maintenance covenants and the
financial maintenance covenants under our revolving credit facility are not applicable unless we
fall below $100 million in borrowing availability.
Our revolving credit facility requires us, under certain limited circumstances, to maintain certain
financial ratios and limits our ability to make capital expenditures. These covenants and ratios
could have an adverse effect on our business by limiting our ability to take advantage of
financing, merger and acquisition or other corporate opportunities and to fund our operations.
Breach of a covenant in our debt instruments could cause acceleration of a significant portion of
our outstanding indebtedness. Any future debt could also contain financial and other covenants more
restrictive than those imposed under the indentures governing the senior notes, including exchange
notes, and the revolving credit facility.
A breach of a covenant or other provision in any debt instrument governing our current or future
indebtedness could result in a default under that instrument and, due to cross-default and
cross-acceleration provisions, could result in a default under our other debt instruments. Upon the
occurrence of an event of default under the revolving credit facility or any other debt instrument,
the lenders could elect to declare all amounts outstanding to be immediately due and payable and
terminate all commitments to extend further credit. If we were unable to repay those amounts, the
lenders could proceed against the collateral granted to them, if any, to secure the indebtedness.
If the lenders under our current or future indebtedness accelerate the payment of the indebtedness,
we cannot assure you that our assets or cash flow would be sufficient to repay in full our
outstanding indebtedness, including the exchange notes.
The amount we can borrow under our revolving credit facility depends in part on the value of the
portable storage units in our lease fleet. If the value of our lease fleet declines under
appraisals our lenders receive, the amount we can borrow will similarly decline. We are required to
satisfy several covenants with our lenders that are affected by changes in the value of our lease
fleet. We would be in breach of certain of these covenants if the value of our lease fleet drops
below specified levels. If this happens, we may not be able to borrow the amounts we need to expand
our business, and we may be forced to liquidate a portion of our existing fleet.
Federal and state fraudulent transfer laws may permit a court to void the exchange notes and the
guarantees, and, if that occurs, you may not receive any payments on the exchange notes.
The issuance of the exchange notes and the guarantees may be subject to review under federal and
state fraudulent transfer and conveyance statutes. While the relevant laws may vary from state to
state, under such laws the payment of consideration will be a fraudulent conveyance if (1) we paid
the consideration with the intent of hindering, delaying or defrauding creditors or (2) we or any
of our guarantors, as applicable, received less than reasonably equivalent value or fair
consideration in return for issuing either the exchange notes or a guarantee, and, in the case of
(2) only, one of the following is also true:
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we or any of our guarantors were or was insolvent or rendered insolvent by reason of
the incurrence of the indebtedness; or |
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payment of the consideration left us or any of our guarantors with an unreasonably
small amount of capital to carry on the business; or |
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we or any of our guarantors intended to, or believed that we or it would, incur debts
beyond our or its ability to pay as they mature. |
If a court were to find that the issuance of the exchange notes or a guarantee was a fraudulent
conveyance, the court could void the payment obligations under the exchange notes or such guarantee
or further subordinate the exchange notes or such guarantee to presently existing and future
indebtedness of ours or such guarantor, or require the holders of the exchange notes to repay any
amounts received with respect to the exchange notes or such guarantee. In the event of a finding
that a fraudulent conveyance occurred, you may not receive any repayment on the exchange notes.
Further, the voidance of the exchange notes could result in an event of default with respect to our
other debt and that of our subsidiaries that could result in acceleration of such debt.
Generally, an entity would be considered insolvent if, at the time it incurred indebtedness:
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the sum of its debts, including contingent liabilities, were greater than the fair
salable value of all its assets; or
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the present fair salable value of its assets were less than the amount that would be
required to pay its probable liability on its existing debts and liabilities, including
contingent liabilities, as they become absolute and mature; or |
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it could not pay its debts as they become due. |
We cannot be certain as to the standards a court would use to determine whether or not we or the
guarantors were solvent at the relevant time, or regardless of the standard that a court uses, that
the issuance of the exchange notes and the guarantees would not be subordinated to our or any
guarantors other debt. If any other subsidiary of ours guarantees the exchange notes in the
future, such guarantee will become subject to the same risks described above.
If any of the guarantees were legally challenged, such challenged guarantee could also be subject
to the claim that, since the guarantee was incurred for our benefit, and only indirectly for the
benefit of the guarantor, the obligations of the applicable guarantor were incurred for less than
fair consideration. A court could thus void the obligations under the guarantees, subordinate them
to the applicable guarantors other debt or take other action detrimental to the holders of the
exchange notes.
We may be unable to repurchase the exchange notes upon a change of control.
In the event of a change of control (as defined in the indenture for the exchange notes), we must
offer to purchase the exchange notes at a purchase price equal to 101% of the principal amount,
plus accrued and unpaid interest to the date of repurchase. See Description of the Exchange
NotesChange of Control. The indenture governing our existing 6.875% Notes due 2015 contains a
similar provision that would require us to make an offer to repurchase such exchange notes in the
event of a change of control as defined in that indenture. In the event that we are required to
make such offer with respect to the exchange notes offered hereby, there can be no assurance that
we would have sufficient funds available to purchase any exchange notes, and we may be required to
refinance the exchange notes. There can be no assurance that we would be able to accomplish a
refinancing or, if a refinancing were to occur, that it would be accomplished on commercially
reasonable terms.
Our revolving credit facility prohibits us from repurchasing any of the exchange notes, except
under limited circumstances. Our revolving credit facility also provides that certain change of
control events would constitute a default. In the event a change of control occurs at a time when
we are prohibited from purchasing the exchange notes, we could seek the consent of the lenders
under the revolving credit facility to purchase the exchange notes. If we did not obtain such a
consent, we would remain prohibited from purchasing the exchange notes. In this case, our failure
to purchase would constitute an event of default under the indenture governing the exchange notes.
We may not be able to generate sufficient cash to service all of our debt, and may be forced to
take other actions to satisfy our obligations under such indebtedness, which may not be successful.
Our ability to make scheduled payments on or to refinance our obligations under, our debt will
depend on our financial and operating performance and that of our subsidiaries, which, in turn,
will be subject to prevailing economic and competitive conditions and to the financial and business
factors, many of which may be beyond our control. See the table under Managements Discussion and
Analysis of Financial Condition and Results of OperationsLiquidity and Capital
ResourcesContractual Obligations in our Annual Report on Form 10-K for the year ended December
31, 2010 for disclosure regarding the amount of cash required to service our debt.
We may not maintain a level of cash flow from operating activities sufficient to permit us to pay
the principal, premium, if any, and interest on our indebtedness. If our cash flow and capital
resources are insufficient to fund our debt service obligations, we may be forced to reduce or
delay capital expenditures, sell assets, seek to obtain additional equity capital or restructure
our debt. In the future, our cash flow and capital resources may not be sufficient for payments of
interest on and principal of our debt, and such alternative measures may not be successful and may
not permit us to meet our scheduled debt service obligations. We may not be able to refinance any
of our indebtedness or obtain additional financing, particularly because of our anticipated high
levels of debt and the debt incurrence restrictions imposed by the agreements governing our debt,
as well as prevailing market conditions. In the absence of such operating results and resources, we
could face substantial liquidity problems and might be required to dispose of material assets or
operations to meet our debt service and other obligations. The instruments governing our
indebtedness restrict our ability to dispose of assets and use the proceeds from any such
dispositions. We may not be able to consummate those sales, or if we do, at an opportune time, or
the proceeds that we realize may not be adequate to meet debt service obligations when due.
The right to receive payment on the exchange notes and the guarantees will be structurally
subordinated to the liabilities of non-guarantor subsidiaries.
The exchange notes are structurally subordinated to all indebtedness of our subsidiaries that are
not guarantors of the exchange notes. While the indenture governing the exchange notes will limit
the indebtedness and activities of these non-guarantor subsidiaries, holders of indebtedness of,
and trade creditors of, non-guarantor subsidiaries, are entitled to payments of their claims from
the assets
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of such subsidiaries before those assets are made available for distribution to us or any
guarantor, as direct or indirect shareholder. Our non-guarantor subsidiaries represented 16% of our
consolidated revenue and 11% of our consolidated EBITDA for the fiscal year ended December 31,
2010. In addition, these non-guarantor subsidiaries represented 13%
of our assets and 6% of our
liabilities as of December 31, 2010.
Accordingly, in the event that any of our non-guarantor subsidiaries becomes insolvent, liquidates
or otherwise reorganizes:
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the creditors of the guarantors (including the holders of the exchange notes) will have
no right to proceed against such subsidiarys assets; and |
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the creditors of such non-guarantor subsidiary, including trade creditors, will
generally be entitled to payment in full from the sale or other disposal of assets of such
subsidiary before any guarantor as direct or indirect shareholder will be entitled to
receive any distributions from such subsidiary. |
An active trading market may not develop for the exchange notes.
The exchange notes are new securities for which there currently is no established market, and we
cannot be sure if an active trading market will develop for the exchange notes. We do not intend to
apply for listing of the exchange notes, on any securities exchange or on any automated dealer
quotation system. Although we have been informed by the initial purchasers that they currently
intend to make a market in the exchange notes, they are not obligated to do so and any market
making may be discontinued at any time without notice.
The liquidity of, and trading market for the exchange notes may also be adversely affected by,
among other things:
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changes in the overall market for high yield securities; |
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changes in our financial performance or prospects; |
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changes in our credit rating; |
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the prospects for companies in our industry generally; |
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the number of holders of the exchange notes; |
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the interest of securities dealers in making a market for the exchange notes; and |
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prevailing interest rates. |
The trading price of the exchange notes may be volatile.
Historically, the market for non-investment grade debt has been subject to disruptions that have
caused substantial volatility in the prices of securities similar to the exchange notes. We cannot
assure you that any such disruptions may not adversely affect the prices at which you may sell your
exchange notes. The exchange notes may trade at a discount from the initial offering price of the
exchange notes, depending upon prevailing interest rates, the market for similar exchange notes,
our performance and other factors.
Risks Related to Retention of the Old Notes
If you do not exchange your old notes, your old notes will continue to be subject to the existing
transfer restrictions and you may be unable to sell your old notes.
We will only issue exchange notes in exchange for old notes that are validly tendered in accordance
with the procedures set forth in this prospectus. Therefore, you should carefully follow the
instructions on how to tender your old notes. See The Exchange OfferProcedures for Tendering Old
Notes. We did not register the old notes under the Securities Act, nor do we intend to do so
following the exchange offer. If you do not exchange your old notes in the exchange offer, or if
your old notes are not accepted for exchange, then, after we consummate the exchange offer, you may
continue to hold old notes that are subject to the existing transfer restrictions and may be
transferred only in limited circumstances under the securities laws. If you do not exchange your
old notes, you will lose your right to have your old notes registered under the federal securities
laws, except in limited circumstances. As a result, you will not be able to offer or sell old notes
except in reliance on an exemption from, or in a transaction not subject to, the Securities Act and
applicable state securities laws.
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Because we anticipate that most holders of old notes will elect to exchange their old notes, we
expect that the liquidity of the trading market for any old notes remaining after the completion of
the exchange offer will be substantially reduced. Any old notes tendered and exchanged in the
exchange offer will reduce the aggregate number of old notes outstanding. Accordingly, the
liquidity of the market for any old notes could be adversely affected and you may be unable to sell
them.
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USE OF PROCEEDS
We will not receive any cash proceeds from the issuance of the exchange notes in the exchange
offer. In consideration for issuing the exchange notes, we will receive in exchange old notes in
like principal amount. The form and terms of the exchange notes are identical in all material
respects to the form and terms of the old notes, except that the transfer restrictions and
registration rights applicable to the old notes do not apply to the exchange notes. The old notes
surrendered in exchange for the exchange notes will be retired and canceled and cannot be reissued.
Accordingly, issuance of the exchange notes will not result in any increase in our outstanding
debt.
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THE EXCHANGE OFFER
Purpose of the Exchange Offer
The exchange offer is designed to provide holders of old notes with an opportunity to acquire
exchange notes which, unlike the old notes, will be freely transferable at all times, subject to
any restrictions on transfer imposed by state blue sky laws and provided that the holder is not
our affiliate within the meaning of the Securities Act and represents that the exchange notes are
being acquired in the ordinary course of the holders business and the holder is not engaged in,
and does not intend to engage in, a distribution of the exchange notes.
The old notes were originally issued and sold on November 23, 2010, the issue date, to the initial
purchasers, pursuant to the purchase agreement dated November 23, 2010. The old notes were issued
and sold in a transaction not registered under the Securities Act in reliance upon the exemption
provided by Section 4(2) of the Securities Act. The concurrent resale of the old notes by the
initial purchasers to investors was done in reliance upon the exemptions provided by Rule 144A and
Regulation S promulgated under the Securities Act. The old notes may not be reoffered, resold or
transferred other than (i) to us or our subsidiaries, (ii) to a qualified institutional buyer in
compliance with Rule 144A promulgated under the Securities Act, (iii) outside the United States to
a non-U.S. person within the meaning of Regulation S under the Securities Act, (iv) pursuant to the
exemption from registration provided by Rule 144 promulgated under the Securities Act (if
available) or (v) pursuant to an effective registration statement under the Securities Act.
In connection with the original issuance and sale of the old notes, we entered into a registration
rights agreement, pursuant to which we agreed to file with the SEC a registration statement
covering the exchange by us of the exchange notes for the old notes, or the exchange offer. The
registration rights agreement provides that we will file with the SEC an exchange offer
registration statement on an appropriate form under the Securities Act and offer to holders of old
notes who are able to make certain representations the opportunity to exchange their old notes for
exchange notes.
Under existing interpretations by the Staff of the SEC as set forth in no-action letters issued to
third parties in other transactions, the exchange notes would, in general, be freely transferable
after the exchange offer without further registration under the Securities Act; provided, however,
that in the case of broker-dealers participating in the exchange offer, a prospectus meeting the
requirements of the Securities Act must be delivered by such broker-dealers in connection with
resales of the exchange notes. We have agreed to furnish a prospectus meeting the requirements of
the Securities Act to any such broker-dealer for use in connection with any resale of any exchange
notes acquired in the exchange offer. A broker-dealer that delivers such a prospectus to purchasers
in connection with such resales will be subject to certain of the civil liability provisions under
the Securities Act and will be bound by the provisions of the registration rights agreement
(including certain indemnification rights and obligations).
Each holder of old notes that exchanges such old notes for exchange notes in the exchange offer
will be deemed to have made certain representations, including representations that (i) any
exchange notes to be received by it will be acquired in the ordinary course of its business, (ii)
it has no arrangement or understanding with any person to participate in the distribution (within
the meaning of the Securities Act) of exchange notes and (iii) it is not our affiliate as defined
in Rule 405 under the Securities Act, or if it is an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the extent applicable.
If the holder is not a broker-dealer, it will be required to represent that it is not engaged in,
and does not intend to engage in, the distribution of exchange notes. If the holder is a
broker-dealer that will receive exchange notes for its own account in exchange for old notes that
were acquired as a result of market-making activities or other trading activities, it will be
required to acknowledge that it will deliver a prospectus in connection with any resale of such
exchange notes.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this prospectus and in the letter of
transmittal, we will accept any and all old notes validly tendered and not withdrawn prior to 5:00
p.m., New York City time, on the expiration date. Subject to the minimum denomination requirements
of the exchange notes, the exchange notes are being offered in exchange for a like principal amount
of old notes. Old notes may be exchanged only in denominations of $2,000 and integral multiples of
$1,000. Holders may tender all, some or none of their old notes pursuant to the exchange offer.
The form and terms of the exchange notes will be identical in all material respects to the form and
terms of the old notes except that (i) the exchange notes will be registered under the Securities
Act and, therefore, will not bear legends restricting the transfer thereof and (ii) holders of the
exchange notes will not be entitled to certain rights of holders of old notes under and related to
the registration rights agreement. The exchange notes will evidence the same debt as the old notes
and will be entitled to the benefits of the indenture. The exchange notes will be treated as a
single class under the indenture with any old notes that remain outstanding. The exchange offer is
not conditioned upon any minimum aggregate principal amount of old notes being tendered for
exchange.
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Expiration Date; Extensions; Termination; Amendments
The exchange offer will expire at 5:00 p.m., New York City time, on , 2011 (21 business
days following the date notice of the exchange offer was mailed to the holders). We reserve the
right to extend the exchange offer at our discretion, in which event the term expiration date
shall mean the time and date on which the exchange offer as so extended shall expire. Any such
extension will be communicated to the exchange agent either orally or in writing and will be
followed promptly by a press release or other permitted means which will be made no later than 9:00
a.m., New York City time, on the business day immediately following the previously scheduled
expiration date.
We reserve the right to extend or terminate the exchange offer and not accept for exchange any old
notes if any of the events set forth below under Conditions to the Exchange Offer occur, and
are not waived by us, by giving oral or written notice of such delay or termination to the exchange
agent. See Conditions to the Exchange Offer.
We also reserve the right to amend the terms of the exchange offer in any manner, provided,
however, that if we amend the exchange offer in a manner that we determine constitutes a material
or significant change, we will extend the exchange offer so that it remains open for a period of
five to ten business days after such amendment is communicated to holders, depending upon the
significance of the amendment.
Without limiting the manner in which we may choose to make a public announcement of any extension,
termination or amendment of the exchange offer, we will comply with applicable securities laws by
disclosing any such amendment by means of a prospectus supplement that we distribute to holders of
the old notes. We will have no other obligation to publish, advertise or otherwise communicate any
such public announcement other than by making a timely release through any appropriate news agency.
Procedures for Tendering Old Notes
Since the old notes are represented by global book-entry notes, DTC, as depositary, or its nominee
is treated as the registered holder of the old notes and will be the only entity that can tender
your old notes for exchange notes. Therefore, to tender old notes subject to this exchange offer
and to obtain exchange notes, you must instruct the institution where you keep your old notes to
tender your old notes on your behalf so that they are received prior to the expiration of this
exchange offer.
The letter of transmittal that accompanies this prospectus may be used by you to give such
instructions.
YOU SHOULD CONSULT YOUR ACCOUNT REPRESENTATIVE AT THE BROKER OR BANK WHERE YOU KEEP YOUR OLD NOTES
TO DETERMINE THE PREFERRED PROCEDURE.
IF YOU WISH TO ACCEPT THIS EXCHANGE OFFER, PLEASE INSTRUCT YOUR BROKER OR ACCOUNT REPRESENTATIVE IN
TIME FOR YOUR OLD NOTES TO BE TENDERED BEFORE THE 5:00 P.M. (NEW YORK CITY TIME) DEADLINE ON
, 2011.
You may tender all, some or none of your old notes in this exchange offer. However, your old notes
may be tendered only in integral multiples of $1,000.
When you tender your old notes and we accept them, the tender will be a binding agreement between
you and us in accordance with the terms and conditions in this prospectus.
We will decide all questions about the validity, form, eligibility, acceptance and withdrawal of
tendered old notes, and our reasonable determination will be final and binding on you. We reserve
the absolute right to:
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reject any and all tenders of any particular old note not properly tendered; |
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refuse to accept any old note if, in our judgment or the judgment of our counsel,
the acceptance would be unlawful; and |
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waive any defects or irregularities or conditions to the exchange offer as to any
particular old notes before the expiration of the exchange offer. |
Our reasonable interpretation of the terms and conditions of the exchange offer will be final and
binding on all parties. You must cure any defects or irregularities in connection with tenders of
old notes as we will determine. Neither we, the exchange agent nor any other person will incur any
liability for failure to notify you of any defect or irregularity with respect to your tender of
old notes. If we waive any terms or conditions pursuant to (3) above with respect to a note holder,
we will extend the same waiver to all note holders with respect to that term or condition being
waived.
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Deemed Representations
To participate in the exchange offer, we require that you represent to us that:
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you or any other person acquiring exchange notes in exchange for your old notes
in the exchange offer is acquiring them in the ordinary course of business; |
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neither you nor any other person acquiring exchange notes in exchange for your
old notes in the exchange offer is engaging in or intends to engage in a distribution of
the exchange notes within the meaning of the federal securities laws; |
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neither you nor any other person acquiring exchange notes in exchange for your
old notes has an arrangement or understanding with any person to participate in the
distribution of exchange notes issued in the exchange offer; |
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neither you nor any other person acquiring exchange notes in exchange for your
old notes is our affiliate as defined under Rule 405 of the Securities Act; and |
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if you or another person acquiring exchange notes in exchange for your old notes
is a broker-dealer and you acquired the old notes as a result of market-making
activities or other trading activities, you acknowledge that you will deliver a
prospectus meeting the requirements of the Securities Act in connection with any resale
of the exchange notes. |
BY TENDERING YOUR OLD NOTES YOU ARE DEEMED
TO HAVE MADE THESE REPRESENTATIONS.
Broker-dealers who cannot make the representations in item (v) of the paragraph above cannot
use this exchange offer prospectus in connection with resales of the exchange notes issued in the
exchange offer.
