Exhibit 4.1
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RENT-WAY, INC.,
as Issuer
11 7/8% SENIOR SECURED NOTES DUE 2010
INDENTURE
Dated as of June 2, 2003
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE................................... 1
Section 1.1 DEFINITIONS.................................................... 1
Section 1.2 OTHER DEFINITIONS.............................................. 25
Section 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.............. 25
Section 1.4 RULES OF CONSTRUCTION.......................................... 26
ARTICLE 2. THE NOTES.................................................................... 26
Section 2.1 FORM AND DATING................................................ 26
Section 2.2 EXECUTION AND AUTHENTICATION................................... 27
Section 2.3 REGISTRAR AND PAYING AGENT..................................... 27
Section 2.4 PAYING AGENT TO HOLD MONEY IN TRUST............................ 28
Section 2.5 HOLDER LISTS................................................... 28
Section 2.6 TRANSFER AND EXCHANGE.......................................... 28
Section 2.7 REPLACEMENT NOTES.............................................. 38
Section 2.8 OUTSTANDING NOTES.............................................. 38
Section 2.9 TREASURY NOTES................................................. 38
Section 2.10 TEMPORARY NOTES................................................ 39
Section 2.11 CANCELLATION................................................... 39
Section 2.12 DEFAULTED INTEREST............................................. 39
Section 2.13 CUSIP OR ISIN NUMBERS.......................................... 39
Section 2.14 SPECIAL INTEREST............................................... 39
ARTICLE 3. REDEMPTION AND PREPAYMENT.................................................... 40
Section 3.1 NOTICES TO TRUSTEE............................................. 40
Section 3.2 SELECTION OF NOTES TO BE REDEEMED.............................. 40
Section 3.3 NOTICE OF REDEMPTION........................................... 40
Section 3.4 EFFECT OF NOTICE OF REDEMPTION................................. 41
Section 3.5 DEPOSIT OF REDEMPTION PRICE.................................... 41
Section 3.6 NOTES REDEEMED IN PART......................................... 41
Section 3.7 OPTIONAL REDEMPTION............................................ 41
Section 3.8 MANDATORY REDEMPTION........................................... 42
ARTICLE 4. COVENANTS.................................................................... 42
Section 4.1 PAYMENT OF NOTES............................................... 42
Section 4.2 MAINTENANCE OF OFFICE OR AGENCY................................ 43
Section 4.3 REPORTS........................................................ 43
Section 4.4 COMPLIANCE CERTIFICATE......................................... 43
Section 4.5 TAXES.......................................................... 44
Section 4.6 STAY, EXTENSION AND USURY LAWS................................. 44
Section 4.7 CORPORATE EXISTENCE............................................ 44
Section 4.8 INCURRENCE OF DEBT............................................. 44
Section 4.9 RESTRICTED PAYMENTS............................................ 46
Section 4.10 LIENS.......................................................... 48
Section 4.11 ASSET SALES.................................................... 48
Section 4.12 RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED SUBSIDIARIES..... 49
Section 4.13 TRANSACTIONS WITH AFFILIATES................................... 50
Section 4.14 SALE AND LEASEBACK TRANSACTIONS................................ 51
Section 4.15 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES........ 52
Section 4.16 ADDITIONAL COLLATERAL.......................................... 53
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Section 4.17 REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL...... 53
Section 4.18 FUTURE SUBSIDIARY GUARANTORS...................................... 54
Section 4.19 EXCESS CASH FLOW OFFER............................................ 54
Section 4.20 MAINTENANCE OF INSURANCE AND PROPERTIES........................... 57
Section 4.21 LIMITATION ON IMPAIRMENT OF LIEN; FURTHER ASSURANCES.............. 57
ARTICLE 5. SUCCESSORS...................................................................... 57
Section 5.1 MERGER, CONSOLIDATION, OR SALE OF PROPERTY........................ 57
Section 5.2 SUCCESSOR CORPORATION SUBSTITUTED................................. 59
ARTICLE 6. DEFAULTS AND REMEDIES........................................................... 59
Section 6.1 EVENTS OF DEFAULT................................................. 59
Section 6.2 ACCELERATION...................................................... 61
Section 6.3 OTHER REMEDIES.................................................... 61
Section 6.4 WAIVER OF PAST DEFAULTS........................................... 61
Section 6.5 CONTROL BY MAJORITY............................................... 61
Section 6.6 LIMITATION ON SUITS............................................... 62
Section 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.............................. 62
Section 6.8 COLLECTION SUIT BY TRUSTEE........................................ 62
Section 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.................................. 62
Section 6.10 PRIORITIES........................................................ 63
Section 6.11 UNDERTAKING FOR COSTS............................................. 63
ARTICLE 7. TRUSTEE......................................................................... 63
Section 7.1 DUTIES OF TRUSTEE................................................. 63
Section 7.2 RIGHTS OF TRUSTEE................................................. 64
Section 7.3 INDIVIDUAL RIGHTS OF TRUSTEE...................................... 65
Section 7.4 TRUSTEE'S DISCLAIMER.............................................. 65
Section 7.5 NOTICE OF DEFAULTS................................................ 65
Section 7.6 REPORTS BY TRUSTEE TO HOLDERS..................................... 65
Section 7.7 COMPENSATION AND INDEMNITY........................................ 66
Section 7.8 REPLACEMENT OF TRUSTEE............................................ 66
Section 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.................................. 67
Section 7.10 ELIGIBILITY; DISQUALIFICATION..................................... 67
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY................. 67
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE........................................ 68
Section 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.......... 68
Section 8.2 LEGAL DEFEASANCE.................................................. 68
Section 8.3 COVENANT DEFEASANCE............................................... 68
Section 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE........................ 69
Section 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.................................... 70
Section 8.6 REPAYMENT TO COMPANY.............................................. 70
Section 8.7 REINSTATEMENT..................................................... 70
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER................................................ 71
Section 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES............................... 71
Section 9.2 WITH CONSENT OF HOLDERS OF NOTES.................................. 71
Section 9.3 COMPLIANCE WITH TRUST INDENTURE ACT............................... 73
Section 9.4 REVOCATION AND EFFECT OF CONSENTS................................. 73
Section 9.5 NOTATION ON OR EXCHANGE OF NOTES.................................. 73
Section 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC................................... 73
ARTICLE 10. SUBSIDIARY GUARANTIES.......................................................... 74
Section 10.1 SUBSIDIARY GUARANTY............................................... 74
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Section 10.2 LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY....................... 75
Section 10.3 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTY...................... 75
Section 10.4 ADDITIONAL SUBSIDIARY GUARANTORS................................... 76
Section 10.5 RELEASE OF SUBSIDIARY GUARANTOR.................................... 76
ARTICLE 11. COLLATERAL AND SECURITY DOCUMENTS.............................................. 76
Section 11.1 COLLATERAL DOCUMENTS............................................... 76
Section 11.2 POSSESSION, USE AND RELEASE OF COLLATERAL.......................... 77
Section 11.3 DEPOSIT, USE AND RELEASE OF TRUST MONEYS........................... 79
Section 11.4 OPINIONS........................................................... 80
Section 11.5 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS................................................. 80
Section 11.6 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS................................................. 80
Section 11.7 RELEASE UPON TERMINATION OF THE COMPANY'S OBLIGATIONS.............. 80
ARTICLE 12. SATISFACTION AND DISCHARGE..................................................... 81
Section 12.1 SATISFACTION AND DISCHARGE......................................... 81
Section 12.2 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS..................................... 82
Section 12.3 REPAYMENT TO COMPANY............................................... 82
ARTICLE 13. MISCELLANEOUS.................................................................. 82
Section 13.1 TRUST INDENTURE ACT CONTROLS....................................... 82
Section 13.2 NOTICES............................................................ 82
Section 13.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES...... 83
Section 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT................. 83
Section 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION...................... 84
Section 13.6 RULES BY TRUSTEE AND AGENTS........................................ 84
Section 13.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS....................................................... 84
Section 13.8 GOVERNING LAW...................................................... 84
Section 13.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS...................... 84
Section 13.10 SUCCESSORS......................................................... 84
Section 13.11 SEVERABILITY....................................................... 84
Section 13.12 COUNTERPART ORIGINALS.............................................. 85
Section 13.13 TABLE OF CONTENTS, HEADINGS, ETC................................... 85
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Certificate From Acquiring Institutional Accredited Investor
Exhibit E Form of Notation of Guarantee
Exhibit F Form of Supplemental Indenture
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This INDENTURE dated as of June 2, 2003, is by and among Rent-Way,
Inc., a Pennsylvania corporation (the "Company"), the Subsidiary Guarantors (as
defined) parties hereto, and Manufacturers and Traders Trust Company, as trustee
(the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders (as defined) of the 11 7/8% Senior Secured Notes due 2010 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
"144A Global Note" means the global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold in reliance on Rule 144A.
"Acquired Debt" means Debt of a Person outstanding on the date on which
such Person becomes a Restricted Subsidiary or assumed in connection with the
acquisition of assets from such Person.
"Additional Assets" means:
(a) any Property (other than cash, Cash Equivalents and
securities) to be owned by the Company or any Restricted
Subsidiary and used in a Related Business; or
(b) Capital Stock of a Person that becomes a Restricted Subsidiary
as a result of the acquisition of such Capital Stock by the
Company or another Restricted Subsidiary from any Person other
than the Company or an Affiliate of the Company; provided,
however, that, in the case of clause (b), such Restricted
Subsidiary is primarily engaged in a Related Business.
"Additional Notes" means any Notes (other than Offered Notes and
Exchange Notes) issued under this Indenture in accordance with Section 2.2 and
Section 4.8, as part of the same series as the Offered Notes or as an additional
series.
"Affiliate" of any specified Person means:
(a) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person, or
(b) any other Person who is a director or officer of:
(1) such specified Person,
(2) any Subsidiary of such specified Person, or
(3) any Person described in clause (a) above.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing. For purposes of Section 4.11 and Section
4.13 and the definition of "Additional Assets" only, "Affiliate" shall also
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mean any beneficial owner of shares representing 5% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of rights
or warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence of this definition.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Procedures" means, with respect to any transfer, redemption
or exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer, redemption or exchange.
"Asset Sale" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of
(a) any shares of Capital Stock of a Restricted Subsidiary (other
than directors' qualifying shares), or
(b) any Property (including, without limitation, the capital stock
of dPi) of the Company or any Restricted Subsidiary outside of
the ordinary course of business of the Company or such
Restricted Subsidiary,
other than, in the case of clause (a) or (b) above,
(1) any disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary
to a Wholly Owned Restricted Subsidiary,
(2) any disposition that constitutes a Permitted
Investment or Restricted Payment permitted by Section
4.9,
(3) any disposition effected in compliance with Section
5.1(a),
(4) any disposition or series of related dispositions of
Property with an aggregate Fair Market Value, and for
net proceeds, of less than $1.0 million, and
(5) any disposition of cash or Cash Equivalents.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at any date of determination,
(a) if such Sale and Leaseback Transaction is a Capital Lease
Obligation, the amount of Debt represented thereby according
to the definition of "Capital Lease Obligations," and
(b) in all other instances the present value (discounted at the
interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such
lease has been extended).