If you are our affiliate, as defined under Rule 405 of the Securities Act, if you are a
broker-dealer who acquired your old notes in the initial offering and not as a result of
market-making or trading activities, or if you are engaged in or intend to engage in or have an
arrangement or understanding with any person to participate in a distribution of exchange notes
acquired in the exchange offer, you or that person:
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may not rely on the applicable interpretations of the Staff of the SEC and
therefore may not participate in the exchange offer; and |
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must comply with the registration and prospectus delivery requirements of the
Securities Act or an exemption therefrom when reselling the old notes. |
Procedures for Brokers and Custodian Banks; DTC ATOP Account
In order to accept this exchange offer on behalf of a holder of old notes you must submit or cause
your DTC participant to submit an Agents Message as described below.
The exchange agent, on our behalf, will seek to establish an Automated Tender Offer Program, or
ATOP, account with respect to the old notes at DTC promptly after the delivery of this prospectus.
Any financial institution that is a DTC participant, including your broker or bank, may make
book-entry tender of old notes by causing the book-entry transfer of such old notes into our ATOP
account in accordance with DTCs procedures for such transfers. Concurrently with the delivery of
old notes, an Agents Message in connection with such book-entry transfer must be transmitted by
DTC to, and received by, the exchange agent prior to 5:00 p.m., New York City time, on the
expiration date, or the guaranteed delivery procedures described below must be complied with. The
confirmation of a book-entry transfer into the ATOP account as described above is referred to
herein as a Book-Entry Confirmation.
The term Agents Message means a message transmitted by the DTC participants to DTC, and
thereafter transmitted by DTC to the exchange agent, forming a part of the Book-Entry Confirmation
which states that DTC has received an express acknowledgment from the participant in DTC described
in such Agents Message stating that such participant and beneficial holder agree to be bound by
the terms of this exchange offer.
Each Agents Message must include the following information:
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Name of the beneficial owner tendering such old notes; |
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Account number of the beneficial owner tendering such old notes; |
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Principal amount of old notes tendered by such beneficial owner; and |
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A confirmation that the beneficial holder of the old notes tendered has made the
representations for the benefit of us set forth under Deemed Representations above. |
BY SENDING AN AGENTS MESSAGE THE DTC PARTICIPANT IS DEEMED TO HAVE CERTIFIED THAT THE BENEFICIAL
HOLDER FOR WHOM OLD NOTES ARE BEING TENDERED HAS BEEN PROVIDED WITH A COPY OF THIS PROSPECTUS.
The delivery of old notes through DTC, and any transmission of an Agents Message through ATOP, is
at the election and risk of the person tendering old notes. We will ask the exchange agent to
instruct DTC to return those old notes, if any, that were tendered through ATOP but were not
accepted by us, to the DTC participant that tendered such old notes on behalf of holders of the old
notes.
Guaranteed Delivery Procedures
If your certificates for old notes are not lost but are not immediately available or you cannot
deliver your certificates and any other required documents to the exchange agent at or prior to
5:00 p.m., New York City time, on the expiration date, or you cannot complete the procedures for
book-entry transfer at or prior to 5:00 p.m., New York City time, on the expiration date, you may
nevertheless effect a tender of your original notes if:
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(i) |
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the tender is made through an eligible institution; |
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(ii) |
|
prior to the expiration date of the exchange offer, the exchange agent receives
by facsimile transmission, mail or hand delivery from such eligible institution a
validly completed and duly executed notice of guaranteed delivery, substantially in the
form provided with this prospectus, or an agents message with respect to guaranteed
delivery which (1) sets forth your name and address and the amount of your original
notes tendered, (2) states that the tender is being made thereby; and (3) guarantees
that within three New York Stock Exchange trading days after the date of execution of
the notice of guaranteed delivery, the certificates for all physically tendered original
notes, in proper form for transfer, or a book-entry confirmation, as the case may be,
and any other documents required by the letter of transmittal will be deposited by the
eligible institution with the exchange agent; and |
|
|
(iii) |
|
the certificates for all physically tendered old notes, in proper form for
transfer, or a book-entry confirmation, as the case may be, and all other documents
required by the letter of transmittal are received by the exchange agent within three
New York Stock Exchange trading days after the date of execution of the notice of
guaranteed delivery. |
Acceptance of Old Notes for Exchange; Delivery of Exchange Notes
We will accept validly tendered old notes when the conditions to the exchange offer have been
satisfied or we have waived them. We will have accepted your validly tendered old notes when we
have given oral or written notice to the exchange agent. The exchange agent will act as agent for
the tendering holders for the purpose of receiving the exchange notes from us. If we do not accept
any old notes tendered for exchange by book-entry transfer because of an invalid tender or other
valid reason, we will credit the old notes to an account maintained with DTC promptly after the
exchange offer terminates or expires.
THE AGENTS MESSAGE MUST BE TRANSMITTED TO THE EXCHANGE AGENT BEFORE 5:00 PM, NEW YORK CITY TIME,
ON THE EXPIRATION DATE.
Withdrawal Rights
You may withdraw your tender of old notes at any time before 5:00 p.m., New York City time, on the
expiration date.
For a withdrawal to be effective, you should contact your bank or broker where your old notes are
held and have them send an ATOP notice of withdrawal so that it is received by the exchange agent
before 5:00 p.m., New York City time, on the expiration date. Such notice of withdrawal must:
|
(1) |
|
specify the name of the person that tendered the old notes to be withdrawn; |
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(2) |
|
identify the old notes to be withdrawn, including the CUSIP number and principal
amount at maturity of the old notes; and |
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(3) |
|
specify the name and number of an account at DTC to which your withdrawn old
notes can be credited. |
21
We will decide all questions as to the validity, form and eligibility (including time of receipt)
of the notices and our reasonable determination will be final and binding on all parties. Any
tendered old notes that you withdraw will not be considered to have been validly tendered. We will
return any old notes that have been tendered but not exchanged, or credit them to the DTC account,
promptly after withdrawal, rejection of tender, or termination of the exchange offer. You may
re-tender properly withdrawn old notes by following one of the procedures described above prior to
the expiration date.
Conditions to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, or any extension of the exchange
offer, we will not be required to accept for exchange, or to issue exchange notes in exchange for,
any old notes and may terminate the exchange offer (whether or not any old notes have been accepted
for exchange) or amend the exchange offer, if any of the following conditions has occurred or
exists or has not been satisfied, or has not been waived by us in our sole reasonable discretion,
prior to the expiration date:
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|
|
there is threatened, instituted or pending any action or proceeding before, or any
injunction, order or decree issued by, any court or governmental agency or other
governmental regulatory or administrative agency or commission: |
|
(1) |
|
seeking to restrain or prohibit the making or completion of the
exchange offer or any other transaction contemplated by the exchange offer, or
assessing or seeking any damages as a result of this transaction; or |
|
|
(2) |
|
resulting in a material delay in our ability to accept for exchange
or exchange some or all of the old notes in the exchange offer; or |
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(3) |
|
any statute, rule, regulation, order or injunction has been sought,
proposed, introduced, enacted, promulgated or deemed applicable to the exchange
offer or any of the transactions contemplated by the exchange offer by any
governmental authority, domestic or foreign; or |
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|
|
any action has been taken, proposed or threatened, by any governmental authority,
domestic or foreign, that, in our sole reasonable judgment, would directly or indirectly
result in any of the consequences referred to in clauses (1), (2) or (3) above or, in
our sole reasonable judgment, would result in the holders of exchange notes having
obligations with respect to resales and transfers of exchange notes which are greater
than those described in the interpretation of the SEC referred to above, or would
otherwise make it inadvisable to proceed with the exchange offer; or |
the following has occurred:
|
(1) |
|
any general suspension of or general limitation on prices for, or
trading in, securities on any national securities exchange or in the
over-the-counter market; or |
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|
(2) |
|
any limitation by a governmental authority which adversely affects
our ability to complete the transactions contemplated by the exchange offer; or |
|
|
(3) |
|
a declaration of a banking moratorium or any suspension of payments
in respect of banks in the United States or any limitation by any governmental
agency or authority which adversely affects the extension of credit; or |
|
|
(4) |
|
a commencement of a war, armed hostilities or other similar
international calamity directly or indirectly involving the United States, or, in
the case of any of the preceding events existing at the time of the commencement
of the exchange offer, a material acceleration or worsening of these calamities;
or |
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|
|
any change, or any development involving a prospective change, has occurred or been
threatened in our business, financial condition, operations or prospects and those of
our subsidiaries taken as a whole that is or may be adverse to us, or we have become
aware of facts that have or may have an adverse impact on the value of the old notes or
the exchange notes, which in our sole reasonable judgment in any case makes it
inadvisable to proceed with the exchange offer and/or with such acceptance for exchange
or with such exchange; or |
|
|
|
|
there shall occur a change in the current interpretation by the Staff of the SEC
which permits the exchange notes issued pursuant to the exchange offer in exchange for
old notes to be offered for resale, resold and otherwise transferred by holders thereof
(other than broker-dealers and any such holder which is our affiliate within the meaning
of Rule 405 promulgated under the Securities Act) without compliance with the
registration and prospectus delivery provisions of the Securities Act, provided that
such exchange notes are acquired in the ordinary course of |
22
|
|
|
such holders business and such holders have no arrangement or understanding with any
person to participate in the distribution of such exchange notes; or |
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any law, statute, rule or regulation shall have been adopted or enacted which, in our
reasonable judgment, would impair our ability to proceed with the exchange offer; or |
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a stop order shall have been issued by the SEC or any state securities authority
suspending the effectiveness of the registration statement, or proceedings shall have
been initiated or, to our knowledge, threatened for that purpose, or any governmental
approval has not been obtained, which approval we shall, in our sole reasonable
discretion, deem necessary for the consummation of the exchange offer as contemplated
hereby; or |
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|
we have received an opinion of counsel experienced in such matters to the effect that
there exists any actual or threatened legal impediment (including a default or
prospective default under an agreement, indenture or other instrument or obligation to
which we are a party or by which we are bound) to the consummation of the transactions
contemplated by the exchange offer. |
If we determine in our sole reasonable discretion that any of the foregoing events or conditions
has occurred or exists or has not been satisfied, we may, subject to applicable law, terminate the
exchange offer (whether or not any old notes have been accepted for exchange) or waive any such
condition or otherwise amend the terms of the exchange offer in any respect. If such waiver or
amendment constitutes a material change to the exchange offer, we will promptly disclose such
waiver or amendment by means of a prospectus supplement that will be distributed to the registered
holders of the old notes and will extend the exchange offer to the extent required by Rule 14e-1
promulgated under the Exchange Act.
These conditions are for our sole benefit and we may assert them regardless of the circumstances
giving rise to any of these conditions, or we may waive them, in whole or in part, in our sole
reasonable discretion, provided that we will not waive any condition with respect to an individual
holder of old notes unless we waive that condition for all such holders. Any reasonable
determination made by us concerning an event, development or circumstance described or referred to
above will be final and binding on all parties.
Exchange Agent
We have appointed Deutsche Bank Trust Company Americas
as the exchange agent for the exchange offer. You should direct requests for assistance and
requests for additional copies of this prospectus or of the blue-colored letter of transmittal to
the exchange agent at Deutsche Bank Trust Company Americas, Telephone: (800) 735-7777, Facsimile: (615) 866-3889.
Fees and Expenses
We have not retained any dealer-manager or similar agent in connection with the exchange offer. We
will not make any payment to brokers, dealers or others for soliciting acceptances of the exchange
offer. However, we will pay the reasonable and customary fees and reasonable out-of-pocket expenses
to the exchange agent in connection therewith. We will also pay the cash expenses to be incurred in
connection with the exchange offer, including accounting, legal, printing, and related fees and
expenses.
Accounting Treatment
The exchange notes will be recorded at the same carrying value as the old notes, as reflected in
our accounting records on the date of exchange. Accordingly, we will recognize no gain or loss for
accounting purposes upon the closing of the exchange offer. The expenses of the exchange offer will
be expensed as incurred.
Consequences of Failure to Exchange
Upon consummation of the exchange offer, certain rights under and related to the registration
rights agreement, including registration rights and the right to receive the contingent increases
in the interest rate, will terminate. The old notes that are not exchanged for exchange notes
pursuant to the exchange offer will remain restricted securities within the meaning of Rule 144
promulgated under the Securities Act. Accordingly, such old notes may be resold only (i) to us or
our subsidiaries, (ii) to a qualified institutional buyer in compliance with Rule 144A promulgated
under the Securities Act, (iii) outside the United States to a non-U.S. person within the meaning
of Regulation S under the Securities Act, (iv) pursuant to the exemption from registration provided
by Rule 144 promulgated under the Securities Act (if available) or (v) pursuant to an effective
registration statement under the Securities Act. The liquidity of the old notes could be adversely
affected by the exchange offer.
23
DESCRIPTION OF THE EXCHANGE NOTES
In this description, references to the Notes are to the old notes and the exchange notes, unless
the context otherwise requires, and references to Mobile Mini or the Company refer only to
Mobile Mini, Inc., a Delaware corporation, and not to any of its Subsidiaries. You can find the
definitions of other terms used in this description under the subheading Certain Definitions.
We issued the old notes, and will issue the exchange notes, pursuant to an indenture dated as of
November 23, 2010 (the Indenture), among Mobile Mini, the Guarantors, Law Debenture Trust Company
of New York, as trustee (the Trustee), and Deutsche Bank Trust Company Americas, as paying agent,
registrar and transfer agent (in each capacity, an agent).
The form and terms of the old notes and exchange notes are identical in all material respects,
except that the exchange notes will be registered under the Securities Act. See The Exchange
Offer Purpose of the Exchange Offer and The Exchange Offer Terms of the Exchange Offer.
The terms of the Notes include those stated in the indenture and those made part of the indenture
by reference to the Trust Indenture Act of 1939, as amended (the TIA).
The following description is a summary of the material provisions of the indenture. It does not
restate the indenture in its entirety. We urge you to read the indenture because it, and not this
description, defines your rights as holders of the notes. Certain defined terms used in this
description but not defined below under Certain Definitions have the meanings assigned to them
in the indenture.
The registered holder of a Note will be treated as its owner of for all purposes. Only registered
holders will have rights under the indenture.
The Notes will be senior unsecured Obligations of the Company, ranking equal in right of payment
with all other senior unsecured Obligations of the Company. All of our existing and future Domestic
Restricted Subsidiaries will guarantee the Notes with unconditional Guarantees that will be
unsecured and senior to any existing and future Subordinated Indebtedness of such Domestic
Restricted Subsidiaries. The Notes and the Guarantees will be effectively subordinated to all
existing and future secured Indebtedness of the Company to the extent of the assets securing such
debt. As of December 31, 2010, on a pro forma basis as if the exchange offer had occurred on such
date, the Company would have had approximately $420.2 million of secured Indebtedness outstanding and
approximately $362.5 million of unused commitments, net of outstanding letters of credit of approximately $8.8 million, under the
Credit Agreement. All of the outstanding Indebtedness under the Credit Agreement is guaranteed by
the Guarantors on a secured basis. The Notes will not be guaranteed by any of our Foreign
Subsidiaries and will be effectively subordinated to any obligations of such Foreign Subsidiaries.
The non-guarantor Subsidiaries represented 16% of our consolidated revenue and 11% of our
consolidated EBITDA for the fiscal year ended December 31, 2010. In addition, these non-guarantor
Subsidiaries represented 13% of our assets and 6% of our liabilities as of December 31, 2010.
The Company will issue the Notes in fully registered form in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. Deutsche Bank Trust Company Americas will initially act as
Paying Agent and Registrar for the Notes. The Notes may be presented for registration or transfer
and exchange at the offices of the Registrar. The Company may change any Paying Agent and
Registrar without notice to holders of the Notes (the Holders). The Company will pay principal
(and premium, if any) on the Notes at the Paying Agents corporate office in New York, New York.
At the Companys option, interest may be paid at the Paying Agents corporate trust office or by
check mailed to the registered address of Holders. Any old notes that remain outstanding after the
completion of the Exchange Offer, together with the exchange notes issued in connection with the
Exchange Offer, will be treated as a single class of securities under the Indenture.
Principal, Maturity and Interest
The Notes are unlimited in aggregate principal amount, of which $200.0 million in aggregate
principal amount will be available for issuance in the exchange offer. The Notes will mature on
December 1, 2020. Additional Notes may be issued from time to time, subject to the limitations set
forth under Certain CovenantsLimitation on Incurrence of Additional Indebtedness. Interest
on the Notes will accrue at the rate of 7.875% per annum and will be payable semiannually in cash
on each June 1 and December 1, commencing on June 1, 2011, to the persons who are registered
Holders at the close of business on the May 15 and November 15 immediately preceding the applicable
interest payment date. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from and including the date of issuance.
The Notes will not be entitled to the benefit of any mandatory sinking fund.
24
Redemption
Optional Redemption. The Company may redeem the Notes at any time at its option, in whole or
in part, upon not less than 45 days notice to the Trustee and Paying Agent and not less than 30 nor
more than 60 days notice to holders of the Notes. To redeem the Notes prior to December 1, 2015,
the Company must pay a redemption price equal to the greater of:
|
(a) |
|
100% of the principal amount of the Notes to be redeemed; and |
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|
(b) |
|
the sum of the present values of (1) the redemption price of the Notes at
December 1, 2015 (as set forth below) and (2) the remaining scheduled payments of
interest from the redemption date to December 1, 2015, but excluding accrued and unpaid
interest, if any, to the redemption date, discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at the
Treasury Rate (determined on the second business day immediately preceding the date of
redemption) plus 50 basis points, |
plus, in either case, accrued and unpaid interest, if any, to the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due on the relevant
interest payment date).
Any notice to holders of Notes of such a redemption will include the appropriate calculation of the
redemption price, but need not include the redemption price itself. The actual redemption price,
calculated as described above, will be set forth in a officers certificate delivered to the
Trustee and the Paying Agent no later than two business days prior to the redemption date (unless
clause (b) of the definition of Comparable Treasury Price is applicable, in which case such
officers certificate shall be delivered on the redemption date).
Beginning on December 1, 2015, the Company may redeem the Notes at its option, in whole or in part,
upon not less than 45 days notice to the Trustee and Paying Agent and not less than 30 nor more
than 60 days notice to holders of the Notes, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month period commencing
on December 1 of the year set forth below:
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Year |
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Percentage |
2015 |
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103.938 |
% |
2016 |
|
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102.625 |
% |
2017 |
|
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101.313 |
% |
2018 and thereafter |
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100.000 |
% |
In addition, the Company must pay accrued and unpaid interest on the Notes redeemed.
Optional Redemption Upon Equity Offerings. At any time, or from time to time, on or prior to
December 1, 2013, the Company may, at its option, use the net cash proceeds of one or more Equity
Offerings (as defined below) to redeem up to 35% of the principal amount of the Notes issued under
the Indenture at a redemption price of 107.875% of the principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of redemption; provided that:
|
(1) |
|
at least 65% of the principal amount of Notes issued under the Indenture remains
outstanding immediately after any such redemption; and |
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|
(2) |
|
the Company makes such redemption not more than 90 days after the consummation of
any such Equity Offering. |
Selection and Notice of Redemption
In the event that the Company chooses to redeem less than all of the Notes, selection of the Notes
for redemption will be made by the Registrar either:
|
(1) |
|
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed; or, |
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|
(2) |
|
on a pro rata basis, by lot or by such method as the Registrar shall deem fair
and appropriate. |
No Notes of a principal amount of $2,000 (and integral multiples of $1,000 in excess thereof) or
less shall be redeemed in part. If a partial redemption is made with the proceeds of an Equity
Offering, the Registrar will select the Notes only on a pro rata basis or on as nearly a pro rata
basis as is practicable (subject to DTC procedures). Notice of redemption will be delivered 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. On and after the redemption date, interest will cease to accrue
on Notes or portions thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price.
25
Guarantees
The Notes will be unconditionally guaranteed by all Domestic Restricted Subsidiaries of the Company
and thereafter by all acquired or created Domestic Restricted Subsidiaries, subject to compliance
with the covenant described under Certain CovenantsAdditional Subsidiary Guarantees. The
Guarantors will jointly and severally guarantee the Companys obligations under the Indenture and
the Notes on a senior unsecured basis. The obligations of each Guarantor under its Guarantee will
be limited as necessary to prevent the Guarantee from constituting a fraudulent conveyance or
fraudulent transfer under applicable law.
Each Guarantor may consolidate with or merge into or sell its assets to the Company or another
Guarantor that is a Restricted Subsidiary of the Company without limitations, or with other Persons
upon the terms and conditions set forth in the Indenture. See Certain CovenantsMerger,
Consolidation and Sale of Assets. In the event a Guarantor ceases to be a Subsidiary of the
Company in a transaction that complies with the covenant described under Certain
CovenantsLimitation on Asset Sales and the other covenants contained in the Indenture, then the
Guarantors Guarantee will be released.
The Notes will not be guaranteed by any of our Foreign Subsidiaries and will be effectively
subordinated to the obligations of such Foreign Subsidiaries. The non-guarantor Subsidiaries
represented 16% of our consolidated revenue and 11% of our consolidated EBITDA for the fiscal
year ended December 31, 2010. In addition, these non-guarantor Subsidiaries represented 13% of our
assets and 6% of our liabilities as of December 31, 2010.
Change of Control
Upon the occurrence of a Change of Control, each Holder will have the right to require that the
Company purchase all or a portion of such Holders Notes pursuant to the offer described below (the
Change of Control Offer), at a purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase.
Within 30 days following the date upon which the Change of Control occurred, the Company must
deliver a notice to each Holder, with a copy to the Trustee and the Paying Agent, which notice
shall govern the terms of the Change of Control Offer. Such notice shall state, among other things,
the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such
notice is mailed, other than as may be required by law (the Change of Control Payment Date).
Holders electing to have a Note purchased pursuant to a Change of Control Offer will be required to
surrender the Note, with the form entitled Option of Holder to Elect Purchase on the reverse of
the Note completed, to the Paying Agent at the address specified in the notice prior to the close
of business on the third business day prior to the Change of Control Payment Date.
The Company will not be required to make a Change of Control Offer upon a Change of Control if a
third party makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
If a Change of Control Offer is made, there can be no assurance that the Company will have
available funds sufficient to pay the Change of Control purchase price for all the Notes that might
be delivered by Holders seeking to accept the Change of Control Offer. In the event the Company is
required to purchase outstanding Notes pursuant to a Change of Control Offer, the Company expects
that it would seek third party financing to the extent it does not have available funds to meet its
purchase obligations. However, there can be no assurance that the Company would be able to obtain
such financing.
A Change of Control will be an event of default under the Credit Agreement, upon which event all
amounts outstanding under the Credit Agreement shall, unless otherwise agreed by the required
lenders thereunder, become due and payable. There can be no assurance that, in the event of a
Change of Control, the Company will be able to obtain the necessary consents from the lenders under
the Credit Agreement to waive such default or consummate a Change of Control Offer. The failure of
the Company to make or consummate the Change of Control Offer or pay the applicable Change of
Control purchase price when due would result in an Event of Default and would give the Trustee and
the Holders of the Notes the rights described under Events of Default.
Neither the Board of Directors of the Company nor the Trustee may waive the covenant relating to a
Holders right to redemption upon a Change of Control. Restrictions in the Indenture described
herein on the ability of the Company and its Restricted Subsidiaries to incur additional
Indebtedness, to grant liens on its property, to make Restricted Payments and to make Asset Sales
may also make more difficult or discourage a takeover of the Company, whether favored or opposed by
the management of the Company. Consummation of any such transaction in certain circumstances may
require redemption or repurchase of the Notes, and there can be no assurance that the Company or
the acquiring party will have sufficient financial resources to effect such redemption or
repurchase. Such restrictions and the restrictions on transactions with Affiliates may, in certain
circumstances, make more difficult or discourage any leveraged buyout of the Company or any of its
Subsidiaries by the management of the Company. While such restrictions cover a wide variety of
arrangements which have traditionally been used to effect highly leveraged transactions, the
Indenture may not afford
26
the Holders protection in all circumstances from the adverse aspects of a highly leveraged
transaction, reorganization, restructuring, merger or similar transaction.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with the Change of Control
provisions of the Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the Change of Control
provisions of the Indenture by virtue thereof.
The definition of Change of Control includes a phrase relating to the direct or indirect sale,
lease, transfer, conveyance or other disposition of all or substantially all of the properties or
assets of the Company and its Restricted Subsidiaries taken as a whole. Although there is a limited
body of case law interpreting the phrase substantially all, there is no precise established
definition of the phrase under applicable law. Accordingly, the ability of a holder of Notes to
require the Company to repurchase its Notes as a result of a sale, lease, transfer, conveyance or
other disposition of less than all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to another Person or group may be uncertain.
Certain Covenants
The Indenture will contain, among others, the following covenants:
Suspension of Covenants. During any period of time that: (i) the Notes have Investment Grade
Ratings from two Rating Agencies and (ii) no Default or Event of Default has occurred and is
continuing under the Indenture (the occurrence of the events described in the foregoing clauses (i)
and (ii) being collectively referred to as a Covenant Suspension Event), the Company and the
Restricted Subsidiaries will not be subject to the following provisions of the Indenture:
|
(1) |
|
Limitation on Incurrence of Additional Indebtedness; |
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|
(2) |
|
Limitation on Restricted Payments; |
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|
(3) |
|
Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries; |
|
|
(4) |
|
Limitation on Asset Sales; |
|
|
(5) |
|
Limitation on Transactions with Affiliates; and |
|
|
(6) |
|
clause (2) of the first paragraph of Merger, Consolidation and Sale of Assets |
(collectively, the Suspended Covenants). Upon the occurrence of a Covenant Suspension Event, the
Guarantees of the Subsidiary Guarantors will also be suspended as of such date (the Suspension
Date). In the event that the Company and the Restricted Subsidiaries are not subject to the
Suspended Covenants for any period of time as a result of the foregoing, and on any subsequent date
(the Reversion Date) one or both of the Rating Agencies withdraws its Investment Grade Rating or
downgrades the rating assigned to the Notes below an Investment Grade Rating, then the Company and
the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants with
respect to future events and the Guarantees of the Subsidiary Guarantors will be reinstated if such
Guarantees are then required by the terms of the Indenture. The period of time between the
Suspension Date and the Reversion Date is referred to in this description as the Suspension
Period. Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of
Default will be deemed to have occurred as a result of a failure to comply with the Suspended
Covenants during the Suspension Period (or upon termination of the Suspension Period or after that
time based solely on events that occurred during the Suspension Period).
On the Reversion Date, all Indebtedness incurred during the Suspension Period will be
classified as having been incurred or issued pursuant to clause (a) of Limitation on Incurrence
of Additional Indebtedness below (to the extent such Indebtedness would be permitted to be
Incurred or issued thereunder as of the Reversion Date and after giving effect to Indebtedness
incurred or issued prior to the Suspension Period and outstanding on the Reversion Date). To the
extent such Indebtedness would not be so permitted to be incurred or issued pursuant to clause (a)
of Limitation on Incurrence of Additional Indebtedness, such Indebtedness will be deemed to
have been outstanding on the Issue Date, so that it is initially classified as permitted under
clause (3) of the definition of Permitted Indebtedness. Calculations made after the Reversion
Date of the amount available to be made as Restricted Payments under Limitation on Restricted
Payments will be made as though the covenant described under Limitation on Restricted Payments
had been in effect since the Issue Date and throughout the Suspension Period. Accordingly,
Restricted Payments made during the Suspension Period will reduce the amount available to be made
as Restricted Payments under the second paragraph of Limitation on Restricted Payments. As
described above, however, no Default or Event of Default will be deemed to have occurred on
27
the Reversion Date as a result of any actions taken by the Company or its Restricted
Subsidiaries during the Suspension Period. The Company should provide notice to the Trustee if a
Suspension Period event has occurred or if there has been a reversion event.
Limitation on Incurrence of Additional Indebtedness.
|
(a) |
|
The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for payment
of (collectively, incur) any Indebtedness (other than Permitted Indebtedness);
provided, however, that if no Default or Event of Default shall have occurred and be
continuing at the time of or as a consequence of the incurrence of any such
Indebtedness, the Company or any of its Restricted Subsidiaries that is or, upon such
incurrence, becomes a Guarantor may incur Indebtedness (including, without limitation,
Acquired Indebtedness) and any Restricted Subsidiary of the Company that is not or will
not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness, in each
case if on the date of the incurrence of such Indebtedness, after giving effect to the
incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company is
greater than 2.0 to 1.0. |
|
|
(b) |
|
The Company will not, and will not permit any Guarantor to directly or
indirectly, incur any Indebtedness which by its terms (or by the terms of any agreement
governing such Indebtedness) is expressly subordinated in right of payment to any other
Indebtedness of the Company or such Guarantor, as the case may be, unless such
Indebtedness is also by its terms (or by the terms of any agreement governing such
Indebtedness) made expressly subordinate to the Notes or the applicable Guarantee, as
the case may be, to the same extent and in the same manner as such Indebtedness is
subordinated to other Indebtedness of the Company or such Guarantor, as the case may be. |
Limitation on Restricted Payments. The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly:
|
(1) |
|
declare or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on or in respect of
shares of the Companys Capital Stock to holders of such Capital Stock; |
|
|
(2) |
|
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock (other than any such Capital Stock or warrants, rights or
options owned by the Company or any Restricted Subsidiary of the Company); |
|
|
(3) |
|
make any principal payment on, purchase, defease, redeem, prepay, decrease or
otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Subordinated Indebtedness; or |
|
|
(4) |
|
make any Investment (other than Permitted Investments) (each of the foregoing
actions set forth in clauses (1), (2), (3) and (4) being referred to as a Restricted
Payment); |
if at the time of such Restricted Payment or immediately after giving effect thereto,
|
(i) |
|
a Default or an Event of Default shall have occurred and be continuing; or |
|
|
(ii) |
|
the Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with the Limitation on Incurrence of
Additional Indebtedness covenant; or |
|
|
(iii) |
|
the aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made subsequent to the Issue Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as determined in good
faith by the Board of Directors of the Company) shall exceed the sum of: |
|
(w) |
|
50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
from April 1, 2003 to the date the Restricted Payment occurs (the Reference
Date) (treating such period as a single accounting period); plus |
|
|
(x) |
|
100% of the aggregate net cash proceeds (or the fair market value
of any marketable securities or other property) received by the Company from any
Person (other than a Subsidiary of the Company) from the issuance and sale
subsequent to July 1, 2003 and on or prior to the Reference Date of (1) Qualified
Capital Stock of the Company, (2) warrants, options or other rights to acquire
Qualified Capital Stock of the Company (but excluding any debt security that is
convertible into, or exchangeable for, Qualified Capital |
28
|
|
|
Stock) or (3) convertible or exchangeable Disqualified Capital Stock or debt
securities that have been converted or exchanged in accordance with their terms
for Qualified Capital Stock; plus |
|
(y) |
|
without duplication of any amounts included in clause (iii) (x)
above, 100% of the aggregate net cash proceeds (or the fair market value of any
marketable securities or other property) from any equity contribution received by
the Company from a holder of the Companys Capital Stock subsequent to July 1,
2003 and on or prior to the Reference Date (excluding, in the case of clauses
(iii) (x) and (y), any net cash proceeds (or the fair market value of any
marketable securities or other property) from an Equity Offering to the extent
used to redeem the Notes in compliance with the provisions set forth under
RedemptionOptional Redemption Upon Equity Offerings); plus |
|
|
(z) |
|
without duplication, the sum of: |
|
(1) |
|
the aggregate amount returned in cash on or with
respect to Investments (other than Permitted Investments) made subsequent
to July 1, 2003 whether through interest payments, principal payments,
dividends or other distributions or payments; |
|
|
(2) |
|
the net cash proceeds received by the Company or any
of its Restricted Subsidiaries from the disposition of all or any portion
of such Investments (other than to a Restricted Subsidiary of the
Company); and |
|
|
(3) |
|
upon redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of such Subsidiary; provided,
however, that the sum of clauses (1), (2) and (3) above shall not exceed
the aggregate amount of all such Investments made subsequent to the Issue
Date. |
As of
September 30, 2010, the amount of Restricted Payments permitted to be made pursuant to
clause (iii) of the immediately preceding paragraph was
approximately $237 million.
Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph do
not prohibit:
|
(1) |
|
the payment of any dividend within 60 days after the date of declaration of such
dividend if the dividend would have been permitted on the date of declaration; |
|
|
(2) |
|
the redemption, repurchase, retirement, defeasance or other acquisition of any
shares of Capital Stock of the Company, either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of net proceeds
of a substantially concurrent sale for cash (other than to a Restricted Subsidiary of
the Company) of shares of Qualified Capital Stock of the Company; |
|
|
(3) |
|
the redemption, repurchase, retirement, defeasance or other acquisition of any
Subordinated Indebtedness either (i) solely in exchange for shares of Qualified Capital
Stock of the Company, or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Restricted Subsidiary of the Company) of (a)
shares of Qualified Capital Stock of the Company or (b) Refinancing Indebtedness; |
|
|
(4) |
|
so long as no Default or Event of Default shall have occurred and be continuing
redemption, repurchase, retirement, defeasance or other acquisition by the Company of
Common Stock of the Company from officers, directors and employees of the Company or any
of its Subsidiaries or their authorized representatives upon the death, disability or
termination of employment of such employees or termination of their seat on the board of
the Company, in an aggregate amount not to exceed the sum of (x) $3.0 million plus (y)
$2.0 million in any calendar year since the Issue Date, with any unused amounts in such
calendar year being carried forward to the next succeeding calendar year; provided that
the aggregate amount of repurchases that may be made pursuant to this clause (4) in any
calendar year shall not exceed $9.0 million in any calendar year; |
|
|
(5) |
|
so long as no Default or Event of Default shall have occurred and be continuing,
Restricted Payments in an aggregate amount not to exceed $25 million; |
|
|
(6) |
|
repurchases of Qualified Capital Stock deemed to occur upon the exercise of stock
options, warrants or other convertible or exchangeable securities; |
|
|
(7) |
|
repurchases of Qualified Capital Stock constituting fractional shares in an
aggregate amount not to exceed $1.0 million; and |
29
|
(8) |
|
the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company
to the holders of its Capital Stock on a pro rata basis. |
If the Company makes a Restricted Payment which, at the time of the making of such Restricted
Payment, in the good faith determination of the Board of Directors of the Company, would be
permitted under the requirements of the Indenture, such Restricted Payment shall be deemed to have
been made in compliance with the Indenture notwithstanding any subsequent adjustment made in good
faith to the Companys financial statements affecting Consolidated Net Income.
In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of the immediately preceding paragraph, amounts expended pursuant to
clauses (1), (2)(ii), 3(ii)(a) and (4) shall be included in such calculation.
Limitation on Asset Sales. The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
|
(1) |
|
the Company or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value of
the assets sold or otherwise disposed of (as determined in good faith by the Companys
Board of Directors); |
|
|
(2) |
|
at least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash, Cash
Equivalents and/or Replacement Assets (as defined below) (or a combination thereof) and
is received at the time of such disposition; provided that |
|
(a) |
|
the amount of any liabilities (as shown on the Companys or such
Restricted Subsidiarys most recent balance sheet) of the Company or any such
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes or any Guarantee of a Guarantor) that are assumed by
the transferee of any such assets; and |
|
|
(b) |
|
the fair market value of any securities or other assets received by
the Company or any such Restricted Subsidiary in exchange for any such assets
that are converted into cash within 180 days after such Asset Sale; |
shall be deemed to be cash for purposes of this provision; and
|
(3) |
|
upon the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within
365 days of receipt thereof either: |
|
(a) |
|
to repay (i) any Obligations under the Credit Agreement and effect
a permanent reduction in the availability under such Credit Agreement and (ii) in
the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor,
Obligations of such Restricted Subsidiary; |
|
|
(b) |
|
to invest or commit to invest in properties and assets that replace
the properties and assets that were the subject of such Asset Sale or in
properties and assets (including Capital Stock) that will be used in the business
of the Company and its Restricted Subsidiaries or in businesses reasonably
related thereto (Replacement Assets); |
|
|
(c) |
|
to acquire or commit to acquire all or substantially all of the
assets of, or a majority of the voting Capital Stock of a Permitted Business;
and/or |
|
|
(d) |
|
a combination of prepayment and investment permitted by the
foregoing clauses (3)(a) through (3)(c); |
provided that in the case of a commitment under clauses (b) and (c) above made prior to the
expiration of such 365-day period, such investment or acquisition shall be deemed to comply with
this covenant if consummated within six months after such commitment.
When the Net Cash Proceeds from Asset Sales not applied or invested as provided in the preceding
paragraph total $25.0 million or more (each, a Net Proceeds Offer Trigger Date), the Company
will, within 30 days, make an offer to purchase (the Net Proceeds Offer) to all Holders and, to
the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of
such Pari Passu Debt, on a date (the Net Proceeds Offer Payment Date) not less than 30 nor more
than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and
holders of any Pari Passu Debt) on a pro rata basis, that amount of Notes (and Pari Passu Debt)
equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the
Notes (and Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to
the date of purchase; provided, however, that if at any time
30
any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as
the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than as contemplated by clause 2(b) above and other than interest received with
respect to any such non-cash consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance
with this covenant.
Notwithstanding the first two paragraphs of this covenant, the Company and its Restricted
Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph to
the extent that:
|
(1) |
|
at least 75% of the consideration for such Asset Sale constitutes Replacement
Assets; and |
|
|
(2) |
|
such Asset Sale is for fair market value; |
provided that any cash or Cash Equivalents received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph
shall constitute Net Cash Proceeds subject to the provisions of the first two paragraphs of this
covenant.
In the event of the transfer of substantially all (but not all) of the property and assets of the
Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under
Merger, Consolidation and Sale of Assets, which transaction does not constitute a Change of
Control, the successor corporation shall be deemed to have sold the properties and assets of the
Company and its Restricted Subsidiaries not so transferred for purposes of this covenant, and shall
comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset
Sale. In addition, the fair market value of such properties and assets of the Company or its
Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of
this covenant.
Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders
within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall
comply with the procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $2,000
(and integral multiples of $1,000 in excess thereof) in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering
Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer
shall remain open for a period of 20 business days or such longer period as may be required by law.
If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may
use those Net Cash Proceeds for any purpose not otherwise prohibited by the Indenture. Upon
completion of each Net Proceeds Offer, the amount of Net Cash Proceeds will be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale provisions of the
Indenture, the Company shall comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under the Asset Sale provisions of the Indenture
by virtue thereof.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The
Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company to:
|
(1) |
|
pay dividends or make any other distributions on or in respect of its Capital
Stock; |
|
|
(2) |
|
make loans or advances to the Company or any other Restricted Subsidiary or to
pay any Indebtedness or other obligation owed to the Company or any other Restricted
Subsidiary of the Company; or |
|
|
(3) |
|
transfer any of its property or assets to the Company or any other Restricted
Subsidiary of the Company, except in each case for such encumbrances or restrictions
existing under or by reason of: |
|
(a) |
|
applicable law, rule, regulation or order; |
|
|
(b) |
|
the Indenture, the Notes and the Guarantees; |
|
|
(c) |
|
the Credit Agreement; |
|
|
(d) |
|
customary non-assignment provisions of any contract or any lease
governing a leasehold interest of any Restricted Subsidiary of the Company; |
31
|
(e) |
|
any instrument governing Acquired Indebtedness, which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person or the properties or assets of the Person so
acquired; |
|
|
(f) |
|
agreements existing on the Issue Date to the extent and in the
manner such agreements are in effect on the Issue Date; |
|
|
(g) |
|
any encumbrance or restriction on the transfer of assets subject to
any Lien permitted under the Indenture imposed by the holder of such Lien; |
|
|
(h) |
|
restrictions imposed by any agreement to sell assets or Capital
Stock permitted under the Indenture to any Person pending the closing of such
sale; |
|
|
(i) |
|
Purchase Money Indebtedness for property acquired in the ordinary
course of business that only impose restrictions on the property so acquired; |
|
|
(j) |
|
any agreement pursuant to which Indebtedness was issued if (A) the
encumbrance or restriction applies only in the event of a payment default or a
default with respect to a financial covenant contained in such Indebtedness, (B)
the encumbrance or restriction is not materially more disadvantageous to the
holders of the Notes than is customary in comparable financings (as determined by
the Company) and (C) the Company determines that any such encumbrance or
restriction will not materially affect the Companys ability to make principal or
interest payments on the Notes; |
|
|
(k) |
|
Indebtedness permitted to be incurred subsequent to the date of the
Indenture pursuant to the provisions of the covenant described under
Limitation on Incurrence of Additional Indebtedness; provided that such
encumbrances or restrictions are no less favorable to the Company, taken as a
whole, in any material respect than the encumbrances or restrictions contained in
the Credit Agreement as in effect on the Issue Date; |
|
|
(1) |
|
any Qualified Securitization Transaction; provided that such
encumbrances and restrictions are customarily required by the institutional
sponsor or arranger at the time of entering into such Qualified Securitization
Transaction in similar types of documents relating to the purchase of similar
Receivables in connection with the financing therewith; |
|
|
(m) |
|
customary provisions in joint venture agreements and other similar
agreements (in each case relating solely to the respective joint venture or
similar entity or the equity interests therein) entered into in the ordinary
course of business; and |
|
|
(n) |
|
an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in
clauses (b) and (d) through (k) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in any such Indebtedness
are no less favorable to the Company in any material respect as determined by the
Board of Directors of the Company in their reasonable and good faith judgment
than the provisions relating to such encumbrance or restriction contained in
agreements referred to in such clauses (b) and (d) through (k). |
Limitation on Preferred Stock of Restricted Subsidiaries. The Company will not permit any of its
Restricted Subsidiaries that are not Guarantors to issue any Preferred Stock (other than to the
Company or to a Wholly Owned Restricted Subsidiary of the Company) or permit any Person (other than
the Company or a Wholly Owned Restricted Subsidiary of the Company) to own any Preferred Stock of
any Restricted Subsidiary that is not a Guarantor.