"Average Life" means, as of any date of determination, with respect to
any Debt or Preferred Stock. the quotient obtained by dividing:
(a) the sum of the product of the numbers of years (rounded to the
nearest one-twelfth of one year) from the date of
determination to the dates of each successive scheduled
principal payment of such Debt or redemption or similar
payment with respect to such Preferred Stock multiplied by the
amount of such payment by
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(b) the sum of all such payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the applicable Person to have been duly
adopted by the board of directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Expenditures" means the amount of any expenditures in respect
of fixed or capital assets.
"Capital Lease Obligations" means any obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP; and the amount of Debt represented by such obligation shall be the
capitalized amount of such obligations determined in accordance with GAAP; and
the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty. For purposes of
Section 4.10, a Capital Lease Obligation shall be deemed secured by a Lien on
the Property being leased.
"Capital Stock" means, with respect to any Person, any shares or other
equivalents (however designated) of any class of corporate stock or partnership
interests or any other participations, rights, warrants, options or other
interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash proceeds
received by the Company from the issuance or sale (other than to a Subsidiary of
the Company or an employee stock ownership plan or trust established by the
Company or any such Subsidiary for the benefit of their employees) by the
Company of its Capital Stock (other than Disqualified Stock) after the Issue
Date, net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Cash Equivalents" means:
(a) securities issued or directly and fully guaranteed or insured
by the United States Government or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof),
having maturities of not more than one year from the date of
acquisition;
(b) marketable general 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 (provided
that the full faith and credit of such state is pledged in
support thereof) and, at the time of acquisition thereof,
having one of the two highest credit ratings obtainable from
both S&P's and Xxxxx'x;
(c) certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits or bankers' acceptances
having maturities of not more than one year from the date of
acquisition thereof issued by any commercial bank organized in
the United States of America, the long-term debt of which is
rated at the time of acquisition thereof in one of the two
highest categories obtainable from both S&P's and Xxxxx'x, and
having combined capital and surplus in excess of $500.0
million;
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(d) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause
(a), (b) and (c) entered into with any bank meeting the
qualifications specified in clause (c) above;
(e) commercial paper rated at the time of acquisition thereof in
one of the two highest categories obtainable from both S&P's
and Xxxxx'x or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating
agencies cease publishing ratings of investments, and in any
case maturing within one year after the date of acquisition
thereof; and
(f) interests in any investment company or money market fund which
invests at least 95% of its assets in instruments of the type
specified in clauses (a) through (e) above.
"Cash Management Services Obligations" means all obligations incurred
by the Company with respect to cash management services incurred in the ordinary
course of business as contemplated by the Revolving Credit Facility.
"Change of Control" means the occurrence of any of the following
events:
(a) if any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the foregoing), including any group
acting for the purpose of acquiring, holding, voting or
disposing of securities within the meaning of Rule 13d-5(b)(l)
under the Exchange Act, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act, except that a
person will be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the
passage of time), directly or indirectly, of a majority of the
total voting power of the Voting Stock of the Company (for
purposes of this clause (a), such person or group shall be
deemed to beneficially own any Voting Stock of a corporation
held by any other corporation (the "parent corporation") so
long as such person or group beneficially owns, directly or
indirectly, in the aggregate a majority of the total voting
power of the Voting Stock of such parent corporation); or
(b) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially
all the assets of the Company and the Restricted Subsidiaries,
considered as a whole (other than a disposition of such
Property as an entirety or virtually as an entirety to a
Wholly Owned Restricted Subsidiary) shall have occurred, or
the Company merges, consolidates or amalgamates with into any
other Person or any other Person merges, consolidates or
amalgamates with or into the Company, in any such event
pursuant to a transaction in which the outstanding Voting
Stock of the Company is reclassified into or exchanged for
cash, securities or other Property, other than any such
transaction where:
(1) the outstanding Voting Stock of the Company is
reclassified into or exchanged for other Voting Stock
of the Company or for Voting Stock of the Surviving
Person, and
(2) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly
or indirectly, not less than a majority of the Voting
Stock of the Company or the Surviving Person
immediately after such transaction and in
substantially the same proportion as before the
transaction; or
(c) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of
Directors (together with any new directors whose election or
appointment by such Board or whose nomination for election by
the shareholders of the Company was approved by a vote of not
less than three-fourths of the directors then still in office
who were either directors at the beginning of such period or
whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the
Board of Directors then in office; or
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(d) the shareholders of the Company shall have approved any plan
of liquidation or dissolution of the Company.
"Clearstream" means Clearstream Banking S.A. and any successor thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" means the Trustee acting as agent for the Holders
under the Intercreditor Agreement and Security Documents.
"Commission" means the U.S. Securities and Exchange Commission.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of the Notes being redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes being redeemed.
"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
Reference Treasury Dealer Quotation for such redemption date.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of:
(a) the aggregate amount of EBITDA for the most recent four
consecutive fiscal quarters ending at least 45 days prior to
such determination date to
(b) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that:
(1) if
(A) since the beginning of such period the
Company or any Restricted Subsidiary has
Incurred any Debt that remains outstanding
or Repaid any Debt, or
(B) the transaction giving rise to the need to
calculate the Consolidated Interest Coverage
Ratio is an Incurrence or Repayment of Debt,
then Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such
Incurrence or Repayment as if such Debt was Incurred or Repaid
on the first day of such period, provided that, in the event
of any such Repayment of Debt, EBITDA for such period shall be
calculated as if the Company or such Restricted Subsidiary had
not earned any interest income actually earned during such
period in respect of the funds used to Repay such Debt, and
(2) if
(A) since the beginning of such period the
Company or any Restricted Subsidiary shall
have made any Asset Sale or an Investment
(by merger or otherwise) in
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any Restricted Subsidiary (or any Person
which becomes a Restricted Subsidiary) or an
acquisition of Property which constitutes
all or substantially all of an operating
unit of a business,
(B) the transaction giving rise to the need to
calculate the Consolidated Interest Coverage
Ratio is such an Asset Sale, Investment or
acquisition, or
(C) since the beginning of such period any
Person (that subsequently became a
Restricted Subsidiary or was merged with or
into the Company or any Restricted
Subsidiary since the beginning of such
period) shall have made such an Asset Sale,
Investment or acquisition,
then EBITDA for such period shall be calculated after giving
pro forma effect to such Asset Sale, Investment or acquisition
as if such Asset Sale, Investment or acquisition occurred on
the first day of such period.
If any Debt bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Debt shall be calculated as if the base
interest rate in effect for such floating rate of interest on the date of
determination had been the applicable base interest rate for the entire period
(taking into account any Interest Rate Agreement applicable to such Debt if such
Interest Rate Agreement has a remaining term in excess of 12 months). In the
event the Capital Stock of any Restricted Subsidiary is sold during the period,
the Company shall be deemed, for purposes of clause (1) above, to have Repaid
during such period the Debt of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer liable for such
Debt after such sale.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent Incurred by the Company or its Restricted Subsidiaries,
(a) interest expense attributable to leases constituting part of a
Sale and Leaseback Transaction and to Capital Lease
Obligations,
(b) amortization of debt discount and debt issuance cost,
including commitment fees,
(c) capitalized interest,
(d) non-cash interest expense,
(e) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance
financing,
(f) net costs associated with Hedging Obligations (including
amortization of fees),
(g) Disqualified Stock Dividends,
(h) Preferred Stock Dividends,
(i) interest accruing on any Debt of any other Person to the
extent such Debt is Guaranteed by the Company or any
Restricted Subsidiary, and
(j) cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person
(other than the Company) in connection with Debt Incurred by
such plan or trust.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its consolidated Subsidiaries; provided, however, that there
shall not be included in such Consolidated Net Income:
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(a) any net income (loss) of any Person (other than the Company)
if such Person is not a Restricted Subsidiary, except that:
(1) subject to the exclusion contained in clause (d)
below, the Company's and its consolidated
Subsidiaries' equity in the net income of any such
Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of
cash distributed by such Person during such period to
the Company or a Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a
dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause
(c) below), and
(2) the Company's and its consolidated Subsidiaries'
equity in a net loss of any such Person other than an
Unrestricted Subsidiary for such period shall be
included in determining such Consolidated Net Income,
(b) for purposes of Section 4.9 only, any net income (loss) of any
Person acquired by the Company or any of its consolidated
Subsidiaries in a pooling of interests transaction for any
period prior to the date of such acquisition,
(c) any net income (loss) of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of
distributions, directly or indirectly, to the Company, except
that:
(1) subject to the exclusion contained in clause (d)
below, the Company's and its consolidated
Subsidiaries' equity in the net income of any such
Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the
greater of (I) the aggregate amount of cash actually
distributed by such Restricted Subsidiary during such
period to the Company or another Restricted
Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other
distribution to another Restricted Subsidiary, to the
limitation contained in this clause (c)) and (II) the
aggregate amount of cash that could have been
distributed by such Restricted Subsidiary during such
period to the Company or another Restricted
Subsidiary as a dividend or other distribution
without prior approval (that has not been obtained)
pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its
stockholders (subject, in the case of a dividend or
other distribution to another Restricted Subsidiary,
to the limitation contained in this clause (c)), and
(2) the Company's and its consolidated Subsidiaries'
equity in a net loss of any such Restricted
Subsidiary for such period shall be included in
determining such Consolidated Net Income,
(d) any gain (but not loss) realized upon the sale or other
disposition of any Property of the Company or any of its
consolidated Subsidiaries (including pursuant to any Sale and
Leaseback Transaction) that is not sold or otherwise disposed
of in the ordinary course of business,
(e) any extraordinary gain or loss,
(f) the cumulative effect of a change in accounting principles and
(g) any non-cash compensation expense realized for grants of
performance shares, stock options or other rights to officers,
directors and employees of the Company or any Restricted
Subsidiary, provided that such shares, options or other rights
can be redeemed at the option of the holder only for Capital
Stock of the Company (other than Disqualified Stock).
7
Notwithstanding the foregoing, for purposes of Section 4.9 only, there
shall be excluded from Consolidated Net Income any dividends, repayments of
loans or advances or other transfers of assets from Unrestricted Subsidiaries to
the Company or a Restricted Subsidiary to the extent such dividends, repayments
or transfers increase the amount of Restricted Payments permitted under Section
4.9 pursuant to clause (a)(iii)(4) thereof.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.2 or such other address as to which the Trustee
may give notice to the Company.