Limitation on Liens. The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any
Liens of any kind against or upon any property or assets of the Company or any of its Restricted
Subsidiaries, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds
therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless:
|
(1) |
|
in the case of Liens securing Subordinated Indebtedness, the Notes or the
Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Liens; and |
|
|
(2) |
|
in all other cases, the Notes or the Guarantee of such Guarantor, as the case may
be, are equally and ratably secured, except for: |
32
|
(a) |
|
Liens existing as of the Issue Date to the extent and in the manner such
Liens are in effect on the Issue Date; |
|
|
(b) |
|
Liens securing Indebtedness and other Obligations under Credit
Facilities in an aggregate amount not to exceed the amount permitted to be
incurred pursuant to clause (2) of the definition of Permitted Indebtedness; |
|
|
(c) |
|
Liens securing the Notes and the Guarantees; |
|
|
(d) |
|
Liens of the Company or a Wholly Owned Restricted Subsidiary of the
Company on assets of any Restricted Subsidiary of the Company; |
|
|
(e) |
|
Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness which has been secured by a Lien permitted under the
Indenture and which has been incurred in accordance with the provisions of the
Indenture; provided, however, that such Liens: (i) are no less favorable to the
Holders in any material respect and are not more favorable to the lienholders in
any material respect with respect to such Liens than the Liens in respect of the
Indebtedness being Refinanced; and (ii) do not extend to or cover any property or
assets of the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced; |
|
|
(f) |
|
Liens securing Indebtedness (including Liens securing any
Obligations in respect of thereof) consisting of Indebtedness incurred in
compliance with the covenant described under Limitation on Incurrence of
Additional Indebtedness, provided that after giving effect to such incurrence of
Indebtedness (or on the date of the initial borrowing of such Indebtedness after
giving pro forma effect to the incurrence of the entire committed amount of such
Indebtedness), the Consolidated Secured Leverage Ratio shall not exceed 3.0 to
1.0; and |
|
|
(g) |
|
Permitted Liens. |
Merger, Consolidation and Sale of Assets. The Company will not, in a single transaction or series
of related transactions, consolidate or merge with or into any Person, or sell, assign, transfer,
lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary of the Company
to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the
Companys assets (determined on a consolidated basis for the Company and the Companys Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any Person unless:
|
(a) |
|
the Company shall be the surviving or continuing corporation; or |
|
|
(b) |
|
the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by sale,
assignment, transfer, lease, conveyance or other disposition the properties and
assets of the Company and of the Companys Restricted Subsidiaries substantially
as an entirety (the Surviving Entity): |
|
(x) |
|
shall be a corporation organized and validly existing
under the laws of the United States or any State thereof or the District
of Columbia; and |
|
|
(y) |
|
shall expressly assume, by supplemental indenture (in
form and substance reasonably satisfactory to the Trustee), executed and
delivered to the Trustee, the due and punctual payment of the principal
of, and premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, the Indenture and the
Registration Rights Agreement on the part of the Company to be performed
or observed; |
|
(2) |
|
immediately after giving effect to such transaction and the assumption
contemplated by clause (1)(b) (y) above(including giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction), either (x) the Company or such Surviving Entity, as the
case may be, shall be able to incur at least $1.00 of additional Indebtedness(other than
Permitted Indebtedness) pursuant to the covenant described under Certain
CovenantsLimitation on Incurrence of Additional Indebtedness or (y) the Consolidated
Fixed Charge Coverage Ratio of the Company would be no less than such ratio immediately
prior to such transaction; |
33
|
(3) |
|
immediately before and immediately after giving effect to such transaction and
the assumption contemplated by clause (1)(b)(y) above (including, without limitation,
giving effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to
be incurred and any Lien granted in connection with or in respect of the transaction),
no Default or Event of Default shall have occurred or be continuing; and |
|
|
(4) |
|
the Company or the Surviving Entity shall have delivered to the Trustee an
officers certificate and an opinion of counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of the Indenture and that
all conditions precedent in the Indenture relating to such transaction have been
satisfied. |
For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single
transaction or series of transactions) of all or substantially all of the properties or assets of
one or more Restricted Subsidiaries of the Company the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
Notwithstanding the foregoing clauses (1), (2) and (3), the Company may merge with an Affiliate
that is a Person that has no material assets or liabilities and which was organized solely for the
purpose of reorganizing the Company in another jurisdiction.
The Indenture will provide that upon any consolidation, combination or merger or any transfer of
all or substantially all of the assets of the Company in accordance with the foregoing in which the
Company is not the continuing corporation, the successor Person formed by such consolidation or
into which the Company is merged or to which such conveyance, lease or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under
the Indenture, the Notes and the Registration Rights Agreement with the same effect as if such
surviving entity had been named as such.
Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with the
terms of the Guarantee and the Indenture in connection with any transaction complying with the
provisions of Limitation on Asset Sales) will not, and the Company will not cause or permit any
Guarantor to, consolidate with or merge with or into any Person other than the Company or any other
Guarantor unless:
|
(1) |
|
the entity formed by or surviving any such consolidation or merger (if other than
the Guarantor) or to which such sale, lease, conveyance or other disposition shall have
been made is a corporation or a partnership or a limited liability company, in each
case, organized and existing under the laws of the United States or any State thereof or
the District of Columbia; |
|
|
(2) |
|
such entity (if other than the Guarantor) assumes by supplemental indenture all
of the obligations of the Guarantor under its Guarantee, the Indenture and the
Registration Rights Agreement; |
|
|
(3) |
|
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and |
|
|
(4) |
|
immediately after giving effect to such transaction and the use of any net
proceeds therefrom on a pro forma basis, the Company could satisfy the provisions of
clause (2) of the first paragraph of this covenant. |
Any merger or consolidation of a Guarantor with and into the Company (with the Company being the
surviving entity) or another Guarantor that is a Restricted Subsidiary of the Company need only
comply with clause (4) of the first paragraph of this covenant. The phrase all or substantially
all of the assets of the Company or a Guarantor will likely be interpreted under applicable state
law and will be dependent upon particular facts and circumstances. As a result, there may be a
degree of uncertainty in ascertaining whether a sale or transfer of all or substantially all of
the assets of the Company or a Guarantor has occurred.
Limitations on Transactions with Affiliates. The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction
or series of related transactions (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with, or for the benefit of, any of its
Affiliates (each, an Affiliate Transaction), other than (x) Affiliate Transactions permitted
under the third paragraph of this covenant and (y) Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable transaction at such
time on an arms-length basis from a Person that is not an Affiliate of the Company or such
Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or
part of a common plan) involving aggregate payments or other property with a fair market value in
excess of $10.0 million shall be approved by the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution
stating that such Board of Directors has determined that such transaction complies with the
foregoing provisions. If the Company or any
34
Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related
Affiliate Transactions related to a common plan) that involves an aggregate fair market value of
more than $25.0 million, the Company or such Restricted Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the relevant Restricted Subsidiary,
as the case may be, from a financial point of view, from an Independent Financial Advisor and file
the same with the Trustee.
The restrictions set forth in the first paragraph of this covenant shall not apply to:
|
(1) |
|
reasonable fees and compensation (including the payment of reasonable and
customary benefits (including retirement, health, option, deferred compensation and
other benefit plans) to officers and employees of the Company) paid to and indemnity
provided on behalf of, officers, directors, employees or consultants of the Company or
any Restricted Subsidiary of the Company as determined in good faith by the Companys
Board of Directors or senior management; |
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|
(2) |
|
transactions exclusively between or among the Company and any of its Restricted
Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by the Indenture; |
|
|
(3) |
|
any agreement as in effect as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement agreement is
not more disadvantageous to the Holders in any material respect than the original
agreement as in effect on the Issue Date; |
|
|
(4) |
|
Restricted Payments or Permitted Investments permitted by the Indenture; |
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|
(5) |
|
any sale, conveyance or other transfer of Receivables and other related assets
customarily transferred in a Qualified Securitization Transaction; and |
|
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(6) |
|
the issuance of Qualified Capital Stock of the Company otherwise permitted
hereunder. |
Additional Subsidiary Guarantees. If, after the Issue Date, (a) any Restricted Subsidiary
(including any newly formed, newly acquired or newly Redesignated Restricted Subsidiary) guarantees
any Indebtedness of the Company or (b) the Company otherwise elects to have any Restricted
Subsidiary become a Guarantor, then, in each such case, the Company shall cause such Restricted
Subsidiary to:
|
(1) |
|
execute and deliver to the Trustee a supplemental indenture in form and substance
satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee all of the Companys obligations under the Notes and the
Indenture; and |
|
|
(2) |
|
deliver to the Trustee an opinion of counsel that such supplemental indenture has
been duly authorized, executed and delivered by such Restricted Subsidiary and
constitutes a valid, binding and enforecable obligation of such Restricted Subsidiary in
accordance with its terms. |
Conduct of Business. The Company and its Restricted Subsidiaries will not engage in any businesses
other than a Permitted Business, except to the extent as would not be material to the Company and
its Restricted Subsidiaries taken as a whole.
Payments for Consent. The Company will not, and will not permit any of its Restricted Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any
Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of the Indenture or the Notes unless such consideration is offered to be paid and is
paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
Reports to Holders. The Indenture will provide that, whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the Company will furnish the
Trustee, for delivery to the Holders of the Notes upon their written request therefor:
|
(1) |
|
all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a Managements Discussion and Analysis of
Financial Condition and Results of Operations that describes the financial condition
and results of operations of the Company and its consolidated Subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in the footnotes
thereto and in Managements Discussion and Analysis of Financial Condition and Results
of Operations, the financial condition and results of operations of the Company and its
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35
|
|
|
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company, if any) and, with respect
to the annual information only, a report thereon by the Companys certified
independent accountants; and |
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(2) |
|
all current reports that would be required to be filed with the Commission on
Form 8-K if the Company were required to file such reports, in each case within the time
periods specified in the Commissions rules and regulations. |
In addition, following the consummation of the exchange offer contemplated by the Registration
Rights Agreement, whether or not required by the rules and regulations of the Commission, the
Company will file a copy of all such information and reports with the Commission for public
availability within the time periods specified in the Commissions rules and regulations (unless
the Commission will not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. In addition, the Company has agreed that, for so
long as any Notes remain outstanding, it will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.
Events of Default
The following events are defined in the Indenture as Events of Default:
|
(1) |
|
the failure to pay interest on any Notes when the same becomes due and payable
and the default continues for a period of 30 days; |
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|
(2) |
|
the failure to pay the principal on any Notes, when such principal becomes due
and payable, at maturity, upon redemption or otherwise(including the failure to make a
payment to purchase Notes tendered pursuant to a Change of Control Offer or a Net
Proceeds Offer); |
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|
(3) |
|
a default in the observance or performance of any other covenant or agreement
contained in the Indenture which default continues for a period of 60 days after the
Company receives written notice specifying the default (and demanding that such default
be remedied) from the Trustee or the Holders of at least 25% of the outstanding
principal amount of the Notes (except in the case of a default with respect to the
Merger, Consolidation and Sale of Assets covenant, which will constitute an Event of
Default with such notice requirement but without such passage of time requirement); |
|
|
(4) |
|
the failure to pay at final maturity (giving effect to any applicable grace
periods and any extensions thereof) the stated principal amount of any Indebtedness of
the Company or any Restricted Subsidiary of the Company, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is not rescinded,
annulled or otherwise cured within 20 days of receipt by the Company or such Restricted
Subsidiary of notice of any such acceleration) if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness in
default for failure to pay principal at final stated maturity or which has been
accelerated (in each case with respect to which the 20-day period described above has
elapsed), aggregates $25.0 million or more at any time; |
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|
(5) |
|
one or more judgments in an aggregate amount in excess of $25.0 million shall
have been rendered against the Company or any of its Restricted Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable; |
|
|
(6) |
|
certain events of bankruptcy affecting the Company or any of its Significant
Subsidiaries; or |
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(7) |
|
any Guarantee of a Significant Subsidiary ceases to be in full force and effect
or is declared to be null and void and unenforceable or is found to be invalid or any
Guarantor that is a Significant Subsidiary denies its liability under its Guarantee
(other than by reason of release of a Guarantor in accordance with the terms of the
Indenture). |
If an Event of Default (other than an Event of Default specified in clause (6) above with respect
to the Company) shall occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Notes may declare the principal of and accrued interest on all the
Notes to be due and payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that it is a notice of acceleration (the Acceleration Notice),
and the same shall become immediately due and payable.
36
If an Event of Default specified in clause (6) above with respect to the Company occurs and is
continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on
all of the outstanding Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
The Indenture will provide that, at any time after a declaration of acceleration with respect to
the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of
the Notes may rescind and cancel such declaration and its consequences:
|
(1) |
|
if the rescission would not conflict with any judgment or decree; |
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(2) |
|
if all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration; |
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(3) |
|
to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise than by
such declaration of acceleration, has been paid; |
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(4) |
|
if the Company has paid the Trustee and each Agent its reasonable compensation
and reimbursed the Trustee and each Agent for its expenses, disbursements and advances;
and |
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(5) |
|
in the event of the cure or waiver of an Event of Default of the type described
in clause (6) of the description above of Events of Default, the Trustee shall have
received an officers certificate and an opinion of counsel that such Event of Default
has been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto. |
The Holders of a majority in principal amount of the Notes may waive any existing Default or Event
of Default under the Indenture, and its consequences, except a default in the payment of the
principal of or interest on any Notes.
Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture
and under the TIA. Subject to the provisions of the Indenture relating to the duties of the
Trustee, the Trustee is under no obligation to exercise any of its rights or powers under the
Indenture at the request, order or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity and/or security. Subject to all provisions of the
Indenture and applicable law, the Holders of a majority in aggregate principal amount of the then
outstanding Notes have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee.
Under the Indenture, the Company is required to provide an officers certificate to the Trustee
promptly upon any such officer obtaining knowledge of any Default or Event of Default (provided
that such officers shall provide such certification at least annually whether or not they know of
any Default or Event of Default) that has occurred and, if applicable, describe such Default or
Event of Default and the status thereof.
Legal Defeasance and Covenant Defeasance
The Company may, at its option and at any time, elect to have its obligations and the obligations
of the Guarantors discharged with respect to the outstanding Notes (Legal Defeasance). Such Legal
Defeasance means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Notes, except for:
|
(1) |
|
the rights of Holders to receive payments in respect of the principal of,
premium, if any, and interest on the Notes when such payments are due; |
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|
(2) |
|
the Companys obligations with respect to the Notes concerning issuing temporary
Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payments; |
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(3) |
|
the rights, powers, trust, duties and immunities of the Trustee and the Companys
obligations in connection therewith; and |
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(4) |
|
the Legal Defeasance provisions of the Indenture. |
In addition, the Company may, at its option and at any time, elect to have the obligations of the
Company released with respect to certain covenants that are described in the Indenture (Covenant
Defeasance) 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 Covenant Defeasance occurs,
certain events (not including non-payment, bankruptcy, receivership, reorganization and insolvency
events) described under Events of Default will no longer constitute an Event of Default with
respect to the Notes.
37
In order to exercise either Legal Defeasance or Covenant Defeasance:
|
(1) |
|
the Company must irrevocably deposit with the Paying Agent, in trust, for the
benefit of the Holders cash in U.S. dollars, non-callable U.S. government obligations,
or a combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest on the Notes on the stated date for payment thereof or on
the applicable redemption date, as the case may be; |
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(2) |
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in the case of Legal Defeasance, the Company shall have delivered to the Trustee
an opinion of counsel in the United States reasonably acceptable to the Trustee
confirming that: |
|
(a) |
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the Company has received from, or there has been published by, the
Internal Revenue Service a ruling; or |
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(b) |
|
since the date of the Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred; |
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(3) |
|
in the case of Covenant Defeasance, the Company shall have delivered to the
Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred; |
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(4) |
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no Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or an Event of Default resulting from the
borrowing of funds to be applied to such deposit and the grant of any Lien securing such
borrowings); |
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(5) |
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such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under the Indenture (other than a Default or an
Event of Default resulting from the borrowing of funds to be applied to such deposit and
the grant of any Lien securing such borrowings) or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound; |
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(6) |
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the Company shall have delivered to the Trustee an officers certificate stating
that the deposit was not made by the Company with the intent of preferring the Holders
over any other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others; |
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(7) |
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the Company shall have delivered to the Trustee an officers certificate and an
opinion of counsel, each stating that all conditions precedent provided for or relating
to the Legal Defeasance or the Covenant Defeasance have been complied with; |
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(8) |
|
the Company shall have delivered to the Trustee an opinion of counsel to the
effect that assuming no intervening bankruptcy of the Company between the date of
deposit and the 91st day following the date of deposit and that no Holder is an insider
of the Company, after the 91st day following the date of deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors rights generally; and |
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(9) |
|
certain other customary conditions precedent are satisfied. |
Notwithstanding the foregoing, the opinion of counsel required by clause (2) above with respect to
a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the Trustee for
cancellation (1) have become due and payable or (2) will become due and payable on the maturity
date within one year, or are to be called for redemption within one year, under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Satisfaction and Discharge
The Indenture will be discharged and will cease to be of further effect (except as to surviving
rights or registration of transfer or exchange of the Notes, as expressly provided for in the
Indenture) as to all outstanding Notes when:
38
|
(a) |
|
all the Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust) have been delivered to the Trustee or the Registrar for cancellation; or |
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(b) |
|
all Notes not theretofore delivered to the Trustee or the Registrar
for cancellation (1) have become due and payable or (2) will become due and
payable within one year, or may be called for redemption within one year, under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, and the Company
has irrevocably deposited or caused to be deposited with the Paying Agent funds
in an amount sufficient to pay and discharge the entire Indebtedness on the Notes
not theretofore delivered to the Trustee or the Registrar for cancellation, for
principal of, premium, if any, and interest on the Notes to the date of deposit,
together with irrevocable instructions from the Company directing the Paying
Agent to apply such funds to the payment thereof at maturity or redemption, as
the case may be; |
|
(2) |
|
the Company has paid all other sums payable under the Indenture by the Company;
and |
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(3) |
|
the Company has delivered to the Trustee (with a copy to the Registrar) an
officers certificate and an opinion of counsel stating that all conditions precedent
under the Indenture relating to the satisfaction and discharge of the Indenture have
been complied with. |
Modification of the Indenture
From time to time, the Company, the Guarantors and the Trustee, without the consent of the Holders,
may amend the Indenture for certain specified purposes, including curing ambiguities, defects or
inconsistencies, so long as such change does not adversely affect the rights of any of the Holders
in any material respect. The Trustee will be entitled to rely on an opinion of counsel and an
officers certificate to such effect. Other modifications and amendments of the Indenture may be
made with the consent of the Holders of a majority in principal amount of the then outstanding
Notes issued under the Indenture, except that, without the consent of each Holder affected thereby,
no amendment may:
|
(1) |
|
reduce the amount of Notes whose Holders must consent to an amendment; |
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|
(2) |
|
reduce the rate of or change or have the effect of changing the time for payment
of interest, including defaulted interest, on any Notes; |
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(3) |
|
reduce the principal of or change or have the effect of changing the fixed
maturity of any Notes, or change the date on which any Notes may be subject to
redemption or reduce the redemption price therefor; |
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(4) |
|
make any Notes payable in money other than that stated in the Notes; |
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(5) |
|
make any change in provisions of the Indenture protecting the right of each
Holder to receive payment of principal of and interest on such Note on or after the due
date thereof or to bring suit to enforce such payment, or permitting Holders of a
majority in principal amount of Notes to waive Defaults or Events of Default; |
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|
(6) |
|
after the Companys obligation to purchase Notes arises thereunder, amend, change
or modify in any material respect the obligation of the Company to make and consummate a
Change of Control Offer in the event of a Change of Control or make and consummate a Net
Proceeds Offer with respect to any Asset Sale that has been consummated or, after such
Change of Control has occurred or such Asset Sale has been consummated, modify any of
the provisions or definitions with respect thereto; or |
|
|
(7) |
|
release any Guarantor that is a Significant Subsidiary from any of its
obligations under its Guarantee or the Indenture otherwise than in accordance with the
terms of the Indenture. |
Governing Law
The Indenture will provide that it, the Notes and the Guarantees, if any, will be governed by, and
construed in accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of the law of another
jurisdiction would be required thereby.
39
The Trustee
The Indenture will provide that, except during the continuance of an Event of Default, the Trustee
will perform only such duties as are specifically set forth in the Indenture. During the existence
of an Event of Default, the Trustee will exercise such rights and powers vested in it by the
Indenture, and use the same degree of care and skill in its exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
The Indenture and the provisions of the TIA contain certain limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payments of claims in certain cases
or to realize on certain property received in respect of any such claim as security or otherwise.
Subject to the TIA, the Trustee will be permitted to engage in other transactions; provided that if
the Trustee acquires any conflicting interest as described in the TIA, it must eliminate such
conflict or resign.
The Trustee is not responsible for ascertaining if any Additional Interest is payable under the
Registration Rights Agreement. If any Additional Interest is required to be paid, the Company will
provide the Trustee with an officers certificate, on or before the relevant Interest Payment Date,
setting forth the amount of Additional Interest payable on such Interest Payment Date.
Certain Definitions
Set forth below is a summary of certain of the defined terms used in the Indenture. Reference is
made to the Indenture for the full definition of all such terms, as well as any other terms used
herein for which no definition is provided.
Acquired Indebtedness means Indebtedness of a Person or any of its Subsidiaries existing at the
time such Person becomes a Restricted Subsidiary of the Company or at the time it merges or
consolidates with or into the Company or any of its Subsidiaries or assumed in connection with the
acquisition of assets from such Person and in each case not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the
Company or such acquisition, merger or consolidation.
Affiliate means, with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by, or is under common
control with, such specified Person. The term control means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
controlling and controlled have meanings correlative of the foregoing.
Asset Acquisition means (1) an Investment by the Company or any Restricted Subsidiary of the
Company in any other Person pursuant to which such Person shall become a Restricted Subsidiary of
the Company or any Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (2) the acquisition by the Company or any
Restricted Subsidiary of the Company of the assets of any Person (other than a Restricted
Subsidiary of the Company) which constitute all or substantially all of the assets of such Person
or comprises any division or line of business of such Person or any other properties or assets of
such Person other than in the ordinary course of business.
Asset Sale means any direct or indirect sale, issuance, conveyance, transfer, lease (other than
operating leases entered into in the ordinary course of business), assignment or other transfer for
value by the Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of the Company of: (1)
any Capital Stock of any Restricted Subsidiary of the Company; or (2) any other property or assets
of the Company or any Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that asset sales or other dispositions shall not include: (a) a
transaction or series of related transactions for which the Company or its Restricted Subsidiaries
receive aggregate consideration (exclusive of any indemnities) of less than $10.0 million; (b) the
sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of
the Company as permitted under Merger, Consolidation and Sale of Assets; (c) any Restricted
Payment permitted by the Limitation on Restricted Payments covenants or that constitutes a
Permitted Investment; (d) the sale or discount, in each case without recourse, of accounts
receivable arising in the ordinary course of business, but only in connection with the compromise
or collection thereof; (e) the sale of or other disposition of cash or Cash Equivalents; (f) any
sale or disposition deemed to occur in connection with creating or granting any Liens pursuant to
the covenant described under Certain Covenants Limitations on Liens; (g) the lease,
assignment or sublease of any real or personal property in the ordinary course of business; (h) any
sale of Receivables pursuant to a Qualified Securitization Transaction; (i) sales of Unrestricted
Subsidiaries; and (j) disposals, trade-ins or replacements of obsolete or worn-out equipment.
Board of Directors means, as to any Person, the board of directors (or similar governing body) of
such Person or any duly authorized committee thereof.
40
Board Resolution means, with respect to any Person, a copy of a resolution certified by the
Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
Borrowing Base means, as of any date, an amount equal to the sum of:
|
(1) |
|
85% of the aggregate book value of all accounts receivable of such Person and its
Restricted Subsidiaries (other than any Special Purpose Vehicle); and |
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|
(2) |
|
95% of the aggregate cost basis of the portable storage unit lease fleet (or any
successor line item or items reflecting such portable storage unit lease fleet) as
indicated on its consolidated balance sheet as owned by such Person and its Restricted
Subsidiaries, |
all calculated on a consolidated basis and in accordance with GAAP, and, in each case as reflected
on the most recent balance sheet for the most recent fiscal quarter (or, if available, the most
recent month) preceding such date and after giving effect on a pro forma basis to any asset sales
or other dispositions or Asset Acquisitions in the manner described under Consolidated Fixed
Charge Coverage Ratio below.
Capital Stock means:
|
(1) |
|
with respect to any Person that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not voting) of
corporate stock, including each class of Common Stock and Preferred Stock of such
Person, and all options, warrants or other rights to purchase or acquire any of the
foregoing; and |
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(2) |
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with respect to any Person that is not a corporation, any, and all partnership,
membership or other equity interests of such Person, and all options, warrants or other
rights to purchase or acquire any of the foregoing. |
Capitalized Lease Obligation means, as to any Person, the obligations of such Person under a
lease that are required to be classified and accounted for as capital lease obligations under GAAP
and, for purposes of this definition, the amount of such obligations at any date shall be the
capitalized amount of such obligations at such date, determined in accordance with GAAP.
Cash Equivalents means:
|
(1) |
|
marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within one year from the date of
acquisition thereof; |
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|
(2) |
|
marketable direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or
Moodys; |
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(3) |
|
commercial paper maturing no more than one year from the date of creation thereof
and, at the time of acquisition, having a rating of at least A-1 from S&P or at least
P-1 from Moodys; |
|
|
(4) |
|
certificates of deposit or bankers acceptances maturing within one year from the
date of acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S. branch of
a foreign bank having at the date of acquisition thereof combined capital and surplus of
not less than $250.0 million; |
|
|
(5) |
|
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (1) above entered into with any bank meeting
the qualifications specified in clause (4) above; and |
|
|
(6) |
|
investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (1) through (5) above. |
Change of Control means the occurrence of one or more of the following events:
|
(1) |
|
any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Company to any
Person or group of related Persons for purposes of
|
41
|
|
|
Section 13(d) of the Exchange Act (a Group), together with any Affiliates thereof (whether
or not otherwise in compliance with the provisions of the Indenture); |
|
|
(2) |
|
the approval by the holders of Capital Stock of the Company of any plan or
proposal for the liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of the Indenture); |
|
|
(3) |
|
any Person or Group (other than any entity formed for the purpose of owning
Capital Stock of the Company) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of the
Company; or |
|
|
(4) |
|
the replacement of a majority of the Board of Directors of the Company over a
two-year period from the directors who constituted the Board of Directors of the Company
at the beginning of such period, and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors of the Company then still in
office who either were members of such Board of Directors at the beginning of such
period or whose election as a member of such Board of Directors was previously so
approved. |
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 Persons 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.
Comparable Treasury Issue means the United States treasury security selected by an Independent
Investment Bank as having a maturity comparable to the remaining term of the Notes that would be
utilized, at the time of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.
Independent Investment Bank means one of the Reference Treasury Dealers appointed by the Company.
Comparable Treasury Price means, with respect to any redemption date:
|
(1) |
|
the average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third business
day preceding such redemption date, as set forth in the most recently published
statistical release designated H.15(519) (or any successor release) published by the
Board of Governors of the Federal Reserve System and which establishes yields on
actively traded United States treasury securities adjusted to constant maturity under
the caption Treasury Constant Maturities, or |
|
|
(2) |
|
if such release (or any successor release) is not published or does not contain
such prices on such business day, the average of the Reference Treasury Dealer
Quotations for such redemption date. |
Consolidated Assets means, as of the date of determination, the total assets (less goodwill and
intangible assets) of the Company and its Restricted Subsidiaries as shown on the balance sheet of
the Company and its Subsidiaries for the most recently ended fiscal quarter for which financial
statements are available, determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA means, with respect to any Person, for any period, the sum (without
duplication) of:
|
(1) |
|
Consolidated Net Income; and |
|
|
(2) |
|
to the extent Consolidated Net Income has been reduced thereby: |
|
(a) |
|
all income taxes of such Person and its Restricted Subsidiaries
paid or accrued in accordance with GAAP for such period (other than income taxes
attributable to extraordinary, unusual or nonrecurring gains or losses or taxes
attributable to sales or dispositions outside the ordinary course of business); |
|
(b) |
|
Consolidated Interest Expense; and |
|
|
(c) |
|
Consolidated Non-cash Charges less any non-cash items increasing
Consolidated Net Income for such period, |
all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in
accordance with GAAP.
Consolidated Fixed Charge Coverage Ratio means, with respect to any Person, the ratio of
Consolidated EBITDA of such Person during the four full fiscal quarters (the Four Quarter Period)
ending prior to the date of the transaction giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio for which financial statements are available (the Transaction Date)
to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and
without limitation of the foregoing, for
42
purposes of this definition, Consolidated EBITDA and Consolidated Fixed Charges shall be
calculated after giving effect on a pro forma basis for the period of such calculation to:
|
(1) |
|
the incurrence or repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other Indebtedness (and
the application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes pursuant to
working capital facilities, occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the Transaction
Date, as if such incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period; and |
|
|
(2) |
|
any asset sales or other dispositions or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions and other
operating improvements or synergies (x) calculated on a basis consistent with Regulation
S-X under the Exchange Act or (y) as determined in good faith by a responsible financial
or accounting officer of the Company for which steps have been taken or are reasonably
expected to be taken within six (6) months of such transaction and are supportable and
quantifiable and as set forth on an officers certificate) attributable to the assets
which are the subject of the Asset Acquisition or asset sale or other disposition during
the Four Quarter Period) occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the Transaction
Date, as if such asset sale or other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness) occurred on the
first day of the Four Quarter Period. If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the
preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness
as if such Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness. |
Furthermore, in calculating Consolidated Fixed Charges for purposes of determining the
denominator (but not the numerator) of this Consolidated Fixed Charge Coverage Ratio:
|
(1) |
|
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be deemed
to have accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and |
|
|
(2) |
|
notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to
Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements. |
Consolidated Fixed Charges means, with respect to any Person for any period, the sum, without
duplication, of:
|
(1) |
|
Consolidated Interest Expense; plus |
|
|
(2) |
|
the product of (x) the amount of all dividend payments on any series of Preferred
Stock of such Person and, to the extent permitted under the Indenture, its Restricted
Subsidiaries (other than dividends paid in Qualified Capital Stock) paid, accrued or
scheduled to be paid or accrued during such period times (y) a fraction, the numerator
of which is one and the denominator of which is one minus the then current effective
consolidated federal, state and local income tax rate of such Person, expressed as a
decimal. |
Consolidated Interest Expense means, with respect to any Person for any period, the sum of,
without duplication:
|
(1) |
|
the aggregate of the interest expense of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP,
including without limitation: (a) any amortization of debt discount and amortization or
write-off of deferred financing costs; (b) the net costs under Interest Swap Obligations
incurred in the fiscal quarter beginning after the Issue Date; (c) all capitalized
interest; and (d) the interest portion of any deferred payment obligation; and |
|
|
(2) |
|
the interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during
such period as determined on a consolidated basis in accordance with GAAP; less |
43
|
(3) |
|
interest income for such period. |
Consolidated Net Income means, with respect to any Person, for any period, the aggregate net
income (or loss) of such Person and its Restricted Subsidiaries for such period on a consolidated
basis, determined in accordance with GAAP; provided that there shall be excluded therefrom (without
duplication):
|
(1) |
|
after-tax gains from Asset Sales (without regard to the $10.0 million limitation
set forth in the definition thereof) or abandonments or reserves relating thereto; |
|
|
(2) |
|
after-tax items classified as extraordinary or nonrecurring gains; |
|
|
(3) |
|
the net income (but not loss) of any Restricted Subsidiary of the referent Person
to the extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is restricted by a contract, operation of law or
otherwise; |
|
|
(4) |
|
the net income of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the referent
Person or to a Wholly Owned Restricted Subsidiary of the referent Person by such Person; |
|
|
(5) |
|
any restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at any time
following the Issue Date; |
|
|
(6) |
|
income or loss attributable to discontinued operations (including, without
limitation, operations disposed of during such period whether or not such operations
were classified as discontinued); |
|
|
(7) |
|
in the case of a successor to the referent Person by consolidation or merger or
as a transferee of the referent Persons assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets; |
|
|
(8) |
|
fees and expenses incurred in connection with the refinancing or repayment of
Indebtedness (including this offering of the Notes and related refinancing transactions
in an aggregate amount not to exceed $15.0 million); |
|
|
(9) |
|
charges to earnings incurred in connection with the early retirement of the 2014
Notes; |
|
|
(10) |
|
the amount of extraordinary, nonrecurring or unusual losses or charges (including
all fees, expenses or charges incurred in connection with acquisitions, mergers of
consolidations after the Issue Date); |
|
|
(11) |
|
any non-cash compensation charge or expense, including any such charge or expense
arising from the grants of stock appreciation or similar rights, stock options,
restricted stock or other rights or equity incentive programs; |
|
|
(12) |
|
any net after-tax effect of income (loss) from the early extinguishment or
conversion of (a) Indebtedness, (b) Hedging Obligations or (c) other derivative
instruments; |
|
|
(13) |
|
any impairment charge or asset write-off or write-down, including impairment
charges or asset write-offs or write-downs related to goodwill, intangible assets,
long-lived assets, investments in debt and equity securities or as a result of a change
in law or regulation, in each case, pursuant to GAAP, and the amortization of
intangibles arising pursuant to GAAP; and |
|
|
(14) |
|
any non-cash income (or loss) related to the recording of the fair market value
of Interest Swap Obligations and Currency Agreements entered into in the ordinary course
of business and not for speculative purposes. |
Consolidated Non-cash Charges means, with respect to any Person, for any period, the aggregate
depreciation, amortization and other non-cash expenses of such Person and its Restricted
Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss or any such charge which requires an accrual of or a
reserve for cash charges for any future period).
Consolidated Secured Leverage Ratio means, as of the date of determination (the Secured Leverage
Ratio Calculation Date), the ratio of (a) the total Indebtedness of the Company and its Restricted
Subsidiaries as of the end of the most recent fiscal quarter for which internal financial
statements are available that is secured by Liens (other than property or assets held in defeasance
or similar trust or arrangement for the benefit of the Indebtedness secured thereby) to (b)
Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recently ended four
fiscal quarters ending immediately prior to such date for which internal
44
financial statements are available, with such pro forma adjustments as are appropriate and
consistent with the pro forma adjustment provisions set forth in the definition of Consolidated
Fixed Charge Coverage Ratio.
Credit Agreement means the ABL Credit Agreement dated as of June 27, 2008, as amended by that
certain First Amendment to the ABL Credit Agreement, dated as of August 31, 2008, and further
amended by that Second Amendment to the ABL Credit Agreement, dated as of August 17, 2010, between
the Company, certain of the Companys subsidiaries, the lenders party thereto in their capacities
as lenders thereunder, Deutsche Bank AG, New York Branch, as administrative agent (the Agent) and
Deutsche Bank Securities Inc. and Banc of America Securities, LLC as joint lead arrangers, together
with the related documents thereto (including, without limitation, any notes, guarantee agreements
and security documents), in each case as such agreements may be amended (including any amendment
and restatement thereof), supplemented or otherwise modified from time to time, including one or
more credit agreements, loan agreements, indentures or similar agreements extending the maturity
of, refinancing, replacing, renewing or otherwise restructuring (including increasing the amount of
available credit thereunder or adding Subsidiaries of the Company as additional borrowers or
guarantors thereunder) all or any portion of the Indebtedness under such agreement or agreements or
any successor or replacement agreement or agreements and whether by the same or any other agent,
lender or group of lenders.
Credit Facilities means one or more of (i) the Credit Agreement and (ii) any other facilities or
arrangements designated by the Company, in each case with one or more banks or other lenders or
institutions, providing for revolving credit loans, term loans, receivables or fleet financings
(including without limitation through the sale of receivables or fleet assets to such institutions
or to special purpose entities formed to borrow from such institutions against such receivables or
fleet assets or the creation of any Liens in respect of such receivables or fleet assets in favor
of such institutions), letters of credit or other Indebtedness, in each case, including all
agreements, instruments and documents executed and delivered pursuant to or in connection with any
of the foregoing, including but not limited to any notes and letters of credit issued pursuant
thereto and any guarantee and collateral agreement, patent and trademark security agreement,
mortgages or letter of credit applications and other guarantees, pledge agreements, security
agreements and collateral documents, in each case as the same may be amended, supplemented, waived
or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed,
repaid, increased or extended from time to time (whether in whole or in part, whether with the
original banks, lenders or institutions or other banks, lenders or institutions or otherwise, and
whether provided under any original Credit Agreement or one or more other credit agreements,
indentures, financing agreements or other Credit Facilities or otherwise). Without limiting the
generality of the foregoing, the term Credit Facility shall include any agreement (i) changing
the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding
Subsidiaries as additional borrowers or guarantors thereunder, (iii) increasing the amount of
Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering
the terms and conditions thereof.
Currency Agreement means any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect the Company or any Restricted Subsidiary of the
Company against fluctuations in currency values.
Default means an event or condition the occurrence of which is, or with the lapse of time or the
giving of notice or both would be, an Event of Default.
Disqualified Capital Stock means that portion of any Capital Stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is exchangeable at the option of
the holder thereof), or upon the happening of any event (other than an event which would constitute
a Change of Control), matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon
the occurrence of a Change of Control) on or prior to the final maturity date of the Notes.
Domestic Restricted Subsidiary means a Restricted Subsidiary incorporated or otherwise organized
or existing under the laws of the United States, any state thereof or any territory or possession
of the United States.
Equity Offering means a public or private offering of Qualified Capital Stock of the Company or
any of its Subsidiaries other than:
|
(1) |
|
public offerings with respect to the common stock of the Company or any
subsidiary registered on Form S-8; and |
|
|
(2) |
|
issuances to any Subsidiary of the Company. |
Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor statute or
statutes thereto.
exchange notes means the 7 7/8% Senior Notes due 2020 issued in exchange for the old notes ,
which exchange notes are registered under the Securities Act.
fair market value means, with respect to any asset or property, the price which could be
negotiated in an arms-length, free-market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to
45
complete the transaction. Fair market value shall be determined by the Board of Directors of the
Company acting reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
Foreign Subsidiaries means any Restricted Subsidiary that is not a Domestic Restricted
Subsidiary.
GAAP means generally accepted accounting principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
Guarantee means a guarantee of the Notes by a Guarantor.
Guarantor means each of the Companys Domestic Restricted Subsidiaries that in the future
executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the
terms of the Indenture as a Guarantor; provided that any Person constituting a Guarantor as
described above shall cease to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of the Indenture.
Indebtedness means with respect to any Person, without duplication:
|
(1) |
|
all Obligations of such Person for borrowed money; |
|
|
(2) |
|
all Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments; |
|
|
(3) |
|
all Capitalized Lease Obligations of such Person; |
|
|
(4) |
|
all Obligations of such Person issued or assumed as the deferred purchase price
of property, all conditional sale obligations and all Obligations under any title
retention agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90 days or more or
are being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted); |
|
|
(5) |
|
all Obligations for the reimbursement of any obligor on any letter of credit,
bankers acceptance or similar credit transaction; |
|
|
(6) |
|
guarantees and other contingent obligations in respect of Indebtedness referred
to in clauses (1) through (5) above and clause (8) below; |
|
|
(7) |
|
all Obligations of any other Person of the type referred to in clauses (1)
through (6) which are secured by any lien on any property or asset of such Person, the
amount of such Obligation being deemed to be the lesser of the fair market value of such
property or asset or the amount of the Obligation so secured; |
|
|
(8) |
|
all Obligations under currency agreements and interest swap agreements of such
Person; and |
|
|
(9) |
|
all Disqualified Capital Stock issued by such Person with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the greater
of its voluntary or involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued dividends, if any. |
For purposes hereof, the maximum fixed repurchase price of any Disqualified Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair
market value shall be determined reasonably and in good faith by the Board of Directors of the
issuer of such Disqualified Capital Stock.
Independent Financial Advisor means a firm: (1) which does not, and whose directors, officers and
employees or Affiliates do not, have a direct or indirect financial interest in the Company; and
(2) which, in the judgment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
Interest Swap Obligations means the obligations of any Person pursuant to any arrangement with
any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to
time periodic payments calculated by applying either a floating or a fixed rate of interest on a
stated notional amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and shall include,
without limitation, interest rate swaps, caps, floors, collars and similar agreements.
46
Investment means, with respect to any Person, any direct or indirect loan or other extension of
credit (including, without limitation, a guarantee) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any other
Person. Investment shall exclude (i) extensions of trade credit by the Company and its Restricted
Subsidiaries on commercially reasonable terms in accordance with normal trade practices of the
Company or such Restricted Subsidiary, as the case may be; (ii) the acquisition of property and
assets from suppliers and other vendors in the normal course of business and consistent with past
practice; and (iii) prepaid expenses and workers compensation, utility, lease and similar
deposits, in the normal course of business and consistent with past practice. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Common Stock of any direct
or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary, the Company shall be deemed to have
made an Investment on the date of any such sale or disposition equal to the fair market value of
the Common Stock of such Restricted Subsidiary not sold or disposed of.
Investment Grade Rating means a rating equal to or higher than Baa3 (or equivalent) by Moodys or
BBB- (or equivalent) by S&P, or an equivalent rating by any other Rating Agency.
Issue Date means November 23, 2010.
Lien means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of
any kind (including any conditional sale or other title retention agreement, any lease in the
nature thereof and any agreement to give any security interest).
Moodys means Moodys Investors Service, Inc. or any successor to the rating agency business
thereof.
Net Cash Proceeds means, with respect to any Asset Sale, the proceeds in the form of cash or Cash
Equivalents including payments in respect of deferred payment obligations when received in the form
of cash or Cash Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from such Asset Sale net
of:
|
(1) |
|
reasonable out-of-pocket expenses and fees relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees and sales
commissions); |
|
|
(2) |
|
taxes paid or payable after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing arrangements; |
|
|
(3) |
|
repayment of Indebtedness that is secured by the property or assets that are the
subject of such Asset Sale; |
|
|
(4) |
|
amounts required to be paid to any Person owning a beneficial interest in or
having a Lien on the assets subject to the Asset Sale; and |
|
|
(5) |
|
appropriate amounts to be provided by the Company or any Restricted Subsidiary,
as the case may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations associated
with such Asset Sale. |
Notes means the old notes and any exchange notes.