"Currency Exchange Protection Agreement" means, in respect of a Person,
any foreign exchange contract, currency swap agreement, currency option or other
similar agreement or arrangement designed to protect such Person against
fluctuations in currency exchange rates.
"Custodian" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 as
Custodian with respect to the Notes, any and all successors thereto appointed as
custodian hereunder and having become such pursuant to the applicable provisions
of this Indenture.
"Debt" means, with respect to any Person on any date of determination
(without duplication):
(a) the principal of and premium (if any) in respect of:
(1) debt of such Person for money borrowed, and
(2) debt evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such
Person is responsible or liable;
(b) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale and Leaseback
Transactions entered into by such Person;
(c) all obligations of such Person issued or assumed as the
deferred purchase price of Property, all conditional sale
obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business);
(d) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than
obligations described in (a) through (c) above) entered into
in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to
the extent drawn upon, such drawing is reimbursed no later
than the third Business Day following receipt by such Person
of a demand for reimbursement following payment on the letter
of credit);
(e) the amount of all obligations of such Person with respect to
the Repayment of any Disqualified Stock or, with respect to
any Subsidiary of such Person, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(f) all obligations of the type referred to in clauses (a) through
(e) above of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee;
(g) all obligations of the type referred to in clauses (a) through
(f) of other Persons secured by any Lien on any Property of
such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the
lesser of the Fair Market Value of such Property or the amount
of the obligation so secured; and
8
(h) to the extent not otherwise included in this definition,
Hedging Obligations and Cash Management Services Obligations
of such Person.
The amount of Debt of any Person at any date shall be (x) the
outstanding balance at such date of all unconditional obligations as described
above and (y) the maximum liability, upon the occurrence of the contingency
giving rise to the obligation, of any contingent obligations at such date. The
amount of Debt represented by a Hedging Obligation shall be equal to:
(1) zero if such Hedging Obligation has been Incurred pursuant to
Section 4.8(b)(v), or
(2) the notional amount of such Hedging Obligation if not Incurred
pursuant to Section 4.8(b)(v).
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.6, in substantially
the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable, in either case at the option of the
holder thereof) or otherwise:
(a) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the option of
the holder thereof, in whole or in part, or
(c) is convertible or exchangeable at the option of the holder
thereof for Debt or Disqualified Stock,
on or prior to, in the case of clause (a), (b) or (c), the first
anniversary of the Stated Maturity of the Notes.
"Disqualified Stock Dividends" means all dividends with respect to
Disqualified Stock of the Company held by Persons other than a Wholly Owned
Restricted Subsidiary. The amount of any such dividend shall be equal to the
quotient of such dividend divided by the difference between one and the maximum
statutory federal income tax rate (expressed as a decimal number between 1 and
0) then applicable to the Company.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary other
than (a) a Foreign Restricted Subsidiary or (b) a Subsidiary of a Foreign
Restricted Subsidiary.
"dPi" means dPi Teleconnect, L.L.C., a Delaware limited liability
company and the Company's 70% owned subsidiary.
"EBITDA" means, for any period, an amount equal to, for the Company and
its consolidated Restricted Subsidiaries:
9
(a) the sum of Consolidated Net Income for such period, plus the
following to the extent reducing Consolidated Net Income for
such period:
(1) the provision for taxes based on income or profits or
utilized in computing net loss,
(2) Consolidated Interest Expense,
(3) depreciation expense, other than depreciation expense
relating to rental merchandise,
(4) amortization of intangibles, and
(5) any other non-cash items (other than any such
non-cash item to the extent that it represents an
accrual of or reserve for cash expenditures in any
future period), minus
(b) all non-cash items increasing Consolidated Net Income for such
period (other than any such non-cash item to the extent that
it will result in the receipt of cash payments in any future
period).
Notwithstanding the foregoing clause (a), the provision for taxes and
the depreciation, amortization and non-cash items of a Restricted Subsidiary
shall be added to Consolidated Net Income to compute EBITDA only to the extent
(and in the same proportion) that the net income of such Restricted Subsidiary
was included in calculating Consolidated Net Income.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, and any successor thereto.
"Event of Default" has the meaning set forth under Section 6.1.
"Excess Cash Flow" means, for any fiscal year, EBITDA for the Company
and its consolidated Restricted Subsidiaries for such year, minus each of the
following:
(a) to the extent reducing Consolidated Net Income for such year,
the provision for taxes paid in cash based on income or
profits or utilized in computing net loss;
(b) to the extent reducing Consolidated Net Income for such year,
Consolidated Interest Expense paid in cash;
(c) any increase in Working Capital from the last day of the
fiscal year preceding such year to the last day of such year;
(d) amounts paid to purchase property, plant or equipment by the
Company and its Restricted Subsidiaries during such year,
provided that any such amounts in excess of over $20.0 million
shall not be deducted in determining Excess Cash Flow;
(e) all cash amounts paid during such year by the Company or the
Subsidiary Guarantors under any leases identified in Section
1.2(f) of the Asset Purchase Agreement dated December 17,
2002, among the Company, Rent-Way of Michigan, Inc., Rent-Way
of TTIG; L.P. and Rent-A-Center, Inc;
(f) all cash amounts paid during such year by the Company or any
of the Subsidiary Guarantors at trial, upon appeal or in
settlement of the securities and class action lawsuits and
investigations by governmental authorities pending against the
Company on the Issue Date; and
(g) any reduction in the principal amount of Debt outstanding
under the Revolving Credit Facility from the last day of the
fiscal year preceding such year to the last day of such year;
10
plus each of the following:
(x) all holdback amounts paid to the Company during such
year pursuant to Section 8.4(b) of the Asset Purchase
Agreement dated December 17, 2002, among the Company,
Rent-Way of Michigan, Inc., Rent-Way of TTIG, L.P.
and Rent-A-Center, Inc.; and
(y) any decrease in Working Capital from the last day of
the fiscal year preceding such year to the last day
of such year.
"Excess Cash Flow Collateral Account Agreement" means the agreement
among the Company, the Trustee and the other securities intermediary and, if
applicable, the Senior Collateral Agent relating to the Excess Cash Flow
Collateral Account.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the new notes of the Company issued in a
registered offer made pursuant to the Registration Rights Agreement and a
registration statement filed with, and declared effective by, the Commission
offering to exchange such new notes for the Notes or the Additional Notes, as
the case may be, provided, that such new notes have terms substantially
identical in all material respects to the Notes and the Additional Notes (except
that Exchange Notes will not contain terms with respect to transfer
restrictions) for which such offer is being made.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Fair Market Value" means, with respect to any Property, the price that
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value shall be
determined in good faith, (a) if such Property has a fair market value equal to
or less than $1.0 million, by any Officer of the Company, or (b) if such
Property has a fair market value in excess of $1.0 million, by the Board of
Directors.
"First Priority Liens" means all Liens that secure the Debt and other
obligations under the Revolving Credit Facility, Debt under existing Interest
Rate Agreements, Interest Rate Agreements extended by the lenders under the
Revolving Credit Facility, and Debt under Cash Management Services Obligations.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary which
is not organized under the laws of the United States of America or any State
thereof or the District of Columbia.
"GAAP" means United States generally accepted accounting principles as
in effect on the Issue Date, including those set forth:
(a) in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants,
(b) in the statements and pronouncements of the Financial
Accounting Standards Board,
(c) in such other statements by such other entity as approved by a
significant segment of the accounting profession, and
(d) in the rules and regulations of the Commission governing the
inclusion of financial statements (including pro forma
financial statements) in periodic reports required to be filed
pursuant to Section 13 of the Exchange Act, including opinions
and pronouncements in staff accounting bulletins and similar
written statements from the accounting staff of the
Commission.
"Global Note Legend" means the legend set forth in Section 2.6(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
11
"Global Notes" means the global Notes in the form of Exhibit A hereto
issued in accordance with Article 2.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt of such other Person
(whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities
or services, to take-or-pay or to maintain financial statement
conditions or otherwise), or
(b) entered into for the purpose of assuring in any other manner
the obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include:
(1) endorsements for collection or deposit in the
ordinary course of business, or
(2) a contractual commitment by one Person to invest in
another Person for so long as such Investment is
reasonably expected to constitute a Permitted
Investment under clauses (a), (b) or (c) of the
definition of "Permitted Investment."
The term "Guarantee" used as a verb has a corresponding meaning. The
term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligation" of any Person means any obligation of such Person
pursuant to any Interest Rate Agreement, Currency Exchange Protection Agreement
or any, other similar agreement or arrangement.
"Holder" means a Person in whose name a Note is registered in the
Security Register.
"IAI Global Note" means the global Note in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited
with and registered in the name of the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of the Notes
sold to Institutional Accredited Investors, if any.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by merger, conversion, exchange or otherwise),
extend, assume, Guarantee or become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or obligation on the balance sheet of such Person (and "Incurrence"
and "Incurred" shall have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time, and is not theretofore classified as Debt, becoming Debt
shall not be deemed an Incurrence of such Debt; provided further, however, that
any Debt or other obligations of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary.
"Indenture" means this instrument, as originally executed or as it may
from time to time be supplemented or amended in accordance with Article 9.
"Independent Financial Advisor" means an investment banking firm of
national standing or any third party appraiser of national standing, provided
that such firm or appraiser is not an Affiliate of the Company.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Purchaser" means Citigroup Global Markets Inc. as the initial
purchaser of the Notes.
12
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Intercreditor Agreement" means the intercreditor agreement among the
Company, Xxxxxx Trust and Savings Bank, as agent for the lenders under the
Revolving Credit Facility, and the Trustee as Collateral Agent for the Holders
of the Notes, dated the Issue Date, as the same may be amended, modified,
restated, supplemented or replaced from time to time.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect against fluctuations in interest rates.
"Investment" by any Person means any direct or indirect loan (other
than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of such Person), advance or other
extension of credit or capital contribution (by means of transfers of cash or
other Property to others or payments for Property or services for the account or
use of others, or otherwise) to, or Incurrence of a Guarantee of any obligation
of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Debt issued by, any other Person. For purposes
of the covenants described under Section 4.9 and Section 4.15 and the definition
of "Restricted Payment," the term "Investment" shall include the portion
(proportionate to the Company's equity interest in such Subsidiary) of the Fair
Market Value of the net assets of any Restricted Subsidiary of the Company at
the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary of an amount (if positive) equal to:
(a) the Company's "Investment" in such Subsidiary at the time of
such redesignation, less
(b) the portion (proportionate to the Company's equity interest in
such Subsidiary) of the Fair Market Value of the net assets of
such Subsidiary at the time of such redesignation.
In determining the amount of any Investment made by transfer of any Property
other than cash, such Property shall be valued at its Fair Market Value at the
time of such Investment. Notwithstanding the foregoing, the term "Investment"
shall not include leases by the Company or its Restricted Subsidiaries of
merchandise or inventory to their customers in the ordinary course of their
rental-purchase business.
"Issue Date" means the date on which the Notes are initially issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the Corporate Trust
Office of the Trustee is located, or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Offered Notes for use by such
Holders in connection with a Registered Exchange Offer.
"Leverage Ratio" means the ratio of (a) the aggregate outstanding
amount of Debt of the Company and its Restricted Subsidiaries as of the last day
of the fiscal year of the Company to (b) EBITDA for the full fiscal year ending
on such date; provided, however, that:
(1) if
(A) since the beginning of such year the Company or any
Restricted Subsidiary has Incurred any Debt that remains outstanding or
Repaid any Debt, or
13
(B) the transaction giving rise to the need to calculate
the Leverage Ratio is an Incurrence or Repayment of Debt,
then Consolidated Interest Expense for such year shall be calculated
after giving effect on a pro forma basis to such Incurrence or
Repayment as if such Debt was Incurred or Repaid on the first day of
such year, provided that, in the event of any such Repayment of Debt,
EBITDA for such year shall be calculated as if the Company or such
Restricted Subsidiary had not earned any interest income actually
earned during such year in respect of the funds used to Repay such
Debt, and
(2) if
(A) since the beginning of such year the Company or any
Restricted Subsidiary shall have made any Asset Sale or an Investment
(by merger or otherwise) in any Restricted Subsidiary (or any Person
which becomes a Restricted Subsidiary) or an acquisition of Property
which constitutes all or substantially all of an operating unit of a
business,
(B) the transaction giving rise to the need to calculate
the Leverage Ratio is such an Asset Sale, Investment or acquisition, or
(C) since the beginning of such year any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
year) shall have made such an Asset Sale, Investment or acquisition,
then EBITDA for such year shall be calculated after giving pro forma
effect to such Asset Sale, Investment or acquisition as if such Asset
Sale, Investment or acquisition occurred on the first day of such year.
If any Debt bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Debt shall be calculated as if the base
interest rate in effect for such floating rate of interest on the date of
determination had been the applicable base interest rate for the entire year
(taking into account any Interest Rate Agreement applicable to such Debt if such
Interest Rate Agreement has a remaining term in excess of 12 months). In the
event the Capital Stock of any Restricted Subsidiary is sold during the year,
the Company shall be deemed, for purposes of clause (1) above, to have Repaid
during such year the Debt of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer liable for such
Debt after such sale.
"Lien" means, with respect to any Property of any Person, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement (other than any easement not
materially impairing usefulness or marketability) encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to the
rating agency business thereof.
"Mortgage" means that certain Open-End Mortgage and Security Agreement
with Assignment of Rents from the Company to the Trustee that grants a Lien on
the Company's headquarters, land and improvements in Erie, Pennsylvania.
"Net Available Cash" from any Asset Sale means cash payments received
therefrom (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Debt or other obligations relating to the
Property that is the subject of such Asset Sale or received in any other
non-cash form), in each case net of:
14
(a) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all federal, state,
provincial, foreign and local taxes required to be accrued as
a liability under GAAP, as a consequence of such Asset Sale,
(b) all payments made on any Debt that is secured by any Property
subject to such Asset Sale, in accordance with the terms of
any Lien upon or other security agreement of any kind with
respect to such Property, or which must by its terms, or in
order to obtain a necessary consent to such Asset Sale, or by
applicable law, be repaid out of the proceeds from such Asset
Sale,
(c) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as
a result of such Asset Sale, and
(d) the deduction of appropriate amounts provided by the seller as
a reserve, in accordance with GAAP, against any liabilities
associated with the Property disposed of in such Asset Sale
and retained by the Company or any Restricted Subsidiary after
such Asset Sale.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"Offered Notes" means $205,000,000 in aggregate principal amount of
Notes issued under this Indenture on the date hereof.
"Officer" means the Chief Executive Officer, the President, the Chief
Financial Officer or any Executive Vice President of the Company.
"Officers' Certificate" means a certificate, in form and substance
reasonably satisfactory to the Trustee, signed by two Officers of the Company,
at least one of whom shall be the principal executive officer or principal
financial officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and substance
reasonably satisfactory to the Trustee, from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of or counsel to the Company or the
Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream.
"Permitted Asset Swap" means any transfer of Property by the Company or
any of its Restricted Subsidiaries in which at least 90% of the consideration
received by the transferor consists of Property (other than cash) that will be
used in a Related Business; provided that the aggregate Fair Market Value of the
Property being transferred by the Company or such Restricted Subsidiary is not
greater than the aggregate Fair Market Value of the Property received by the
Company or such Restricted Subsidiary in such exchange; and provided, further,
that, with respect to any transaction or series of related transactions that
constitutes a Permitted Asset Swap with an aggregate Fair Market Value in excess
of $10.0 million, the Company, prior to consummation thereof, shall be required
to obtain a written opinion from an Independent Financial Advisor to the effect
that such transaction or series of related transactions is fair, from a
financial point of view, to the Company and Restricted Subsidiaries, taken as a
whole.
"Permitted Investment" means any Investment by the Company or a
Restricted Subsidiary in:
(a) the Company or any Restricted Subsidiary;
(b) any Person that will, upon the making of such Investment,
become a Restricted Subsidiary, provided that the primary
business of such Restricted Subsidiary is a Related Business;
15
(c) any Person if as a result of such Investment such Person is
merged or consolidated with or into, or transfers or conveys
all or substantially all its Property to, the Company or a
Restricted Subsidiary, provided that such Person's primary
business is a Related Business;
(d) cash or Cash Equivalents;
(e) receivables owing to the Company or a Restricted Subsidiary,
if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade
terms; provided, however, that such trade terms may include
such concessionary trade terms as the Company or such
Restricted Subsidiary deems reasonable under the
circumstances;
(f) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated
as expenses for accounting purposes and that are made in the
ordinary course of business;
(g) loans and advances to employees made in the ordinary course of
business consistent with past practices of the Company or such
Restricted Subsidiary, as the case may be, provided that such
loans and advances do not exceed $1.0 million at any one time
outstanding;
(h) stock, obligations or other securities received in settlement
of debts created in the ordinary course of business and owing
to the Company or a Restricted Subsidiary or in satisfaction
of judgments; and
(i) any Person to the extent such Investment represents the
non-cash portion of the consideration received in connection
with an Asset Sale consummated in compliance with Section
4.11; and
shall also include other Investments made for Fair Market Value that do not
exceed $20.0 million outstanding at any one time in the aggregate.
"Permitted Liens" means:
(a) Liens to secure Debt permitted to be Incurred under Section
4.8(b)(i), Section 4.8(b)(ii) and Section 4.8(b)(v) to the
extent contemplated by the Revolving Credit Facility;
(b) Liens to secure Debt permitted to be Incurred under Section
4.8(b)(iii), provided that any such Lien may not extend to any
Property of the Company or any Restricted Subsidiary, other
than the Property acquired, constructed or leased with the
proceeds of such Debt and any improvements or accessions to
such Property;
(c) Liens for taxes, assessments or governmental charges or levies
on the Property of the Company or any Restricted Subsidiary if
the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith
and by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other
appropriate provision that shall be required in conformity
with GAAP shall have been made therefor,
(d) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens, on the Property of
the Company or any Restricted Subsidiary arising in the
ordinary course of business and securing payment of
obligations that are not more than 60 days past due or are
being contested in good faith and by appropriate proceedings,
(e) Liens on the Property of the Company or any Restricted
Subsidiary Incurred in the ordinary course of business to
secure performance of obligations with respect to statutory or
regulatory requirements, performance or return-of-money bonds,
surety bonds or other obligations of a like nature and
Incurred in a manner consistent with industry practice, in
each case which are not Incurred in connection with the
borrowing of money, the obtaining of advances or credit or the
16
payment of the deferred purchase price of Property and which
do not in the aggregate impair in any material respect the use
of Property in the operation of the business of the Company
and the Restricted Subsidiaries taken as a whole;
(f) Liens on Property at the time the Company or any Restricted
Subsidiary acquired such Property, including any acquisition
by means of a merger or consolidation with or into the Company
or any Restricted Subsidiary, provided, however, that any such
Lien may not extend to any other Property of the Company or
any Restricted Subsidiary; provided further, however, that
such Liens shall not have been Incurred in anticipation of or
in connection with the transaction or series of transactions
pursuant to which such Property was acquired by the Company or
any Restricted Subsidiary
(g) Liens on the Property of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that any
such Lien may not extend to any other Property of the Company
or any other Restricted Subsidiary that is not a direct
Subsidiary of such Person; provided further, however, that any
such Lien was not Incurred in anticipation of or in connection
with the transaction or series of transactions pursuant to
which such Person became a Restricted Subsidiary;
(h) pledges or deposits by the Company or any Restricted
Subsidiary under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits
in connection with bids, tenders, contracts (other than for
the payment of Debt) or leases to which the Company or any
Restricted Subsidiary is party, or deposits to secure public
or statutory obligations of the Company, or deposits for the
payment of rent, in each case Incurred in the ordinary course
of business;
(i) utility easements, building restrictions and such other
encumbrances or charges against real Property as are of a
nature generally existing with respect to properties of a
similar character;
(j) Liens existing on the Issue Date not otherwise described in
clauses (a) through (i) above;
(k) Liens not otherwise described in clauses (a) through (j) above
on the Property of any Restricted Subsidiary to secure any
Debt permitted to be Incurred by such Restricted Subsidiary
pursuant to Section 4.8;
(1) Liens on the Property of the Company or any Restricted
Subsidiary to secure any Refinancing, in whole or in part, of
any Debt secured by Liens referred to in clause (b), (f), (g),
(j) or (k) above; provided, however, that any such Lien shall
be limited to all or part of the same Property that secured
the original Lien (together with improvements and accessions
to such Property) and the aggregate principal amount of Debt
that is secured by such Lien shall not be increased to an
amount greater than the sum of:
(1) the outstanding principal amount, or, if greater, the
committed amount, of the Debt secured by Liens
described under clause (b), (f), (g), (j) or (k)
above, as the case may be, at the time the original
Lien became a Permitted Lien under the Indenture, and
(2) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, incurred by
the Company or such Restricted Subsidiary in
connection with such Refinancing; and
(m) Liens to secure Debt under the Revolving Credit Facility that
is incurred under clause (ix) of the definition of "Permitted
Debt" in Section 4.8(b); and
(n) Liens not otherwise permitted by clauses (a) through (m) above
encumbering assets having an aggregate Fair Market Value not
in excess of, in the aggregate, the remainder of (i) $15.0
million less (ii) the principal amount of Debt described in
the preceding clause (m).