Obligations means all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
old notes means the 7 7/8% Senior Notes due 2020 issued on the Issue Date under the Indenture and
not registered under the Securities Act.
Pari Passu Debt means any Indebtedness of the Company or any Guarantor that ranks pari passu in
right of payment with the Notes or such Guarantee, as applicable.
Permitted Business means any business conducted by the Company on the Issue Date, any reasonable
extension thereof, and any additional business reasonably ancillary, incidental, complementary or
related to, or a reasonable extension, development or expansion of, the business conducted by the
Company and the Restricted Subsidiaries on the Issue Date, in each case, as determined in good
faith by the Board of Directors of the Company.
Permitted Indebtedness means, without duplication, each of the following:
47
|
(1) |
|
Indebtedness under the Notes issued on the Issue Date in an aggregate principal
amount not to exceed $200.0 million; |
|
|
(2) |
|
(a) Indebtedness incurred pursuant to the Credit Agreement and (b) Indebtedness
incurred pursuant to a Qualified Securitization Transaction in an aggregate principal
amount at any time outstanding for Indebtedness incurred under clauses (a) and (b) not
to exceed the greater of (i) $950.0 million less the amount of all required permanent
repayments (which are accompanied by a corresponding permanent commitment reduction)
thereunder with the Net Cash Proceeds from Asset Sales and (ii) $25.0 million plus the
Borrowing Base; |
|
|
(3) |
|
other Indebtedness of the Company and its Restricted Subsidiaries outstanding on
the Issue Date reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions thereon; |
|
|
(4) |
|
Interest Swap Obligations of the Company or any Restricted Subsidiary of the
Company covering Indebtedness of the Company or any of its Restricted Subsidiaries;
provided, however, that such Interest Swap Obligations are entered into to protect the
Company and its Restricted Subsidiaries from fluctuations in interest rates on its
outstanding Indebtedness to the extent the notional principal amount of such Interest
Swap Obligation does not, at the time of the incurrence thereof, exceed the principal
amount of the Indebtedness to which such Interest Swap Obligation relates; |
|
|
(5) |
|
Indebtedness under Currency Agreements; provided that in the case of Currency
Agreements which relate to Indebtedness, such Currency Agreements do not increase the
Indebtedness of the Company and its Restricted Subsidiaries outstanding other than as a
result of fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder; |
|
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(6) |
|
Indebtedness of a Restricted Subsidiary of the Company to the Company or to a
Restricted Subsidiary of the Company for so long as such Indebtedness is held by the
Company or a Restricted Subsidiary of the Company or the holder of a Lien permitted
under the Indenture, in each case subject to no Lien held by a Person other than the
Company or a Restricted Subsidiary of the Company or the holder of a Lien permitted
under the Indenture; provided that if as of any date any Person other than the Company
or a Restricted Subsidiary of the Company or the holder of a Lien permitted under the
Indenture owns or holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness under this clause (6) by the issuer of such Indebtedness; |
|
|
(7) |
|
Indebtedness of the Company to a Restricted Subsidiary of the Company for so long
as such Indebtedness is held by a Restricted Subsidiary of the Company or the holder of
a Lien permitted under the Indenture, in each case subject to no Lien other than a Lien
permitted under the Indenture; provided that (a) any Indebtedness of the Company to any
Restricted Subsidiary of the Company that is not a Guarantor is unsecured and
subordinated, pursuant to a written agreement, to the Companys obligations under the
Indenture and the Notes and (b) if as of any date any Person other than a Restricted
Subsidiary of the Company or the holder of a Lien permitted under the Indenture owns or
holds any such Indebtedness or any Person holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness under this clause (7) by the Company; |
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(8) |
|
Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five business days of
incurrence; |
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(9) |
|
Indebtedness of the Company or any of its Restricted Subsidiaries in respect of
performance bonds, bankers acceptances, workers compensation claims, surety or appeal
bonds, payment obligations in connection with self-insurance or similar obligations, and
bank overdrafts (and letters of credit in respect thereof) in the ordinary course of
business; |
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(10) |
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Indebtedness represented by Capitalized Lease Obligations and Purchase Money
Indebtedness of the Company and its Restricted Subsidiaries incurred in the ordinary
course of business in an aggregate principal amount not to exceed the greater of (x)
$50.0 million and (y) 4% of Consolidated Assets of the Company at any one time
outstanding; |
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(11) |
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Refinancing Indebtedness; |
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(12) |
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Indebtedness represented by guarantees by the Company or its Restricted
Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture; |
48
|
(13) |
|
Indebtedness of the Company or any Restricted Subsidiary consisting of
guarantees, indemnities or obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets; |
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(14) |
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Acquired Indebtedness of the Company or any Restricted Subsidiary, in an
aggregate principal amount not to exceed $20.0 million; |
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(15) |
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additional Indebtedness of the Company and its Restricted Subsidiaries in an
aggregate principal amount not to exceed at any one time outstanding the greater of (x)
$50.0 million and (y) 4% of Consolidated Assets of the Company (which amount may, but
need not, be incurred in whole or in part under the Credit Agreement); and |
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(16) |
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Indebtedness of Foreign Subsidiaries that are Restricted Subsidiaries in an
aggregate principal amount not to exceed at any one time outstanding the greater of (x)
$50.0 million and (y) the Borrowing Base of such Foreign Subsidiaries. |
For purposes of determining compliance with the Limitation on Incurrence of Additional
Indebtedness covenant, (1) in the event that an item of Indebtedness meets the criteria of more
than one of the categories of Permitted Indebtedness described in clauses (1) through (16) above or
is entitled to be incurred pursuant to the Consolidated Fixed Charge Coverage Ratio provisions of
such covenant, the Company shall, in its sole discretion, classify (or later reclassify) such item
of Indebtedness in any manner that complies with the covenant described under Certain Covenants
Limitation on Incurrence of Additional Indebtedness; provided that all Indebtedness outstanding
under the Credit Agreement up to the maximum amount permitted under clause (2) of this definition
above shall be deemed to have been incurred pursuant to clause (2) of this definition; (2) the
outstanding principal amount of any particular Indebtedness shall be counted only once and any
obligations arising under any guarantee, lien, letter of credit or similar instrument supporting
such Indebtedness shall be disregarded; (3) the maximum amount of Indebtedness that the Company or
a Restricted Subsidiary may incur pursuant to the Limitation on Incurrence of Additional
Indebtedness covenant shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies; and (4)
the accrual of interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Capital Stock in the form of additional shares of the same
class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Capital Stock for purposes of the covenant described under Certain
CovenantsLimitation on Incurrence of Additional Indebtedness.
Permitted Investments means:
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(1) |
|
Investments by the Company or any Restricted Subsidiary of the Company in any
Person that is or will become immediately after such Investment a Restricted Subsidiary
of the Company or that will merge or consolidate into the Company or a Restricted
Subsidiary of the Company; |
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(2) |
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Investments in the Company by any Restricted Subsidiary of the Company; |
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(3) |
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investments in cash and Cash Equivalents; |
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(4) |
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loans and advances to employees, directors and officers of the Company and its
Restricted Subsidiaries in the ordinary course of business for bona fide business
purposes not in excess of $1.0 million at any one time outstanding; |
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(5) |
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Currency Agreements and Interest Swap Obligations entered into in the ordinary
course of the Companys or its Restricted Subsidiaries businesses and otherwise in
compliance with the Indenture; |
|
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(6) |
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additional Investments in an aggregate principal amount not to exceed the greater
of (x) $50.0 million and (y) 4.0% of Consolidated Assets of the Company at any one time
outstanding; |
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(7) |
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Investments in securities of trade creditors or customers received pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of
such trade creditors or customers or in good faith settlement of delinquent obligations
of such trade creditors or customers; |
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(8) |
|
Investments made by the Company or its Restricted Subsidiaries as a result of
consideration received in connection with an Asset Sale made in compliance with the
Limitation on Asset Sales covenant; |
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(9) |
|
Investments represented by guarantees that are otherwise permitted under the
Indenture; |
49
|
(10) |
|
Investments the payment for which is Qualified Capital Stock of the Company; |
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(11) |
|
Investments in a Special Purpose Vehicle in connection with a Qualified
Securitization Transaction; provided, however, that the only assets transferred to such
Special Purpose Vehicle consist of Receivables and related assets of such Special
Purpose Vehicle; and |
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(12) |
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Investments in existence on the date of the Indenture and an Investment in any
Person to the extent such Investment replaces or refinances an Investment in such Person
existing on the date of the Indenture in an amount not exceeding the amount of the
Investment being replaced or refinanced; provided, however, that the new Investment is
on terms and conditions no less favorable to the Company and its Restricted Subsidiaries
than the Investment being renewed or replaced. |
Permitted Liens means the following types of Liens:
|
(1) |
|
Liens for taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings and as to which the
Company or its Restricted Subsidiaries shall have set aside on its books such reserves
as may be required pursuant to GAAP; |
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|
(2) |
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statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof; |
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(3) |
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Liens incurred or deposits made in the ordinary course of business in connection
with workers compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases, warranty
requirements, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money); |
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(4) |
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judgment Liens not giving rise to an Event of Default so long as such Lien is
adequately bonded and any appropriate legal proceedings which may have been duly
initiated for the review of such judgment shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired; |
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(5) |
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easements, rights-of-way, zoning restrictions and other similar charges or
encumbrances in respect of real property not interfering in any material respect with
the ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries; |
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(6) |
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any interest or title of a lessor under any Capitalized Lease Obligation;
provided that such Liens do not extend to any property or assets which is not leased
property subject to such Capitalized Lease Obligation other than proceeds thereof; |
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(7) |
|
Liens securing Purchase Money Indebtedness incurred or in the ordinary course of
business; provided, however, that (a) such Purchase Money Indebtedness shall not exceed
the purchase price or other cost of such property or equipment and shall not be secured
by any property or equipment of the Company or any Restricted Subsidiary of the Company
other than the property and equipment so acquired and (b) the Lien securing such
Purchase Money Indebtedness shall be created within 90 days of such acquisition; |
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(8) |
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Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Persons obligations in respect of letters of credit or bankers
acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods; |
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(9) |
|
Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other property relating to such letters of credit
and products and proceeds thereof; |
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(10) |
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Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual, or warranty requirements of the Company or any of its
Restricted Subsidiaries, including rights of offset and setoff; |
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(11) |
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Liens securing Interest Swap Obligations which Interest Swap Obligations relate
to Indebtedness that is otherwise permitted under the Indenture; |
50
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(12) |
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Liens securing Indebtedness under Currency Agreements; |
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(13) |
|
Liens securing Acquired Indebtedness incurred in accordance with the covenant
described under Certain CovenantsLimitation on Incurrence of Additional
Indebtedness; provided that: |
|
(a) |
|
such Liens secured such Acquired Indebtedness at the time of and
prior to the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and were not granted in connection with, or
in anticipation of, the incurrence of such Acquired Indebtedness by the Company
or a Restricted Subsidiary of the Company, and |
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(b) |
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such Liens do not extend to or cover any property or assets of the
Company or of any of its Restricted Subsidiaries other than the property or
assets that secured the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Company or a Restricted Subsidiary of the
Company and are no more favorable to the lienholders than those securing the
Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by
the Company or a Restricted Subsidiary of the Company; |
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(14) |
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Liens on assets of a Restricted Subsidiary of the Company that is not a Guarantor
to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under
the Indenture; |
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(15) |
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leases, subleases, licenses and sublicenses granted to others that do not
materially interfere with the ordinary cause of business of the Company and its
Restricted Subsidiaries; |
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(16) |
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bankers Liens, rights of setoff and similar Liens with respect to cash and Cash
Equivalents on deposit in one or more bank accounts in the ordinary course of business; |
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(17) |
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Liens arising from filing Uniform Commercial Code financing statements regarding
leases; |
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(18) |
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Liens in favor of customs and revenue authorities arising as a matter of law to
secure payments of custom duties in connection with the importation of goods; |
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(19) |
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Liens securing Indebtedness permitted to be incurred pursuant to clause (15) or
(16) of the definition of Permitted Indebtedness; provided, that, in the case of
clause (16), such Liens do not extend to any assets other than the assets of such
Foreign Subsidiaries; |
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(20) |
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Liens on Receivables to reflect sales of receivables pursuant to a Qualified
Securitization Transaction; |
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(21) |
|
other Liens securing obligations or Indebtedness for borrowed money with respect
to property or assets with an aggregate fair market value (valued at the time of
creation thereof) of not more than $25.0 million at any time in the aggregate; and |
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(22) |
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deposits made in the ordinary course of business to secure liability to insurance
carriers. |
Person means an individual, partnership, corporation, unincorporated organization, trust or joint
venture, or a governmental agency or political subdivision thereof.
Preferred Stock of any Person means any Capital Stock of such Person that has preferential rights
to any other Capital Stock of such Person with respect to dividends or redemptions or upon
liquidation.
Purchase Money Indebtedness means Indebtedness of the Company and its Restricted Subsidiaries
incurred in the normal course of business for the purpose of financing all or any part of the
purchase price, or the cost of installation, construction or improvement, of property or equipment.
Qualified Capital Stock means any Capital Stock that is not Disqualified Capital Stock.
Qualified Securitization Transaction means any transaction or series of transactions that may be
entered into by the Company or any Restricted Subsidiary in connection with or reasonably related
to a transaction or series of transactions in which the Company or any Restricted Subsidiary may
sell, convey or otherwise transfer to (1) a Special Purpose Vehicle or (2) any other Person, or may
grant a security interest in, any equipment and related assets (including contract rights) or
Receivables or interests therein secured by goods or services financed thereby (whether such
Receivables are then existing or arising in the future) of the Company or any Restricted
Subsidiary, and any assets relating thereto including, without limitation, all security or
ownership interests in goods or services financed thereby, the proceeds of such Receivables, and
other assets which are customarily sold or in respect of which security
51
interests are customarily granted in connection with securitization transactions involving such
assets, as any agreement governing any such transactions may be renewed, refinanced, amended,
restated or modified from time to time.
Rating Agency means (1) each of Moodys and S&P and (2) if Moodys or S&P ceases to rate the
Notes for reasons outside of the Companys control, a nationally recognized statistical rating
organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the
Company or any parent company of the Company as a replacement agency for Moodys or S&P, as the
case may be.
Receivables means any right of payment from or on behalf of any obligor, whether constituting an
account, chattel paper, instrument, general intangible or otherwise, arising from the financing by
the Company or any Restricted Subsidiary of goods or services, and monies due thereunder, security
or ownership interests in the goods and services financed thereby, records relating thereto, and
the right to payment of any interest or finance charges and other obligations with respect thereto,
proceeds from claims on insurance policies related thereto, any other proceeds related thereto, and
other related rights.
Reference Treasury Dealer means Deutsche Bank Securities Inc. and its successors; provided,
however, that if it shall cease to be a primary U.S. Government securities dealer in New York City
(a Primary Treasury Dealer), the Company shall substitute therefor another Primary Treasury
Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and
any redemption date, the average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such redemption date.
Refinance means, in respect of any security or Indebtedness, to refinance, extend, renew, refund,
repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or
replacement for, such security or Indebtedness in whole or in part. Refinanced and Refinancing
shall have correlative meanings.
Refinancing Indebtedness means any Refinancing by the Company or any Restricted Subsidiary of the
Company of Indebtedness incurred in accordance with the covenant described under Certain
CovenantsLimitation on Incurrence of Additional Indebtedness (other than pursuant to clause (2),
(4), (5), (6), (7), (8) , (9), (10), (12), (13), (15) or (16) of the definition of Permitted
Indebtedness), in each case that does not:
|
(1) |
|
result in an increase in the aggregate principal amount of Indebtedness of such
Person as of the date of such proposed Refinancing above the sum of (i) the aggregate
principal amount of such Indebtedness, plus (ii) the accrued interest on and amount of
any premium required to be paid under the terms of the instrument governing such
Indebtedness, plus (iii) the amount of reasonable expenses incurred by the Company in
connection with such Refinancing; or |
|
|
(2) |
|
create Indebtedness with: (a) a Weighted Average Life to Maturity that is less
than the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or (b)
a final maturity earlier than the final maturity of the Indebtedness being Refinanced; |
provided that (x) if such Indebtedness being Refinanced is Indebtedness solely of the Company (and
is not otherwise guaranteed by a Restricted Subsidiary of the Company), then such Refinancing
Indebtedness shall be Indebtedness solely of the Company and (y) if such Indebtedness being
Refinanced is subordinate or junior to the Notes or any Guarantee, then such Refinancing
Indebtedness shall be subordinate to the Notes or such Guarantee, as the case may be, at least to
the same extent and in the same manner as the Indebtedness being Refinanced.
Restricted Subsidiary of any Person means any Subsidiary of such Person which at the time of
determination is not an Unrestricted Subsidiary.
S&P means Standard & Poors Ratings Group or any successor to the rating agency business thereof.
Sale and Leaseback Transaction means any direct or indirect arrangement with any Person or to
which any such Person is a party, providing for the leasing to the Company or a Restricted
Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue
Date or later acquired, which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be
advanced by such Person on the security of such Property.
Securities Act means the Securities Act of 1933, as amended.
52
Significant Subsidiary, with respect to any Person, means any Restricted Subsidiary of such
Person that satisfies the criteria for a significant subsidiary set forth in Rule 1.02(w) of
Regulation S-X under the Exchange Act.
Special Purpose Vehicle means a bankruptcy-remote entity or trust or other special purpose entity
that is formed by the Company, any Subsidiary of the Company or any other Person for the purpose
of, and engages in no material business other than in connection with a Qualified Securitization
Transaction or other similar transactions of Receivables or other similar or related assets.
Subordinated Indebtedness means Indebtedness of the Company or any Guarantor that is subordinated
or junior in right of payment to the Notes or the Guarantee of such Guarantor, as the case may be.
Subsidiary, with respect to any Person, means:
|
(1) |
|
any corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person; or |
|
|
(2) |
|
any other Person of which at least a majority of the voting interest under
ordinary circumstances is at the time, directly or indirectly, owned by such Person. |
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the yield
to maturity of the Comparable Treasury Issue, compounded semi-annually, assuming a price for such
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
2014 Notes means the 9 3/4% Senior Notes due 2014 issued pursuant to the indenture dated as of
August 1, 2006 by and among Mobile Services Group, Inc. and Mobile Storage Group, Inc., as issuers,
the subsidiary guarantors named therein and Wells Fargo Bank, N.A., as trustee.
Unrestricted Subsidiary of any Person means:
|
(1) |
|
any Subsidiary of such Person that at the time of determination shall be or
continue to be designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below; and |
|
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(2) |
|
any Subsidiary of an Unrestricted Subsidiary. |
The Board of Directors may designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that
is not a Subsidiary of the Subsidiary to be so designated; provided that:
|
(1) |
|
the Company certifies to the Trustee that such designation complies with the
covenant described under Certain CovenantsLimitation on Restricted Payments; and |
|
|
(2) |
|
each Subsidiary to be so designated and each of its Subsidiaries has not at the
time of designation, and does not thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries. |
For purposes of making the determination of whether any such designation of a Subsidiary as an
Unrestricted Subsidiary complies with the covenant described under Certain CovenantsLimitation
on Restricted Payments, the portion of the fair market value of the net assets of such Subsidiary
of the Company at the time that such Subsidiary is designated as an Unrestricted Subsidiary that is
represented by the interest of the Company and its Restricted Subsidiaries in such Subsidiary, in
each case as determined in good faith by the Board of Directors of the Company, shall be deemed to
be an Investment. Such designation will be permitted only if such Investment would be permitted at
such time under the Limitation on Restricted Payments covenant.
The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only
if:
|
(1) |
|
immediately after giving effect to such designation, the Company is able to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with the covenant described under Certain CovenantsLimitation on
Incurrence of Additional Indebtedness; and |
|
|
(2) |
|
immediately before and immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing. Any such designation
by the Board of Directors shall be evidenced to the Trustee
|
53
|
|
|
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. |
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number
of years obtained by dividing (a) the then outstanding aggregate principal amount of such
Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the amount
of each then remaining installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and the making of such
payment.
Wholly Owned Restricted Subsidiary of any Person means any Wholly Owned Subsidiary of such Person
which at the time of determination is a Restricted Subsidiary of such Person.
Wholly Owned Subsidiary of any Person means any Subsidiary of such Person of which all the
outstanding voting securities (other than in the case of a foreign Subsidiary, directors
qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant
to applicable law) are owned by such Person or any Wholly Owned Subsidiary of such Person.
54
BOOK-ENTRY; DELIVERY AND FORM
The certificates representing the exchange notes will be issued in fully registered form without
interest coupons.
The exchange notes initially will be represented by notes in registered, global form without
interest coupons (collectively, the Global Notes). The Global Notes will be deposited upon
issuance with the trustee as custodian for DTC, in New York, New York, and registered in the name
of DTCs nominee, Cede & Co., for credit to an account of a direct or indirect participant in DTC
as described below. Global Notes may be transferred, in whole and not in part, only to another
nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes
may be held through Euroclear and Clearstream (as indirect participants in DTC).