17
"Permitted Refinancing Debt" means any Debt that Refinances any other
Debt, including any successive Refinancings, so long as:
(a) such Debt is in an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) not in
excess of the sum of:
(1) the aggregate principal amount (or if Incurred with
original issue discount, the aggregate accreted
value) then outstanding of the Debt being Refinanced,
and
(2) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, related to
such Refinancing,
(b) the Average Life of such Debt is equal to or greater than the
Average Life of the Debt being Refinanced,
(c) the Stated Maturity of such Debt is no earlier than the Stated
Maturity of the Debt being Refinanced, and
(d) the new Debt shall not be senior in right of payment to the
Debt that is being Refinanced; provided, however, that
Permitted Refinancing Debt shall not include:
(x) Debt of a Subsidiary that is not a Subsidiary
Guarantor that Refinances Debt of the Company or a
Subsidiary Guarantor, or
(y) Debt of the Company or a Restricted Subsidiary that
Refinances Debt of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including any
limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"Preferred Stock Dividends" means all dividends (other than dividends
paid in Capital Stock that is not Disqualified Stock) with respect to Preferred
Stock of Restricted Subsidiaries held by Persons other than the Company or a
Wholly Owned Restricted Subsidiary. The amount of any such dividend shall be
equal to the quotient of such dividend divided by the difference between one and
the maximum statutory federal income rate (expressed as a decimal number between
1 and 0) then applicable to the issuer of such Preferred Stock.
"Private Placement Legend" means the legend set forth in Section
2.6(g)(i) to be placed on all Notes issued under this Indenture except as
otherwise permitted by the provisions of this Indenture.
"pro forma" means, with respect to any calculation made or required to
be made pursuant to the terms of this Indenture, a calculation performed in
accordance with Article 11 of Regulation S-X promulgated under the Securities
Act, as interpreted in good faith by the Board of Directors after consultation
with the independent certified public accountants of the Company, or otherwise a
calculation made in good faith by the Board of Directors after consultation with
the independent certified public accountants of the Company, as the case may be.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person.
18
"Public Equity Offering" means an underwritten public offering of
common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Purchase Money Debt" means Debt:
(a) consisting of the deferred purchase price of property,
conditional sale obligations, obligations under any title
retention agreement, other purchase money obligations and
obligations in respect of industrial revenue bonds, in each
case where the maturity of such Debt does not exceed the
anticipated useful life of the Property being financed, and
(b) Incurred to finance the acquisition, construction or lease by
the Company or a Restricted Subsidiary of such Property,
including additions and improvements thereto;
provided, however, that such Debt is Incurred within 180 days after the
acquisition, construction or lease of such Property by the Company or such
Restricted Subsidiary; and, provided further, however, that in no event shall
such Debt be incurred in connection with the acquisition of Capital Stock.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Reference Treasury Dealer" means Citigroup Global Markets 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 Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average of the bid and
ask prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
"Refinance" means, in respect of any Debt, to refinance, extend, renew,
refund, repay, prepay, repurchase, redeem, defease or retire, or to issue other
Debt, in exchange or replacement for, such Debt. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Registered Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement
dated May 23, 2003, among the Company, the Subsidiary Guarantors and the Initial
Purchaser, as such agreement may be amended, modified or supplemented from time
to time and, with respect to any Additional Notes, one or more registration
rights agreements between the Company and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Company to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means the global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
Notes sold in reliance on Regulation S.
"Related Business" means any business that is related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
on the Issue Date.
"Rent-Adjusted Leverage Ratio" means the quotient obtained by dividing
(i) the sum of (A) total Debt of the Company and its Restricted Subsidiaries
plus (B) eight times rent expense of the Company and its Restricted Subsidiaries
by (ii) the sum of (A) EBITDA plus (B) rent expense of the Company and its
Restricted Subsidiaries, with total Debt being determined as of the last day of
the most recent four consecutive fiscal quarters ending at least
19
45 days prior to the date of determination, and EBITDA and rent expense being
determined for such four quarter period; provided, however, that:
(1) if
(A) since the beginning of such four quarter period the
Company or any Restricted Subsidiary has Incurred any Debt that remains
outstanding or Repaid any Debt, or
(B) the transaction giving rise to the need to calculate
the Rent-Adjusted Leverage Ratio is an Incurrence or Repayment of Debt,
then Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Incurrence or
Repayment as if such Debt was Incurred or Repaid on the first day of
such period, provided that, in the event of any such Repayment of Debt,
EBITDA for such period shall be calculated as if the Company or such
Restricted Subsidiary had not earned any interest income actually
earned during such period in respect of the funds used to Repay such
Debt, and
(2) if
(A) since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Sale or an Investment
(by merger or otherwise) in any Restricted Subsidiary (or any Person
which becomes a Restricted Subsidiary) or an acquisition of Property
which constitutes all or substantially all of an operating unit of a
business,
(B) the transaction giving rise to the need to calculate
the Rent-Adjusted Leverage Ratio is such an Asset Sale, Investment or
acquisition, or
(C) since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made such an Asset Sale, Investment or acquisition,
then EBITDA for such period shall be calculated after giving pro forma
effect to such Asset Sale, Investment or acquisition as if such Asset
Sale, Investment or acquisition occurred on the first day of such
period.
If any Debt bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Debt shall be calculated as if the base
interest rate in effect for such floating rate of interest on the date of
determination had been the applicable base interest rate for the entire period
(taking into account any Interest Rate Agreement applicable to such Debt if such
Interest Rate Agreement has a remaining term in excess of 12 months). In the
event the Capital Stock of any Restricted Subsidiary is sold during the period,
the Company shall be deemed, for purposes of clause (1) above, to have Repaid
during such period the Debt of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer liable for such
Debt after such sale.
"Repay" means, in respect of any Debt, to repay, prepay, repurchase,
redeem, legally defease or otherwise retire such Debt. "Repayment" and "Repaid"
shall have correlative meanings. For purposes of Section 4.11 and the definition
of "Consolidated Interest Coverage Ratio," Debt shall be considered to have been
Repaid only to the extent the related loan commitment, if any, shall have been
permanently reduced in connection therewith.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Department of the Trustee (or any successor
group of the Trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means one or more Definitive Notes bearing
the Private Placement Legend.
20
"Restricted Global Notes" means the 144A Global Note, the IAI Global
Note and the Regulation S Global Note.
"Restricted Payment" means:
(a) any dividend or distribution (whether made in cash, securities
or other Property) declared or paid on or with respect to any
shares of Capital Stock of the Company or any Restricted
Subsidiary (including any payment in connection with any
merger or consolidation with or into the Company or any
Restricted Subsidiary), except for any dividend or
distribution that is made solely to the Company or a
Restricted Subsidiary (and, if such Restricted Subsidiary is
not a Wholly Owned Restricted Subsidiary, to the other
shareholders of such Restricted Subsidiary on a pro rata basis
or on a basis that results in the receipt by the Company or a
Restricted Subsidiary of dividends or distributions of greater
value than it would receive on a pro rata basis) or any
dividend or distribution payable solely in shares of Capital
Stock (other than Disqualified Stock) of the Company;
(b) the purchase, repurchase, redemption, acquisition or
retirement for value of any Capital Stock of the Company or
any Restricted Subsidiary (other than from the Company or a
Restricted Subsidiary) or any securities exchangeable for or
convertible into any such Capital Stock, including the
exercise of any option to exchange any Capital Stock (other
than for or into Capital Stock of the Company that is not
Disqualified Stock);
(c) the purchase, repurchase, redemption, acquisition or
retirement for value, prior to the date for any scheduled
maturity, sinking fund or amortization or other installment
payment, of any Subordinated Obligation (other than the
purchase, repurchase or other acquisition of any Subordinated
Obligation purchased in anticipation of satisfying a scheduled
maturity, sinking fund or amortization or other installment
obligation, in each case due within one year of the date of
acquisition);
(d) any Investment (other than Permitted Investments) in any
Person; or
(e) the issuance, sale or other disposition of Capital Stock of
any Restricted Subsidiary to a Person other than the Company
or another Restricted Subsidiary if the result thereof is that
such Restricted Subsidiary shall cease to be a Restricted
Subsidiary, in which event the amount of such "Restricted
Payment" shall be the Fair Market Value of the remaining
interest, if any, in such former Restricted Subsidiary held by
the Company and the other Restricted Subsidiaries.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Revolving Credit Facility" means the credit agreement, dated as of the
Issue Date, by and among the Company, Xxxxxx Trust and Savings Bank, as
Administrative Agent, and the several banks and other financial institutions or
entities from time to time parties thereto, including any notes, collateral
documents, letters of credit and documentation and guarantees, and any
appendices, exhibits or schedules to any of the foregoing, as such agreement may
be in effect from time to time, in each case together with any extensions,
revisions, refinancings or replacements thereof by a lender or syndicate of
lenders, which refinancing or replacement is designated in advance by the
Company to the Trustee as a first lien credit facility refinancing or
replacement.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
21
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor to the rating agency business thereof.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such Property to another Person and
the Company or a Restricted Subsidiary leases it from such Person.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security and Pledge Agreement to be
dated on or about the Issue Date among the Collateral Agent, the Trustee, the
Company and the Subsidiary Guarantors parties thereto, granting, among other
things, a second priority Lien on the Collateral described therein in favor of
the Collateral Agent for the benefit of the Trustee and Holders of the Notes, as
amended, modified, restated, supplemented or replaced from time to time.
"Security Documents" means, collectively, the Security Agreement, the
Intercreditor Agreement, the Mortgage, the Trademark Collateral Agreement and
all other mortgages, deeds of trust, security agreements, pledges, collateral
assignments or other instruments evidencing or creating any security interests
in favor of the Collateral Agent, for the benefit of the Trustee and Holders of
the Notes, in all or any portion of the Collateral, in each case, as amended,
modified, restated, supplemented or replaced from time to time.
"Senior Collateral Agent" means Xxxxxx Trust and Savings Bank acting as
collateral agent for the lenders under the Revolving Credit Facility and the
Intercreditor Agreement or any successor or replacement collateral agent for
such lenders as permitted under the Intercreditor Agreement.
"Senior Debt" means:
(a) all obligations consisting of the principal, premium, if any,
and accrued and unpaid interest (including interest accruing
on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company to the extent
post-filing interest is allowed in such proceeding and all
fees, expenses and indemnities and all other amounts payable
with respect to the Debt) in respect of:
(1) Debt of the Company for borrowed money, and
(2) Debt of the Company evidenced by notes, debentures,
bonds or other similar instruments permitted under
the Indenture for the payment of which the Company is
responsible or liable;
(b) all Capital Lease Obligations of the Company and all
Attributable Debt in respect of Sale and Leaseback
Transactions entered into by the Company;
(c) all obligations of the Company
(1) for the reimbursement of any obligor on any letter of
credit, bankers' acceptance or similar credit
transaction,
(2) under Hedging Obligations or Cash Management Services
Obligations, or
(3) issued or assumed as the deferred purchase price of
Property and all conditional sale obligations of the
Company and all obligations under any title retention
agreement permitted under the Indenture; and
(d) all obligations of other Persons of the type referred to in
clauses (a), (b) and (c) for the payment of which the Company
is responsible or liable as Guarantor;
22
provided, however, that Senior Debt shall not include:
(A) Debt of the Company that is by its terms subordinate
in right of payment to the Notes, including any
Subordinated Obligations,
(B) any Debt Incurred in violation of the provisions of
the Indenture;
(C) accounts payable or any other obligations of the
Company to trade creditors created or assumed by the
Company in the ordinary course of business in
connection with the obtaining of materials or
services (including Guarantees thereof or instruments
evidencing such liabilities);
(D) any liability for federal, state, local or other
taxes owed or owing by the Company;
(E) any obligation of the Company to any Subsidiary; or
(F) any obligations with respect to any Capital Stock of
the Company.
To the extent that any payment of Senior Debt (whether by or on behalf of the
Company as proceeds of security or enforcement or any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to a trustee, receiver or other similar party under any bankruptcy,
insolvency receivership or similar law, then if such payment is recovered by, or
paid over to, such trustee, receiver or other similar party, the Senior Debt or
part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred. "Senior Debt" of
any Subsidiary Guarantor has a correlative meaning and shall not include any
obligation of such Subsidiary Guarantor to the Company or any other Subsidiary
of the Company.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Special Interest" means the Special Interest as defined in Section 2
of the form of Note attached here to as Exhibit A.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Obligation" means any Debt of the Company or any
Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) that is subordinate or junior in right of payment to the Notes or any
Subsidiary Guaranty pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation, company
(including any limited liability company), association, partnership, joint
venture or other business entity of which a majority of the total voting power
of the Voting Stock is at the time owned or controlled, directly or indirectly,
by:
(a) such Person,
(b) such Person and one or more Subsidiaries of such Person, or
(c) one or more Subsidiaries of such Person.
23
"Subsidiary Guarantor" means each Domestic Restricted Subsidiary of the
Company on the Issue Date and any other Person that becomes a Subsidiary
Guarantor pursuant to Section 4.18 or that otherwise executes and delivers a
supplemental indenture providing for a Subsidiary Guaranty to the Trustee. As of
the date of this Indenture, the Subsidiary Guarantors are Rent-Way of Tomorrow,
Inc., Rent-Way of Michigan, Inc., Action Rent to Own Holdings of South Carolina,
Inc., Rent-Way Developments, Inc. and Rent-Way of TTIG, L.P.
"Subsidiary Guaranty" means a Guarantee on the terms set forth herein
by a Subsidiary Guarantor of the Company's Obligations with respect to the Notes
and the related Exchange Notes.
"Surviving Person" means the surviving Person formed by a merger,
consolidation or amalgamation and, for purposes of Section 5.1, a Person to whom
all or substantially all the Property of the Company or a Subsidiary Guarantor
is sold, transferred, assigned, leased, conveyed or otherwise disposed.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trademark Collateral Agreement" means the Trademark Collateral
Agreement to be dated on or about the Issue Date among the Company and the
Trustee, granting, among other things a security interest in the trademarks
listed therein in favor of the Trustee and Holders of the Notes, as amended,
modified, restated, supplemented or replaced from time to time.
"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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Definitive Notes" means one or more Definitive Notes that
do not and are not required to bear the Private Placement Legend.
"Unrestricted Global Notes" means one or more Global Notes, in the form
of Exhibit A attached hereto, that do not and are not required to bear the
Private Placement Legend and are deposited with and registered in the name of
the Depositary or its nominee.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the Company that is designated after the
Issue Date as an Unrestricted Subsidiary as permitted or
required pursuant to Section 4.15 and is not thereafter
redesignated as a Restricted Subsidiary as permitted pursuant
thereto;
(b) any Subsidiary of an Unrestricted Subsidiary; and
(c) dPi.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"U.S. Person" has the meaning set forth in Regulation S.
24
"Voting Stock" any Person means all classes of Capital Stock (including
partnership interests) or other interests of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Restricted Subsidiary" means, at any time, a Restricted
Subsidiary all the Voting Stock of which (except directors' qualifying shares)
is at such time owned, directly or indirectly, by the Company and its other
Wholly Owned Restricted Subsidiaries.
"Working Capital" means, as of a particular date, (a) the amount of
inventory of the Company and its consolidated Restricted Subsidiaries, minus (b)
the amount of accounts payable of the Company and its consolidated Restricted
Subsidiaries, minus (c) the amount of accrued expenses of the Company and its
consolidated Restricted Subsidiaries.
SECTION 1.2 OTHER DEFINITIONS.
TERM DEFINED IN:
---- ----------
Affiliate Transaction Section 4.13(a)4
Authentication Order Section 2.2(d)
Benefited Party Section 10.1(b)
Change of Control Offer Section 4.17(a)
Change of Control Purchase Price Section 4.17(a)
Collateral Section 11.1(d)
Collateral Account Section 11.3(a)
Company preamble
Covenant Defeasance Section 8.3
cross acceleration provisions Section 6.1(a)(v)
DTC Section 2.3(b)
Excess Cash Flow Collateral Account Section 4.19(b)(i))
Excess Cash Flow Offer Section 4.19(a)(i)
Excess Cash Flow Offer Period Section 4.19(a)(iii)
Excess Cash Flow Payment Date Section 4.19(a)(iii))
Excess Proceeds Section 4.11(c)
judgment default provisions Section 6.1(a)(vi)
Legal Defeasance Section 8.2
losses Section 7.7(b)
Notes preamble
Notice of Default Section 6.1(b)
Paying Agent Section 2.3(a)
Permitted Debt Section 4.8(b)
Prepayment Offer Section 4.11(d)
Primary Treasury Dealer Section 1.1
Registrar Section 2.3(a)
Released Interests Section 11.2(b)
Security Register Section 2.3(a)
Subsidiary Group Section 6.1(a)(vii)
Valuation Date Section 11.2(b)(i)(2)
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.
(b) The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes and the Subsidiary
Guaranties;
25
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company, the Subsidiary
Guarantors and any successor obligor upon the Notes or the
Subsidiary Guaranties.
(c) All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
Commission rule under the TIA have the meanings so assigned to them.
SECTION 1.4 RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined
herein has the meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural,
and in the plural include the singular;
(v) all references in this instrument to
designated "Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and subdivisions of this instrument as
originally executed;
(vi) the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
(vii) "including" means "including without
limitation";
(viii) provisions apply to successive events and
transactions; and
(ix) references to sections of or rules under the
Securities Act, Exchange Act and TIA shall be deemed to include
substitute, replacement or successor sections or rules adopted by the
Commission from time to time.
ARTICLE 2.
THE NOTES
SECTION 2.1 FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and expressly made part of this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture, and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.
26
(b) FORM OF NOTES. The Notes shall be issued initially in
global form and shall be substantially in the form of Exhibit A attached hereto
(including the Global Note Legend thereon and the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Notes issued in definitive form
shall be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the "Schedule of Exchanges of Interests
in the Global Note" attached thereto). Each Global Note shall represent such of
the outstanding Notes as shall be specified therein, and each shall provide that
it shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.6.
(c) BOOK-ENTRY PROVISIONS. This Section 2.1(c) shall only
apply to Global Notes deposited with the Trustee, as custodian for the
Depositary. Participants and Indirect Participants shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as the custodian for the Depositary or under such
Global Note, and the Depositary shall be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
(a) Two Officers shall sign the Notes for the Company by
manual or facsimile signature.
(b) If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
(c) A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the
Company signed by an Officer (an "Authentication Order"), authenticate Notes for
original issue.
(e) The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders, the Company or an Affiliate of the Company.
(f) The Company may issue Additional Notes from time to
time after the issuance of the Offered Notes as part of the same series or as an
additional series. The Offered Notes, the Exchange Notes and any Additional
Notes subsequently issued under this Indenture shall be treated as a single
class for all purposes under this Indenture, including, without limitation,
waivers, amendments, redemptions and offers to purchase.
SECTION 2.3 REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain an office or agency where
Notes may be presented for registration, transfer or exchange ("Registrar") and
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange (the "Security Register"). The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar, and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the
27
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to
the Global Notes.
(c) The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Custodian with respect to the
Global Notes.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest, including Special Interest, if any,
on, the Notes, and shall notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, of the names and addresses of the
Holders, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.6 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of such
notice from the Depositary; (ii) the Company in its sole discretion at any time
determines not to have all Notes represented by the Global Notes and delivers a
written notice to such effect to the Trustee; or (iii) an Event of Default with
respect to the Notes represented by such Global Notes shall have occurred and be
continuing, and the Trustee has received a request from the Depositary to issue
Definitive Notes in lieu of Global Notes. Upon the occurrence of any of the
preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued
in denominations of $1,000 or integral multiples thereof and in such names as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Section 2.7 and Section 2.10. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.6(a); however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.6(b), (c) or (f).
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the
28
extent required by the Securities Act. Transfers of beneficial interests in the
Global Notes also shall require compliance with either clause (i) or (ii) below,
as applicable, as well as one or more of the other following clauses, as
applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Distribution Compliance Period, transfers of beneficial interests in
the Regulation S Global Note may not be made to a U.S. Person or for
the account or benefit of a U.S. Person (other than the Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.6(b)(i).
(ii) All Other Transfers and Exchanges of
Beneficial Interests in Global Notes. In connection with all transfers
and exchanges of beneficial interests that are not subject to Section
2.6(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (1) (A) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (B) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (2) (A) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (B) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (2)(A)
above. Upon consummation of a Registered Exchange Offer by the Company
in accordance with Section 2.6(f), the requirements of this Section
2.6(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.6(h).
(iii) Transfer of Beneficial Interests in a
Restricted Global Note to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the
requirements of Section 2.6(b)(ii) above and the Registrar receives the
following:
(1) if the transferee will take
delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(2) if the transferee will take
delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(3) if the transferee will take
delivery in the form of a beneficial interest in the IAI
Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(iv) Transfer and Exchange of Beneficial
Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note. A beneficial interest in any Restricted
Global Note may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or
29
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.6(b)(ii) above
and:
(1) such exchange or transfer is
effected pursuant to a Registered Exchange Offer in accordance
with the Registration Rights Agreement, and the holder of the
beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (A) a broker-dealer, (B) a Person participating in the
distribution of the Exchange Notes or (C) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(3) such transfer is effected by a
broker-dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(4) the Registrar receives the
following:
(A) if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(B) if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this clause (4), if the Registrar
or the Company so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Registrar or
the Company, as the case may be, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to clause (2) or (4) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.2, the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to clause (2) or (4) above.