The Global Notes
We expect that pursuant to procedures established by DTC (i) upon the issuance of the Global Notes,
DTC or its custodian will credit, on its internal system, the principal amount at maturity of the
individual beneficial interests represented by such Global Notes to the respective accounts of
persons who have accounts with such depositary and (ii) ownership of beneficial interests in the
Global Notes will be shown on, and the transfer of such ownership will be effected only through,
records maintained by DTC or its nominee (with respect to interests of participants) and the
records of participants (with respect to interests of persons other than participants). Such
accounts initially will be designated by or on behalf of the initial purchasers and ownership of
beneficial interests in the Global Notes will be limited to persons who have accounts with DTC
(participants) or persons who hold interests through participants. Holders may hold their
interests in the Global Notes directly through DTC if they are participants in such system, or
indirectly through organizations which are participants in such system.
So long as DTC, or its nominee, is the registered owner or holder of the notes, DTC or such
nominee, as the case may be, will be considered the sole owner or holder of the notes represented
by such Global Notes for all purposes under the indenture. No beneficial owner of an interest in
the Global Notes will be able to transfer that interest except in accordance with DTCs procedures,
in addition to those provided for under the indenture with respect to the notes.
Payments of the principal of, premium (if any) and interest (including additional interest, if any)
on the Global Notes will be made to DTC or its nominee, as the case may be, as the registered owner
thereof. None of us, the Trustee or any Paying Agent will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial ownership interests
in the Global Notes or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
We expect that DTC or its nominee, upon receipt of any payment of principal, premium, if any, and
interest (including additional interest, if any) on the Global Notes, will credit participants
accounts with payments in amounts proportionate to their respective beneficial interests in the
principal amount of the Global Notes as shown on the records of DTC or its nominee. We also expect
that payments by participants to owners of beneficial interests in the Global Notes held through
such participants will be governed by standing instructions and customary practice, as is now the
case with securities held for the accounts of customers registered in the names of nominees for
such customers. Such payments will be the responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary way through DTCs same-day
funds system in accordance with DTC rules and will be settled in same day funds. If a holder
requires physical delivery of a Certificated Security for any reason, including to sell notes to
persons in states which require physical delivery of the notes, or to pledge such securities, such
holder must transfer its interest in a Global Note, in accordance with the normal procedures of DTC
and with the procedures set forth in the indenture.
DTC has advised us that it will take any action permitted to be taken by a holder of notes
(including the presentation of notes for exchange as described below) only at the direction of one
or more participants to whose account the DTC interests in the Global Notes are credited and only
in respect of such portion of the aggregate principal amount of notes as to which such participant
or participants has or have given such direction. However, if there is an Event of Default under
the Indenture, DTC will exchange the Global Notes for Certificated Securities, which it will
distribute to its participants.
DTC has advised us as follows: DTC is a limited purpose trust company organized under the laws of
the State of New York, a member of the Federal Reserve System, a clearing corporation within the
meaning of the Uniform Commercial Code and a Clearing Agency registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold securities for its
participants and facilitate the clearance and settlement of securities transactions between
participants through electronic book-entry changes in accounts of its participants, thereby
eliminating the need for physical movement of certificates. Participants include securities brokers
and dealers, banks, trust companies and clearing corporations and certain other organizations.
Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a participant, either
directly or indirectly (indirect participants).
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Although DTC has agreed to the foregoing procedures in order to facilitate transfers of interests
in the Global Note among participants of DTC, it is under no obligation to perform such procedures,
and such procedures may be discontinued at any time. Neither we nor the Trustee, the Paying Agent,
the Registrar or the Transfer Agent will have any responsibility for the performance by DTC or its
participants or indirect participants of their respective obligations under the rules and
procedures governing their operations.
Certificated Securities
Certificated Securities shall be issued in exchange for beneficial interests in the Global Notes
(i) if requested by a holder of such interests or (ii) if DTC is at any time unwilling or unable to
continue as a depositary for the Global Notes and a successor depositary is not appointed by us
within 90 days.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material United States federal income tax consequences
relating to the exchange of old notes for exchange notes in the exchange offer. It does not contain
a complete analysis of all of the potential tax consequences relating to the exchange. This summary
is limited to holders of old notes who hold the old notes as capital assets (in general, assets
held for investment). Special situations, such as the following, are not addressed:
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tax consequences to holders who may be subject to special tax treatment, such as
tax-exempt entities, dealers in securities or currencies, banks, other financial
institutions, insurance companies, regulated investment companies, traders in securities
that elect to use a mark-to-market method of accounting for their securities holdings or
corporations that accumulate earnings to avoid United States federal income tax; |
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tax consequences to persons holding notes as part of a hedging, integrated, constructive
sale or conversion transaction or a straddle or other risk reduction transaction; |
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tax consequences to holders whose functional currency is not the United States dollar; |
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tax consequences to persons who hold notes through a partnership or similar pass-through
entity; |
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United States federal gift tax, estate tax or alternative minimum tax consequences, if
any; or |
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any state, local or non-United States tax consequences. |
We recommend that each holder consult its own tax advisor as to the particular tax consequences of
exchanging old notes for exchange notes in the exchange offer, including the applicability and
effect of any state, local or non-United States tax law.
The discussion below is based upon the provisions of the United States Internal Revenue Code of
1986, as amended, existing and proposed Treasury regulations promulgated thereunder, and rulings,
judicial decisions and administrative interpretations thereunder, as of the date hereof. Those
authorities may be changed, perhaps retroactively, so as to result in United States federal income
tax consequences different from those discussed below.
Consequences of Tendering Old Notes
The exchange of old notes for exchange notes pursuant to the exchange offer should not constitute
an exchange for United States federal income tax purposes because the exchange notes should not
be considered to differ materially in kind or extent from the old notes. Rather, the exchange notes
received by a holder should be treated as a continuation of the old notes in the hands of such
holder. Accordingly, there should be no United States federal income tax consequences to holders
exchanging old notes for exchange.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer
must acknowledge that it will deliver a prospectus in connection with any resale of such exchange
notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of exchange notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other trading activities.
We have agreed that, for a period of 180 days after the expiration of the exchange offer, we will
make this prospectus, as amended or supplemented, available to any broker-dealer for use in
connection with any such resales. In addition, until , 2011 (90 days after the date of
this prospectus), all broker-dealers effecting transactions in the exchange notes may be required
to deliver a prospectus.
We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes
received by broker-dealers for their own account pursuant to the exchange offer may be sold from
time to time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the exchange notes or a combination of such methods
of resale. These resales may be made at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale may be made directly
to purchasers or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any such exchange
notes. Any broker-dealer that resells exchange notes that were received by it for its own account
pursuant to the exchange offer and any broker or dealer that participates in a distribution of such
exchange notes may be deemed to be an underwriter within the meaning of the Securities Act, and
any profit on any such resale of exchange notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities Act. The letter of
transmittal delivered with this prospectus states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the Securities Act.
For a period of 180 days after the expiration of the exchange offer, we will promptly send
additional copies of this prospectus and any amendment or supplement to this prospectus to any
broker-dealer that requests such documents. We have agreed to pay all expenses incident to the
performance of our obligations in connection with the exchange offer. We will indemnify the holders
of the exchange notes (including any broker-dealer) against certain liabilities, including
liabilities under the Securities Act.
LEGAL MATTERS
The validity of the notes will be passed upon for us by DLA Piper LLP (US), Phoenix, Arizona.
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The consolidated financial statements of Mobile Mini, Inc. appearing in Mobile Mini, Inc.s
Annual Report (Form 10-K) for the year ended December 31, 2010 (including the schedule appearing
therein), have been audited by Ernst & Young LLP, independent registered public accounting firm, as
set forth in their report thereon, included therein, and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in reliance upon such report
given on the authority of such firm as experts in accounting and auditing.
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$200,000,000
Exchange Offer for 7 7/8% Senior Notes due 2020
PROSPECTUS
, 2011
We have not authorized any dealer, salesperson or other person to give any information or
represent anything to you other than the information contained or incorporated by reference in this
prospectus. You may not rely on unauthorized information or representations.
This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any
securities other than the registered securities to which it relates, nor does this prospectus
constitute an offer to sell or a solicitation to buy securities in any jurisdiction to any person
to whom it is unlawful to make such offer or solicitation in such jurisdiction.
This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any of
the securities in any jurisdiction where it is unlawful, where the person making the offer is not
qualified to do so, or to any person who cannot legally be offered the securities.
The information in this prospectus is current only as of the date on its cover, and may change
after that date. For any time after the cover date of this prospectus, we do not represent that our
affairs are the same as described or that the information in this prospectus is correct, nor do we
imply those things by delivering this prospectus or selling securities to you.
Until , 2011, all dealers that effect transactions in the exchange notes, whether or not
participating in this exchange offer, may be required to deliver a prospectus. This is in addition
to the dealers obligation to deliver a prospectus when acting as underwriters and with respect to
their unsold allotments or subscriptions.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Delaware Registrants
Mobile Mini, Inc. and Mobile Storage Group, Inc.
Mobile Mini, Inc. and Mobile Storage Group, Inc. are incorporated under the laws of the State of
Delaware. Section 145 of the General Corporation Law of the state of Delaware (DGCL), as amended,
provides that under certain circumstances, a Delaware corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, other than an action
by or in the right of the corporation, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the request of the
corporation in such capacity in another corporation or enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, has on reasonable cause
to believe such persons conduct was unlawful.
The DGCL authorizes a Delaware corporation to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him and incurred by him in any
such capacity, arising out of his status as such, whether or not the corporation would otherwise
have the power to indemnify him under Section 145.
Mobile Minis Amended and Restated Certificate of Incorporation and Bylaws, and Mobile Storage
Group, Inc.s Certificate of Incorporation and Bylaws, each provide for the indemnification of
their directors to the fullest extent permitted under Delaware law. Pursuant to employment
agreements entered into by Mobile Mini with certain of its executive officers, Mobile Mini must
indemnify such officers and employees in the same manner and to the same extent that it is required
to indemnify its directors under its Bylaws. Mobile Minis Amended and Restated Certificate of
Incorporation and Mobile Storage Group, Inc.s Certificate of Incorporation each limit the personal
liability of directors to each respective corporation or its stockholders to damages for breach of
the directors fiduciary duty.
Mobile Mini has entered into indemnification agreements with each of its directors. Generally, the
indemnification agreements attempt to provide the maximum protection permitted by Delaware law as
it may be amended from time to time. Moreover, the indemnification agreements provide for certain
additional indemnification. Under such additional indemnification provisions, however, a director
will not receive indemnification for judgments, settlements or expenses if he or she is found
liable to the Registrant (except to the extent the court determines he or she is fairly and
reasonably entitled to indemnity for expenses), for settlements not approved by the Registrant or
for settlements and expenses if the settlement is not approved by the court. The indemnification
agreements provide for the Registrant to advance to the individual any and all reasonable expenses
(including legal fees and expenses) incurred in investigating or defending any such action, suit or
proceeding. In order to receive an advance of expenses, the individual must submit to the
Registrant copies of invoices presented to him or her for such expenses. Also, the individual must
repay such advances upon a final judicial decision that he or she is not entitled to
indemnification.
Mobile Mini has purchased insurance on behalf of its directors and officers against certain
liabilities that may be asserted against, or incurred by, such persons in their capacities as
directors or officers of Mobile Mini, or that may arise out of their status as directors or
officers of the registrants, including liabilities under the federal and state securities laws.
Mobile Mini has entered into indemnification agreements to indemnify its directors to the extent
permitted under Delaware law.
Mobile Mini, LLC (Delaware)
Mobile Mini, LLC is organized as a limited liability company under the laws of the State of
Delaware. Section 18-108 of the Delaware Limited Liability Company Act provides that a limited
liability company, subject to any standards and restrictions in its limited liability company
agreement, may indemnify and hold harmless any member or manager or other person from and against
any and all claims and demands.
The Limited Liability Company Agreement of Mobile Mini, LLC provides that no liability shall attach
to Mobile Mini as a result of being the sole member of Mobile Mini, LLC.
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Arizona Registrants
Mobile Mini Dealer, Inc. and Mobile Mini I, Inc. are incorporated under the laws of the State of
Arizona. Section 10-851 of the Arizona Revised Statutes (ARS), as amended, authorizes a
corporation to indemnify a director made a party to a proceeding in such capacity, provided that
the individuals conduct was in good faith and, when serving in an official capacity with the
corporation, the individual reasonably believed that the conduct was in best interests of the
corporation, or in all other cases, that the conduct was at least not opposed to its best
interests. In the case of any criminal proceedings, indemnification is allowed if the individual
had no reasonable cause to believe the conduct was unlawful. A corporation may also indemnify a
director for conduct for which broader indemnification has been made permissible or obligatory
under a provision of the articles of incorporation pursuant to section 10-202, subsection B,
paragraph 2 of the ARS. Section 10-851 of the ARS also provides that a corporation may not
indemnify a director in connection with a proceeding by or in the right of the corporation to
procure a judgment in its favor in which the director was adjudged liable to the corporation or in
connection with any other proceeding charging improper financial benefit to the director in which
the director was adjudged liable on the basis that financial benefit was improperly received by the
director. Indemnification permitted under Section 10-851 in connection with a proceeding by or in
the right of the corporation to procure a judgment in its favor is limited to reasonable expenses
incurred in connection with the proceeding.
Unless otherwise limited by its articles of incorporation, Section 10-852 of the ARS requires a
corporation to indemnify (i) a director who was the prevailing party, on the merits or otherwise,
in the defense of any proceeding to which the director was a party because the director is or was a
director of the corporation against reasonable expenses incurred by the director in connection with
the proceeding, and (ii) an outside director, provided the proceeding is not one by or in the right
of the corporation to procure a judgment in its favor in which the director was adjudged liable to
the corporation, or one charging improper financial benefit to the director, whether or not
involving action in the directors official capacity, in which the director was adjudged liable on
the basis that financial benefit was improperly received by the director. Section 10-856 of the ARS
provides that a corporation may indemnify and advance expenses to an officer of the corporation who
is a party to a proceeding because the individual is or was an officer of the corporation to the
same extent as a director.
The Articles of Incorporation and Bylaws of Mobile Mini Dealer, Inc. eliminate the personal
liability of directors and provide for the indemnification of directors and officers to the extent
permitted by the ARS. Under its Bylaws, Mobile Mini Dealer, Inc. must indemnify authorized
representatives other than directors or officers who are successful on the merits or otherwise in
defense of any action, suit, or proceeding pursuant to which an officer or director would be
entitled to indemnification. Pursuant to its Bylaws, Mobile Mini Dealer, Inc. may, in its
discretion, provide for the indemnification of other authorized representatives.
The Articles of Incorporation of Mobile Mini I, Inc. provide for the indemnification of any person
who incurs expenses by reason of the fact such person is or was an officer, director, employee or
agent, and eliminate the liability of directors for breach of fiduciary duty to the extent
permitted by the ARS. The Bylaws of Mobile Mini I, Inc. provide for the indemnification of
directors against expenses, judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with any proceeding arising out of the fact that such person is or was a
director to the fullest extent permitted by law. Pursuant to its Bylaws, Mobile Mini I, Inc. may
indemnify its employees, officers and agents against expenses actually paid and reasonably incurred
in connection with any proceeding arising by reason of the fact that such person is or was an
employee, officer or agent.
Under their respective Bylaws, Mobile Mini Dealer, Inc. and Mobile Mini I, Inc. may purchase and
maintain insurance on behalf of current or former directors, officers, employees, or agents.
California Registrants
Corporations A Royal Wolf Portable Storage, Inc., Temporary Mobile Storage, Inc., A Better Mobile
Storage Company and MSG Investments, Inc. are incorporated under the laws of the State of
California. Under Section 317 of the California Corporations Code (CCC), as amended, a
corporation may indemnify a director, officer, employee or agent against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
if he acted in good faith and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. In the case of an action brought by
or in the right of a corporation, the corporation may indemnify a director, officer, employee or
agent of the corporation against expenses (including attorneys fees) actually and reasonably
incurred if he acted in good faith and in a manner reasonably believed to be in the best interests
of the corporation and its shareholders, except that no indemnification shall be made: (i) in
respect of any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation and its shareholders unless a court finds that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper, (ii) for amounts paid in settling or otherwise disposing of a pending
action without court approval, and (iii) for expenses incurred in defending a pending action which
is settled or otherwise disposed of without court approval.
Section 204(a)(10) of the CCC provides that a corporation may relieve its directors from personal
liability to such corporation or its shareholders for monetary damages for any breach of their
fiduciary duty as directors except (i) for acts or omissions that show a
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reckless disregard for the directors duty to the corporation or its shareholders in circumstances
in which the director was unaware, or should have been aware, in the ordinary course of performing
his or her duties, of a risk of serious injury to the corporation or its shareholders; (ii) for any
act or omission not in good faith or that a director believes to be contrary to the best interests
of the corporation or its shareholders; (iii) for any intentional misconduct or knowing and
culpable violation of law; (iv) for any willful or negligent violation of certain provisions of the
CCC imposing certain requirements with respect to the making of loans or guarantees and the payment
of dividends; (v) for any transaction from which the director derived an improper personal benefit;
or (vi) for acts or omissions that constitute an unexcused pattern of inattention that amounts to
an abdication of the directors duty to the corporation or its shareholders.
The Articles of Incorporation and Bylaws of A Royal Wolf Storage, Inc. and the Bylaws of Temporary
Mobile Storage, Inc. indemnify directors, officers, employees, and agents to the extent permitted
under California law.
Pursuant to its Bylaws, Temporary Mobile Storage, Inc. must indemnify directors, officers,
employees, and other agents in situations where such persons have been successful on the merits in
defense of any applicable proceeding. In situations where such persons have not been successful on
the merits, Temporary Mobile Storage, Inc. may indemnify such persons if appropriate authorization
has been obtained.
The Articles of Incorporation of A Better Mobile Storage Company and the Articles of Incorporation
and Bylaws of MSG Investments, Inc. eliminate the personal liability of directors and authorize the
indemnification of other agents to the extent permissible under California law. The Bylaws of A
Better Mobile Storage Company indemnify directors against expenses, judgments, fines, settlements
and other amounts reasonably incurred in connection with any proceeding arising by reason of the
fact such person is or was a director, and permit A Better Mobile Storage Company to indemnify
employees, officers, and other agents in a similar fashion.
The Bylaws of A Better Mobile Storage Company and Temporary Mobile Storage, Inc. permit each
company to purchase and maintain insurance on behalf of any agent insuring against liability
asserted or incurred by the agent in that capacity or arising out of the agents status as such.
Mobile Mini, LLC (California)
Mobile Mini, LLC is organized as a limited liability company under the laws of the State of
California. Section 17155 of the Beverly-Killea Limited Liability Company Act provides that,
except for a breach of certain fiduciary duties, the articles of organization or written operating
agreement of a limited liability company may provide for indemnification of any person, including,
without limitation, any manager, member, officer, employee or agent of the limited liability
company, against judgments, settlements, penalties, fines or expenses of any kind incurred as a
result of acting in that capacity. Such section also provides that the company shall have the power
to purchase and maintain insurance on behalf of any manager, member, officer, employee or agent of
the company against any liability asserted against or incurred by the person in that capacity or
arising out of the persons status as a manager, member, officer, employee, or agent of the
company.
The Limited Liability Company Operating Agreement of Mobile Mini, LLC provides that no liability
shall attach to Mobile Mini as a result of being the sole member of Mobile Mini, LLC.
Texas Registrant
Mobile Storage Group (Texas), L.P. is registered under the laws of the State of Texas. Article 11
of the Texas Revised Limited Partnership Act (TRLPA) provides for the indemnification of a
general partner or limited partner by the limited partnership under certain circumstances against
expenses and liabilities incurred in legal proceedings involving such persons because of their
being or having been a general partner or limited partner. Under the TRLPA, a limited partnership
may purchase insurance on behalf of a general partner or limited partner against any liability
incurred regardless of whether the person could be indemnified under the TLRPA.
The Limited Partnership Agreement of Mobile Storage Group (Texas), L.P. provides that should any
litigation commence between Mobile Storage, Inc., the general partner, and MSG Investments, Inc.,
the limited partner, or their respective representatives or should any party institute any
proceeding in bankruptcy or similar court which has jurisdiction over any other party to the
Limited Partnership Agreement or any or all of such partys or parties property or assets
concerning any provision of the Limited Partnership Agreement or the rights and duties of any
person or entity in relation thereto, the party or parties prevailing in such litigation shall be
entitled, in addition to such other relief as may be granted, to a reasonable sum as and for such
partys or parties attorneys fees and court costs in such litigation which shall be determined by
the court in such litigation or in a separate action brought for that purpose. In addition, any
ultimately prevailing party shall be entitled to recover costs of enforcing a judgment and costs of
appeal, including attorneys fees.
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Under the Limited Partnership Agreement, any partner who transfers its interests in the partnership
shall indemnify, defend and hold harmless Mobile Storage Group (Texas), L.P., and the other
partners and their affiliates, from and against any and all claims, demands, losses, and expenses
arising directly or indirectly, in whole or in part, out of any violation of securities laws
resulting from any such transfer or assignment of such partnership interests.