(v) Transfer or Exchange of Beneficial Interests
in Unrestricted Global Notes for Beneficial Interests in Restricted
Global Notes Prohibited. Beneficial interests in an Unrestricted Global
Note cannot be exchanged for, or transferred to Persons who take
delivery thereof in the form of, a beneficial interest in a Restricted
Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE NOTES.
(i) Beneficial Interests in Restricted Global
Notes to Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer
such beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
30
(2) if such beneficial interest is
being transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(3) if such beneficial interest is
being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(4) if such beneficial interest is
being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(5) if such beneficial interest is
being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in clauses (2)
through (4) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3)(d) thereof;
(6) if such beneficial interest is
being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(7) if such beneficial interest is
being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.6(h), and the Company shall
execute and the Trustee shall authenticate and deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.6(c)(i) shall be registered in such name
or names and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The Trustee shall
mail or deliver such Definitive Notes to the Persons in whose names such Notes
are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.6(c)(i) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes. A holder of a beneficial
interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note only if:
(1) such exchange or transfer is
effected pursuant to a Registered Exchange Offer in accordance
with the Registration Rights Agreement, and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (A) a
broker-dealer, (B) a Person participating in the distribution
of the Exchange Notes or (C) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(2) such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(3) such transfer is effected by a
broker-dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
31
(4) the Registrar receives the
following:
(A) if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(B) if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this clause (4), if the Registrar
or the Company so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Registrar or
the Company, as the case may be, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Note, then, upon satisfaction of the conditions set
forth in Section 2.6(b)(ii), the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.6(h), and the Company shall execute
and the Trustee shall authenticate and mail or deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.6(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall mail or deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.6(c)(iii) shall not bear the
Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR
BENEFICIAL INTERESTS.
(i) Restricted Definitive Notes to Beneficial
Interests in Restricted Global Notes. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted
Definitive Notes to a Person who takes delivery thereof in the form of
a beneficial interest in a Restricted Global Note, then, upon receipt
by the Registrar of the following documentation:
(1) if the Holder of such Restricted
Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(2) if such Restricted Definitive Note
is being transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(3) if such Restricted Definitive Note
is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(4) if such Restricted Definitive Note
is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144, a
32
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(5) if such Restricted Definitive Note
is being transferred to an Institutional Accredited Investor
in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in clauses (2)
through (4) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3)(d) thereof;
(6) if such Restricted Definitive Note
is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(b) thereof;
or
(7) if such Restricted Definitive Note
is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (1) above,
the appropriate Restricted Global Note, in the case of clause (2) above, the
144A Global Note, in the case of clause (3) above, the Regulation S Global Note,
and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:
(1) such exchange or transfer is
effected pursuant to a Registered Exchange Offer in accordance
with the Registration Rights Agreement, and the Holder, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (A) a broker-dealer, (B) a Person participating
in the distribution of the Exchange Notes or (C) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(3) such transfer is effected by a
broker-dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(4) the Registrar receives the
following:
(A) if the Holder of such
Definitive Notes proposes to exchange such Notes for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(B) if the Holder of such
Definitive Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this clause (4), if the Registrar
or the Company so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Registrar or
the Company, as the case may be, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
33
Upon satisfaction of the conditions of any of the clauses in this Section
2.6(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause
to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Note
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted
Global Notes.
(iv) Transfer or Exchange of Unrestricted
Definitive Notes to Beneficial Interests in Restricted Global Notes
Prohibited. An Unrestricted Definitive Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of,
beneficial interests in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If
any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to clauses (ii)(2), (ii)(4) or (iii) of
this Section 2.6(d)) at a time when an Unrestricted Global Note has not
yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.2, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR
DEFINITIVE NOTES. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.6(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.6(e).
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(1) if the transfer will be made
pursuant to Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof; (2) if the transfer will
be made pursuant to Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(2) if the transfer will be made
pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(1) such exchange or transfer is
effected pursuant to a Registered Exchange Offer in accordance
with the Registration Rights Agreement, and the Holder, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of
34
Transmittal that it is not (A) a broker-dealer, (B) a Person
participating in the distribution of the Exchange Notes or (C)
a Person who is an affiliate (as defined in Rule 144) of the
Company;
(2) any such transfer is effected
pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(3) any such transfer is effected by a
broker-dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(4) the Registrar receives the
following:
(A) if the Holder of such
Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof; or
(B) if the Holder of such
Restricted Definitive Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (4), if the Registrar
or the Company so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar or the Company, as the case may be, to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to
Unrestricted Definitive Notes. A Holder of Unrestricted Definitive
Notes may transfer such Notes to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Note. Upon receipt of a request
to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(f) REGISTERED EXCHANGE OFFER. Upon the occurrence of a
Registered Exchange Offer in accordance with the relevant Registration Rights
Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.2, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (1) they are not broker-dealers, (2) they are not participating
in a distribution of the Exchange Notes and (3) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Registered
Exchange Offer and (ii) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes tendered
for acceptance by Persons who made the foregoing certification and accepted for
exchange in the Registered Exchange Offer. Concurrently with the issuance of
such Notes, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly, and the Company
shall execute and the Trustee shall authenticate and mail or deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(1) Except as permitted by clause (2)
below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY BEFORE THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B)
UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE UNDER RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) UNDER OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) UNDER ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT BEFORE
ANY SUCH OFFER, SALE OR TRANSFER UNDER CLAUSES (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
(2) Notwithstanding the foregoing, any
Global Note or Definitive Note issued pursuant to clauses
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.6 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall
bear a legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION
2.6(A) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY.
36
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or
for Definitive Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly, and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly, and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND
EXCHANGES.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.2, the Trustee shall
authenticate Global Notes and Definitive Notes upon the Company's order
or at the Registrar's request.
(ii) No service charge shall be made to a Holder
of a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Section 2.10, Section
3.6, Section 4.11, Section 4.17, Section 4.19 and Section 9.5).
(iii) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon
such registration of transfer or exchange.
(iv) Neither the Registrar nor the Company shall
be required (1) to issue, to register the transfer of or to exchange
any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section
3.2 and ending at the close of business on the day of selection, (2) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (3) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest
payment date.
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(v) Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of, premium, if any, and interest,
including Special Interest, if any, on, such Notes and for all other
purposes, and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes
and Definitive Notes in accordance with the provisions of Section 2.2
and Section 2.6(i)(i).
(vii) All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar pursuant
to this Section 2.6 to effect a registration of transfer or exchange
may be submitted by facsimile.
(viii) The Trustee is hereby authorized to enter
into a letter of representations with the Depository in the form
provided by the Company and to act in accordance with such letter.
SECTION 2.7 REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Trustee
or the Company, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in replacing a
Note.
(b) Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
SECTION 2.8 OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.8 as not outstanding. Except as set forth in Section
2.9, a Note does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Note; however, Notes held by the Company or a
Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.7(b).
(b) If a Note is replaced pursuant to Section 2.7, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered
paid under Section 4.1, it ceases to be outstanding and interest on it ceases to
accrue.
(d) If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
SECTION 2.9 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
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SECTION 2.10 TEMPORARY NOTES.
(a) Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall
be substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate Definitive Notes in exchange for temporary
Notes.
(b) Holders of temporary Notes shall be entitled to all
of the benefits of this Indenture.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and, at the request of
the Company, shall destroy cancelled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or, except as contemplated by a
Registered Exchange Offer, that have been delivered to the Trustee for
cancellation.
SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest, including Special
Interest, if any, on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.1. The Company
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment. The Company shall
fix or cause to be fixed each such special record date and payment date,
provided that no such special record date shall be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
SECTION 2.13 CUSIP OR ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" or "ISIN" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" or "ISIN"
numbers in notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" or "ISIN" numbers.
SECTION 2.14 SPECIAL INTEREST.
If Special Interest is payable by the Company pursuant to paragraphs 1
and 2 of the Notes, the Company shall deliver to the Trustee a certificate to
that effect stating (a) the amount of such Special Interest that is payable and
(b) the date on which such interest is payable. Unless and until a Responsible
Officer of the Trustee receives such a certificate or instruction or direction
from the Holders in accordance with the terms of this Indenture, the Trustee may
assume without inquiry that no Special Interest is payable. The foregoing shall
not prejudice the rights of the Holders with respect to their entitlement to
Special Interest as otherwise set forth in this Indenture or the Notes and
pursuing any action against the Company directly or otherwise directing the
Trustee to take any such action in accordance with the terms of this Indenture
and the Notes. If the Company has paid Special Interest directly to the Persons
entitled to it, the Company shall deliver to the Trustee a certificate setting
forth the particulars of such payment.
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.1 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7, it shall furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (a) the paragraph of the Notes or the Section (or
clause) of this Indenture pursuant to which the redemption shall occur, (b) the
redemption date, (c) the principal amount of Notes to be redeemed and (d) the
redemption price.
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.
(a) If less than all of the Notes are to be redeemed at
any time, the Trustee shall select the Notes to be redeemed among the Holders of
the Notes on a pro rata basis, by lot or in accordance with any other method the
Trustee considers fair and appropriate. In the event of partial redemption by
lot, the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.
(b) The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed.
Notes and portions of Notes selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed, the entire outstanding amount of Notes held by such Holder, even if
not a multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
(c) The provisions of clauses (a) and (b) of this Section
3.2 shall not apply with respect to any redemption affecting only a Global Note,
whether such Global Note is to be redeemed in whole or in part, to the extent
such provisions conflict with Applicable Procedures. In case of any such
redemption in part, the unredeemed portion of the principal amount of the Global
Note shall be in an authorized denomination.
SECTION 3.3 NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address.
(b) The notice shall identify the Notes to be redeemed
and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion shall be
issued upon cancellation of the original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
40
(vi) that, unless the Company defaults in making
such redemption payment, interest, including Special Interest, if any,
on Notes called for redemption ceases to accrue on and after the
redemption date;
(vii) the paragraph of the Notes or Section (or
clause) of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(viii) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Notes.
If any of the Notes to be redeemed is in the form of a beneficial interest in a
Global Note, then the Company shall modify such notice to the extent necessary
to accord with the procedures of the Depositary applicable to redemption.
(c) At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Trustee, at least 45 days,
or such shorter period allowed by the Trustee, prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in this Section
3.3.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.3,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
(a) On or before 11:00 a.m. Eastern Time on the Business
Day prior to any redemption date, the Company shall deposit with the Trustee or
with the Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 2.4) money sufficient to pay
the redemption price of, and accrued interest, including Special Interest, if
any, on, all Notes to be redeemed on that date. The Trustee or the Paying Agent
shall promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest, including Special Interest, if any,
on, all Notes to be redeemed.
(b) If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest, including
Special Interest, if any, shall cease to accrue on the Notes or the portions of
Notes called for redemption. If a Note is redeemed on or after an interest
record date but on or prior to the related interest payment date, then any
accrued and unpaid interest shall be paid to the Person in whose name such Note
was registered at the close of business on such record date. If any Note called
for redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest,
including Special Interest, if any, shall be paid on the unpaid principal from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.1.