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Item 21. Exhibits and Financial Statement Schedules
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Exhibits |
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Reference is made to the Index to Exhibits filed as a part of this registration statement. |
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(b) |
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Financial Statement Schedules |
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All schedules have been omitted because they are not applicable or because the
required information is shown in the financial statements or notes thereto. |
Item 22. Undertakings
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The undersigned registrants hereby undertake: |
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to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: |
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(i) |
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to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; |
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(ii) |
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to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more that a 20 percent change in the
maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and |
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(iii) |
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to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; |
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that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering
thereof; |
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to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering. |
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that, for the purpose of determining liability under the Securities Act
of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the
date it is first used after effectiveness. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document
immediately prior to such date of first use. |
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that, for the purpose of determining liability of the registrants under
the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, in a primary offering of securities of the undersigned registrants
pursuant to this registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the undersigned
registrants will be sellers to the purchaser and will be considered to offer or sell
such securities to such purchaser: (i) any preliminary prospectus or prospectus of
the undersigned registrant relating to the offering required to be filed pursuant to
Rule 424; (ii) any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by the undersigned
registrant; (iii) the portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant or its
securities
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provided by or on behalf of the undersigned registrant; and (iv) any other
communication that is an offer in the offering made by the undersigned registrant to
the purchaser. |
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The undersigned registrants hereby undertake that, for the purposes of determining
any liability under the Securities Act of 1933, each filing of an annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plans annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration shall be deemed to be a new registration statement relating to the securities
offering therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. |
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Insofar as indemnification for liabilities arising under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of the registrants
pursuant to the foregoing provisions, or otherwise, the registrants have been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the
payment by the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrants will, unless in the opinion of their
counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is against
public policy as expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue. |
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(D) |
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The undersigned registrants hereby undertake to respond to requests for information
that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13
of Form S4 within one business day of receipt of such request, and to send the
incorporated documents by first class mail or equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request. |
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(E) |
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The undersigned registrants hereby undertake to supply by means of a post-effective
amendment all information concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in the registration statement
when it became effective. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Tempe, State of Arizona, on May 9, 2011.
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MOBILE MINI, INC.
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Date: May 9, 2011 |
By: |
/s/ Steven G. Bunger
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Steven G. Bunger, President |
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POWER OF ATTORNEY
The undersigned directors and officers of Mobile Mini, Inc. hereby appoint each of Steven G.
Bunger, Mark E. Funk and Christopher J. Miner, Esq. as attorney-in-fact for the undersigned, with
full power of substitution for, and in the name, place and stead of the undersigned, to sign and
file with the Securities and Exchange Commission under the Securities Act, any and all amendments
(including post-effective amendments) and exhibits to this registration statement on Form S-4 and
any and all applications and other documents to be filed with the Securities and Exchange
Commission pertaining to the registration of the securities covered hereby, with full power and
authority to do and perform any and all acts and things whatsoever requisite and necessary or
desirable, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
|
|
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|
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Date: May 9, 2011 |
By: |
/s/ Steven G. Bunger
|
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|
|
Steven G. Bunger |
|
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer) |
|
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|
|
Date: May 9, 2011 |
By: |
/s/ Mark E. Funk
|
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|
|
Mark E. Funk |
|
|
|
Executive Vice President and Chief Financial Officer
(Principal Financial Officer) |
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Deborah K. Keeley
|
|
|
|
Deborah K. Keeley |
|
|
|
Senior Vice President and Chief Accounting Officer
(Principal Accounting Officer) |
|
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|
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Date: May 9, 2011 |
By: |
/s/ James J. Martell
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|
|
James J. Martell, Director |
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|
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Date: May 9, 2011 |
By: |
/s/ Jeffrey S. Goble
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|
|
Jeffrey S. Goble, Director |
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Stephen A McConnell
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|
|
Stephen A McConnell, Director |
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Frederick G. McNamee
|
|
|
|
Frederick G. McNamee, Director |
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Sanjay Swani
|
|
|
|
Sanjay Swani, Director |
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Lawrence Trachtenberg
|
|
|
|
Lawrence Trachtenberg, Director |
|
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|
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Date: May 9, 2011 |
By: |
/s/ Michael L. Watts
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|
|
Michael L. Watts, Director |
|
66
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused
this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tempe, State of Arizona, on May 9, 2011.
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|
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|
MOBILE MINI DEALER, INC.
MOBILE MINI, LLC, a California limited liability
company
MOBILE MINI, LLC, a Delaware limited liability
company
MOBILE MINI I, INC.
A ROYAL WOLF PORTABLE STORAGE, INC.
TEMPORARY MOBILE STORAGE, INC.
MOBILE STORAGE GROUP (TEXAS) L.P.
MOBILE STORAGE GROUP, INC.
A BETTER MOBILE STORAGE COMPANY
MSG INVESTMENTS, INC.
|
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Date: May 9, 2011 |
By: |
/s/ Steven G. Bunger
|
|
|
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Steven G. Bunger, President and |
|
|
|
Chief Executive Officer |
|
|
POWER OF ATTORNEY
The undersigned directors and officers of the registrants listed above hereby appoint each of
Steven G. Bunger, Mark E. Funk and Christopher J. Miner, Esq. as attorney-in-fact for the
undersigned, with full power of substitution for, and in the name, place and stead of the
undersigned, to sign and file with the Securities and Exchange Commission under the Securities Act,
any and all amendments (including post-effective amendments) and exhibits to this registration
statement on Form S-4 and any and all applications and other documents to be filed with the
Securities and Exchange Commission pertaining to the registration of the securities covered hereby,
with full power and authority to do and perform any and all acts and things whatsoever requisite
and necessary or desirable, hereby ratifying and confirming all that said attorney-in-fact, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Steven G. Bunger
|
|
|
|
Steven G. Bunger |
|
|
|
President, Chief Executive Officer and Director of each
registrant listed above
(Principal Executive Officer) |
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Mark E. Funk
|
|
|
|
Mark E. Funk |
|
|
|
Executive Vice President, Chief Financial Officer and Director of each
registrant listed above
(Principal Financial Officer) |
|
|
|
|
Date: May 9, 2011 |
By: |
/s/ Deborah K. Keeley
|
|
|
|
Deborah K. Keeley |
|
|
|
Senior Vice President, Chief Accounting Officer, Treasurer and
Director of each registrant listed above
(Principal Accounting Officer) |
|
|
67
EXHIBIT INDEX
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
2.1
|
|
Agreement and Plan of Merger, dated as of February 22, 2008, among Mobile Mini, Inc., Cactus Merger Sub,
Inc., MSG WC Holdings Corp., and Welsh, Carson, Anderson & Stowe X, L.P. (Incorporated by reference to
Exhibit 2.1 to the Registrants Report on Form 8-K filed on February 28, 2008). |
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation of Mobile Mini, Inc. (Incorporated by reference to Exhibit
3.1 to the Registrants Report on Form 10-K for the fiscal year ended December 31, 1997). |
|
|
|
3.2
|
|
Certificate of Amendment, dated July 20, 2000, to the Amended and Restated Certificate of Incorporation of
the Registrant. (Incorporated by reference to Exhibit 3.1A to the Registrants Report on Form 10-Q for the
quarter ended June 30, 2000). |
|
|
|
3.3
|
|
Certificate of Designation, Preferences and Rights of Series C Junior Participating Preferred Stock of
Mobile Mini, Inc., dated December 17, 1999. (Incorporated by reference to Exhibit A to Exhibit 1 to the
Registrants Registration Statement on Form 8-A filed on December 13, 1999). |
|
|
|
3.4
|
|
Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Mobile Mini, Inc.,
dated June 26, 2008. (Incorporated by reference to Exhibit 3.2 to the Registrants Report on Form 8-K filed
on July 1, 2008). |
|
|
|
3.5
|
|
Certificate of Designation of Mobile Mini, Inc. Series A Convertible Redeemable Participating Preferred
Stock, dated June 27, 2008. (Incorporated by reference to Exhibit 3.1 to the Registrants Report on Form 8-K
filed on July 1, 2008). |
|
|
|
3.6
|
|
Amended and Restated By-laws of Mobile Mini, Inc., as amended and restated through May 2, 2007.
(Incorporated by reference to Exhibit 3.2 to the Registrants Report on Form 10-K for the fiscal year ended
December 31, 2007). |
|
|
|
3.8*
|
|
Articles of Incorporation of Mobile Mini Dealer, Inc. (f/k/a Delivery Design Systems, Inc.), as amended
through February 1, 2010. |
|
|
|
3.9*
|
|
Bylaws of Mobile Mini Dealer, Inc. (f/k/a Delivery Design Systems, Inc.). |
|
|
|
3.10*
|
|
Articles of Organization of Mobile Mini, LLC (CA), dated July 25, 2001. |
|
|
|
3.11*
|
|
Limited Liability Company Operating Agreement of Mobile Mini, LLC (CA), dated as of July 27, 2001. |
|
|
|
3.12*
|
|
Certificate of Formation of Mobile Mini, LLC (DE), dated September 10, 2001. |
|
|
|
3.13*
|
|
Limited Liability Company Agreement of Mobile Mini, LLC (DE), dated as of July 27, 2001. |
|
|
|
3.14*
|
|
Articles of Incorporation of Mobile Mini I, Inc., dated March 17, 1994., as amended and modified. |
|
|
|
3.15*
|
|
Bylaws of Mobile Mini I, Inc. |
|
|
|
3.16*
|
|
Articles of Incorporation of A Royal Wolf Portable Storage, Inc. (f/k/a International Equipment Marketing,
Inc.), as amended through June 22, 2001. |
|
|
|
3.17*
|
|
Bylaws of A Royal Wolf Portable Storage, Inc. (f/k/a International Equipment Marketing, Inc.), dated July
15, 1987. |
|
|
|
3.18*
|
|
Articles of Incorporation of Temporary Mobile Storage, Inc., filed with the Secretary of State of the State
of California on November 21, 1989. |
|
|
|
3.19*
|
|
Bylaws of Temporary Mobile Storage, Inc. |
|
|
|
3.20*
|
|
Certificate of Limited Partnership of Mobile Storage Group (Texas), L.P., effective as of September 30, 2002. |
|
|
|
3.21*
|
|
Amended and Restated Limited Partnership Agreement of Mobile Storage Group (Texas), L.P., dated as of
December 13, 2003. |
|
|
|
3.22*
|
|
Articles of Incorporation of A Better Mobile Storage Company, dated September 25, 2002. |
|
|
|
3.23*
|
|
Bylaws of A Better Mobile Storage Company, adopted on October 7, 2002. |
|
|
|
3.24*
|
|
Certificate of Incorporation of Mobile Storage Group, Inc., dated February 20, 2004. |
|
|
|
3.25*
|
|
Bylaws of Mobile Storage Group, Inc., effective February 20, 2004. |
|
|
|
3.26*
|
|
Articles of Incorporation of MSG Investments, Inc., dated September 25, 2001. |
68
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
3.27*
|
|
Bylaws of MSG Investments, Inc., dated October 1, 2001. |
|
|
|
4.1
|
|
Form of Common Stock Certificate. (Incorporated by reference to Exhibit 4.1 of the Registrants Report on
Form 10-K for the fiscal year ended December 31, 2003). |
|
|
|
4.2
|
|
Rights Agreement, dated as of December 9, 1999, between Mobile Mini, Inc. and Norwest Bank Minnesota, NA, as
Rights Agent. (Incorporated by reference to the Registrants Registration Statement on Form 8-A filed on
December 13, 1999). |
|
|
|
4.3
|
|
Indenture dated as of May 7, 2007 among the Registrant, Law Debenture Trust Company of New York, as Trustee,
and Deutsche Bank Trust Company Americas, as Paying Agent and Registrar. ((Incorporated by reference to
Exhibit 4.1 to the Registrants Registration Statement on Form S-4 filed on June 26, 2007) (the Mobile Mini
Indenture)). |
|
|
|
4.4
|
|
Supplemental Indenture, dated as of June 27, 2008, among Mobile Mini, Inc., Mobile Storage Group, Inc., A
Better Mobile Storage Company, Mobile Storage Group (Texas), LP, the guarantors party to the Mobile Mini
Indenture and Law Debenture Trust Company of New York, as trustee. (Incorporated by reference to Exhibit 4.3
to the Registrants Report on Form 8-K filed on July 1, 2008). |
|
|
|
4.5
|
|
Indenture, dated as of August 1, 2006, by and among Mobile Services Group, Inc., Mobile Storage Group, Inc.,
the subsidiary guarantors named therein and Wells Fargo Bank, N.A., as trustee. ((Incorporated by reference
to Exhibit 4.1 to Mobile Storage Group, Inc.s Form S-4 filed on September 18, 2007) (the MSG Indenture)). |
|
|
|
4.6
|
|
Supplemental Indenture, dated as of June 27, 2008, among Mobile Mini, Inc., Mobile Mini of Ohio, LLC, Mobile
Mini, LLC, Mobile, LLC, Mobile Mini I, Inc., A Royal Wolf Portable Storage, Inc., Temporary Mobile Storage,
Inc., Delivery Design Systems, Inc., Mobile Mini Texas Limited Partnership, LLP, Mobile Storage Group, Inc.,
the guarantors party to the MSG Indenture and Wells Fargo Bank, N.A., as trustee. (Incorporated by reference
to Exhibit 4.1 to the Registrants Report on Form 8-K filed on July 1, 2008). |
|
|
|
4.7
|
|
Indenture, dated as of November 23, 2010, among the Registrant, the Guarantor parties thereto, Law Debenture
Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar
and transfer agent. (Incorporated by reference to Exhibit 4.1 to the Registrants Report on Form 8-K filed
on November 29, 2010). |
|
|
|
4.8
|
|
Second Supplemental Indenture, dated as of November 22, 2010, among the Registrant, the Guarantor parties
thereto and Wells Fargo Bank, N.A., as trustee. (Incorporated by reference to Exhibit 4.2 to the
Registrants Report on Form 8-K filed on November 29, 2010). |
|
|
|
5.1*
|
|
Opinion of DLA Piper LLP (US). |
|
|
|
10.1
|
|
Mobile Mini, Inc. Amended and Restated 1994 Stock Option Plan. (Incorporated by reference to Exhibit 10.3 of
the Registrants Report on Form 10-K for the fiscal year ended December 31, 1997). |
|
|
|
10.2
|
|
Mobile Mini, Inc. Amended and Restated 1999 Stock Option Plan (as amended through March 25, 2003).
(Incorporated by reference to Appendix B of the Registrants Definitive Proxy Statement for its 2003 annual
meeting of shareholders, filed on April 11, 2003 under cover of Schedule 14A). |
|
|
|
10.3
|
|
Form of Stock Option Grant Agreement. (Incorporated by reference to Exhibit 10.2.1 of the Registrants
Report on Form 10-K for the fiscal year ended December 31, 2004). |
|
|
|
10.4
|
|
Mobile Mini, Inc. 2006 Equity Incentive Plan. (Incorporated by reference to Exhibit A of the Registrants
Definitive Proxy Statement for its 2009 annual meeting of shareholders filed on April 30, 2009 under cover
of Schedule 14A). |
|
|
|
10.5
|
|
ABL Credit Agreement, dated June 27, 2008, between Mobile Mini, Deutsche Bank AG New York Branch and other
lenders party thereto. (Incorporated by reference to Exhibit 10.3 to the Registrants Report on Form 8-K
filed on July 1, 2008). |
|
|
|
10.6+
|
|
Schedules to the ABL Credit Agreement, dated June 27, 2008, between Mobile Mini, Deutsch Bank AG New York
Branch and other lenders party thereto. (Incorporated by reference to Exhibit 10.1 of the Registrants
Report on Form 10-Q for the quarter ended September 30, 2010). |
|
|
|
10.7
|
|
First Amendment to ABL Credit Agreement, dated August 31, 2008, between Mobile Mini, certain of its
subsidiaries, Deutsche Bank AG New York Branch and the other lenders party thereto. (Incorporated by
reference to Exhibit 10.1 to the Registrants Report on Form 8-K filed on September 4, 2008). |
69
|
|
|
Exhibit |
|
|
Number |
|
Description |
|
|
|
10.8
|
|
Schedules to the First Amendment to ABL Credit Agreement dated August 31, 2008, between Mobile Mini, certain
of its subsidiaries, Deutsche Bank AG New York Branch and the other lenders party thereto. (Incorporated by
reference to Exhibit 10.2 of the Registrants Report on Form 10-Q for the quarter ended September 30, 2010). |
|
|
|
10.9
|
|
Second Amendment to ABL Credit Agreement, dated August 18, 2010, between Mobile Mini, certain of its
subsidiaries, Deutsche Bank AG New York Branch and the other lenders party thereto. (Incorporated by
reference to Exhibit 10.1 of the Registrants Report on Form 8-K filed on August 20, 2010). |
|
|
|
10.10
|
|
Amended and Restated Employment Agreement dated as of May 28, 2008 by and between Mobile Mini, Inc. and
Steven G. Bunger. (Incorporated by reference to Exhibit 99.1 to the Registrants Report on Form 8-K dated
June 2, 2008). |
|
|
|
10.11
|
|
2009 Amendment to Amended and Restated Employment Agreement effective as of January 1, 2009 by and between
Mobile Mini, Inc. and Steven G. Bunger. (Incorporated by reference to Exhibit 10.8 of the Registrants
Report on Form 10-K for the fiscal year ended December 31, 2009). |
|
|
|
10.12
|
|
Employment Agreement dated September 30, 2008 between Mobile Mini, Inc. and Lawrence Trachtenberg.
(Incorporated by reference to Exhibit 10.1 to the Registrants Report on Form 8-K filed on September 30,
2008). |
|
|
|
10.13
|
|
Employment Agreement dated October 15, 2008 between Mobile Mini, Inc. and Mark E. Funk. (Incorporated by
reference to Exhibit 10.1 to the Registrants Report on Form 8-K filed on October 17, 2008). |
|
|
|
10.14
|
|
2009 Amendment to Amended and Restated Employment Agreement effective as of January 1, 2009 by and between
Mobile Mini, Inc. and Mark E. Funk. (Incorporated by reference to Exhibit 10.11 of the Registrants Report
on Form 10-K for the fiscal year ended December 31, 2009). |
|
|
|
10.15
|
|
Employment Agreement dated as of December 18, 2008 by and between Mobile Mini, Inc. and Jody Miller.
(Incorporated by reference to Exhibit 99.1 to the Registrants Report on Form 8-K filed on December 23,
2008). |
|
|
|
10.16
|
|
2009 Amendment to Amended and Restated Employment Agreement effective as of January 1, 2009 by and between
Mobile Mini, Inc. and Jody Miller. (Incorporated by reference to Exhibit 10.13 of the Registrants Report on
Form 10-K for the fiscal year ended December 31, 2009). |
|
|
|
10.17
|
|
Employment Agreement dated as of December 22, 2009 by and between Mobile Mini, Inc. and Christopher J.
Miner. (Incorporated by reference to Exhibit 99.1 to the Registrants Report on Form 8-K filed on December
24, 2009). |
|
|
|
10.18
|
|
Form of Indemnification Agreement between the Registrant and its Directors and Executive Officers.
(Incorporated by reference to Exhibit 10.20 to the Registrants Report on Form 10-Q for the quarter ended
June 30, 2004). |
|
|
|
10.19
|
|
Escrow Agreement dated as of June 27, 2008, between Mobile Mini, Welsh, Carson, Anderson & Stowe X, L.P. and
Wells Fargo Bank, N.A. (Incorporated by reference to Exhibit 10.1 to the Registrants Report on Form 8-K
filed on July 1, 2008). |
|
|
|
10.20
|
|
Stockholders Agreement dated as of June 27, 2008, between Mobile Mini and the certain stockholders.
(Incorporated by reference to Exhibit 10.2 to the Registrants Report on Form 8-K filed on July 1, 2008). |
|
|
|
10.21
|
|
Registration Rights Agreement, dated as of November 23, 2010, among the Registrant, the Guarantor parties
thereto, and the Initial Purchasers. (Incorporated by reference to Exhibit 4.2 to the Registrants Report on
Form 8-K filed on November 29, 2010). |
|
|
|
12.1*
|
|
Computation of Ratio of Earnings to Fixed Charges. |
|
|
|
21
|
|
Subsidiaries of Mobile Mini, Inc. (Incorporated by reference to Exhibit 21 to the
Registrant's Report on Form 10-K for the fiscal year ended December 31, 2010). |
|
|
|
23.1*
|
|
Consent of Independent Registered Public Accounting Firm. |
|
|
|
23.2*
|
|
Consent of DLA Piper LLP (US). (Included in Exhibit 5.1). |
|
|
|
25.1*
|
|
Statement of Eligibility on Form T-1. |
|
|
|
99.1*
|
|
Form of Letter of Transmittal. |
|
|
|
99.2*
|
|
Form of Notice of Guaranteed Delivery. |
|
|
|
99.3*
|
|
Form of Letter to Clients. |
|
|
|
99.4*
|
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
|
|
|
* |
|
Filed herewith. |
|
+ |
|
Certain confidential information contained in this exhibit was omitted by means of redacting a portion of the text and
replacing it with an asterisk. This exhibit has been filed separately with the Secretary of the SEC without the redaction
pursuant to Confidential Treatment Request under Rule 406 of the Securities Act. |
70