SECTION 3.6 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
SECTION 3.7 OPTIONAL REDEMPTION.
(a) Except as set forth below and in clause (b) of this
Section 3.7, the Notes will not be redeemable at the option of the Company. At
any time prior to June 15, 2010, the Company may redeem all or any
41
portion of the Notes, at once or over time, after giving notice in accordance
with Section 3.3, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the Notes to
be redeemed, and
(ii) the sum of the present values of (i) 100% of
the principal amount of the Notes to be redeemed at June 15, 2010, and
(ii) the remaining scheduled payments of interest from the redemption
date through June 15, 2010, but excluding accrued and unpaid interest
through the redemption date, discounted to the redemption date at the
Treasury Rate plus 175 basis points,
plus, in either case, accrued and unpaid interest and Special 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 needs to include
the appropriate calculation of the redemption price, but does not need to
include the redemption price itself. The actual redemption price, calculated as
described above, must be set forth in an Officers' Certificate delivered to the
Trustee no later than two Business Days prior to the redemption date.
(b) At any time and from time to time prior to June 15,
2006, the Company may redeem up to a maximum of 25% of the aggregate principal
amount of the Notes, including any Additional Notes, with the proceeds of one or
more Public Equity Offerings, at a redemption price equal to 111.875% of the
principal amount thereof, plus accrued and unpaid interest and Special Interest,
if any, to the redemption date (subject to the right of Holders on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that after giving effect to any such redemption, at least 75%
of the original aggregate principal amount of the Notes (including any
Additional Notes) issued on or after the Issue Date remains outstanding. Any
such redemption shall be made within 75 days of such Public Equity Offering upon
not less than 30 nor more than 60 days' prior notice.
(c) Any prepayment pursuant to this Section 3.7 shall be
made pursuant to the provisions of Section 3.1 through Section 3.6.
SECTION 3.8 MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
ARTICLE 4.
COVENANTS
SECTION 4.1 PAYMENT OF NOTES.
(a) The Company shall pay or cause to be paid the
principal of, premium, if any, and interest, including Special Interest, if any,
on, the Notes on the dates and in the manner provided in the Notes and this
Indenture. Principal, premium, if any, and interest, including Special Interest,
if any, shall be considered paid on the date due if the Paying Agent, if other
than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest, including Special Interest, if any, then due.
(b) The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest, including Special Interest, if any, (without regard to
any applicable grace periods) from time to time on demand at the same rate to
the extent lawful.
(c) Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
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SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain, in the continental United
States, an office or agency (which may be an office or drop facility of the
Trustee or an affiliate of the Trustee, Registrar or co-registrar, Paying Agent
or additional paying agent) where Notes may be presented or surrendered for
payment, registration of transfer or for exchange and where notices and demands
to or upon the Company in respect of the Notes and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
(c) The Company hereby designates the Corporate Trust
Office of the Trustee, as one such office, drop facility or agency of the
Company in accordance with Section 2.3.
SECTION 4.3 REPORTS.
(a) Notwithstanding that the Company may not be subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so
long as any Notes are outstanding, the Company shall file with the Commission
and provide the Trustee and Holders with such annual reports and such
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
sections, such information, documents and reports so to be filed with the
Commission and provided at the times specified for the filing of such
information, documents and reports under such sections; provided, however, that
the Company shall not be so obligated to file such information, documents and
reports with the Commission if the Commission does not permit such filings.
(b) For so long as any Notes remain outstanding, the
Company shall 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.
SECTION 4.4 COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered to the Trustee pursuant to Section 4.3
above shall be accompanied by a written statement of the Company's independent
public accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Company has violated any
43
provisions of Article 4 or Article 5 or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in the form of an Officers'
Certificate of any Default, its status and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.5 TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
SECTION 4.6 STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.7 CORPORATE EXISTENCE.
Subject to Article 5, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and the corporate, limited liability company, partnership or other
existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents (as the same may be amended from time to
time) of the Company or any such Restricted Subsidiary; provided, however, that
the Company shall not be required to preserve the corporate, limited liability
company, partnership or other existence of any of its Restricted Subsidiaries if
(i) the cessation of such existence complies with Article 5 or (ii) an Officer
of the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
SECTION 4.8 INCURRENCE OF DEBT.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, Incur, directly or indirectly, any Debt (including any
Acquired Debt) unless, after giving effect to the application of the proceeds
thereof, no Default or Event of Default would occur as a consequence of such
Incurrence or be continuing following such Incurrence and either:
(i) such Debt is Debt of the Company or a
Subsidiary Guarantor and after giving effect to the Incurrence of such
Debt and the application of the proceeds thereof, the Consolidated
Interest Coverage Ratio would be equal to or greater than 2.25 to 1.00
and the Rent-Adjusted Leverage Ratio would be equal to or less than
5.00 to 1.00; provided, that if the Debt which is the subject of a
determination under this provision is Acquired Debt or Debt to be
incurred in connection with the simultaneous acquisition of any Person,
business or Property, then such ratios shall be determined on a pro
forma basis, as if the transaction had occurred at the beginning of the
four quarter period used in the determination of such ratios, or
(ii) such Debt is Permitted Debt.
44
(b) The term "Permitted Debt" is defined to include the
following:
(i) (1) Debt of the Company evidenced by the
Offered Notes, the Exchange Notes or any new notes issued in exchange
for Additional Notes, provided such new notes have terms substantially
identical in all material respects to such Additional Notes and are
issued pursuant to arrangements similar to those described in the
Registration Rights Agreement, and (2) Debt of the Subsidiary
Guarantors evidenced by the Subsidiary Guarantees relating to the Notes
issued in this offering and the Exchange Notes issued in exchange for
the Notes and any Additional Notes;
(ii) Debt of the Company and the Subsidiary
Guarantors under the Revolving Credit Facility, provided that the
aggregate principal amount of all such Debt under the Revolving Credit
Facility at any one time outstanding shall not exceed $60.0 million,
which amount shall be permanently reduced by the amount of Net
Available Cash used to Repay Debt, and permanently reduce the
commitments, under the Revolving Credit Facility;
(iii) Debt of the Company or a Subsidiary
Guarantor in respect of Capital Lease Obligations and Purchase Money
Debt, provided that:
(1) the aggregate principal amount of
such Debt does not exceed the Fair Market Value of the
Property acquired, constructed or leased, and
(2) the aggregate principal amount of
all Debt Incurred and then outstanding pursuant to this clause
(iii) (together with all Permitted Refinancing Debt Incurred
and then outstanding in respect of Debt previously Incurred
pursuant to this clause (iii)) does not exceed $20.0 million;
(iv) Debt of the Company owing to and held by any
Wholly Owned Restricted Subsidiary and Debt of a Restricted Subsidiary
owing to and held by the Company or any Wholly Owned Restricted
Subsidiary; provided, however, that any subsequent issue or transfer of
Capital Stock or other event that results in any such Wholly Owned
Restricted Subsidiary ceasing to be a Wholly Owned Restricted
Subsidiary or any subsequent transfer of any such Debt (except to the
Company or a Wholly Owned Restricted Subsidiary) shall be deemed, in
each case, to constitute the Incurrence of such Debt by the issuer
thereof;
(v) Debt under Interest Rate Agreements entered
into by the Company or a Subsidiary Guarantor for the purpose of
limiting interest rate risk in the ordinary course of the financial
management of the Company or such Subsidiary Guarantor and not for
speculative purposes and Debt under Cash Management Services
Obligations, provided that the obligations under such agreements are
directly related to payment obligations on Debt otherwise permitted by
the terms of this covenant;
(vi) Debt in connection with one or more standby
letters of credit or performance bonds issued by the Company or a
Restricted Subsidiary in the ordinary course of business or pursuant to
self-insurance obligations and not in connection with the borrowing of
money or the obtaining of advances or credit;
(vii) Debt of the Company or a Restricted
Subsidiary outstanding on the Issue Date not otherwise described in
clauses (i) through (vi) above;
(viii) Debt of a Restricted Subsidiary outstanding
on the date on which such Restricted Subsidiary was acquired by the
Company or otherwise became a Restricted Subsidiary (other than Debt
Incurred as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or
series of transactions pursuant to which such Restricted Subsidiary
became a Subsidiary of the Company or was otherwise acquired by the
Company), provided that at the time such Restricted Subsidiary was
acquired by the Company or otherwise became a Restricted Subsidiary and
after giving effect to the Incurrence of such Debt, the Company would
have been able to
45
Incur $1.00 of additional Debt pursuant to clause (a)(i) above, and
provided further that such Restricted Subsidiary executes and delivers
a supplemental indenture providing for a Subsidiary Guaranty in
accordance with Section 4.18;
(ix) Debt of the Company and its Subsidiary
Guarantors in an aggregate principal amount outstanding at any one time
not to exceed $15.0 million; and
(x) Permitted Refinancing Debt Incurred in
respect of Debt Incurred pursuant to clause (a)(i) clauses (b)(i),
(iii), (vii) and (viii) above.
(c) Notwithstanding anything to the contrary contained in
this covenant, accrual of interest, accretion or amortization of original issue
discount and the payment of interest or dividends in the form of additional
Debt, will be deemed not to be an Incurrence of Debt for purpose of this
covenant.
(d) For purposes of determining compliance with this
covenant, in the event that an item of Debt meets the criteria of more than one
of the categories of Permitted Debt described in clauses (b)(i) through (x)
above or is entitled to be incurred pursuant to clause (a)(i), the Company
shall, in its sole discretion, classify such item of Debt in any manner that
complies with this covenant and such item of Debt will be treated as having been
incurred pursuant to only one of such clauses or pursuant to clause (a)(i).
SECTION 4.9 RESTRICTED PAYMENTS.
(a) The Company shall not make, and shall not permit any
Restricted Subsidiary to make, directly or indirectly, any Restricted Payment if
at the time of, and after giving effect to, such proposed Restricted Payment,
(i) a Default or Event of Default shall have
occurred and be continuing,
(ii) the Company could not Incur at least $1.00
of additional Debt pursuant to Section 4.8(a)(i) or
(iii) the aggregate amount of such Restricted
Payment and all other Restricted Payments declared or made since the
Issue Date (the amount of any Restricted Payment, if made other than in
cash, to be based upon the Fair Market Value at the time of such
Restricted Payment) would exceed an amount equal to the sum of:
(1) 50% of the aggregate amount of
Consolidated Net Income accrued during the period (treated as
one accounting period) from the beginning of the fiscal
quarter during which the Issue Date occurs to the end of the
most recent fiscal quarter ending at least 45 days prior to
the date of such Restricted Payment (or if the aggregate
amount of Consolidated Net Income for such period shall be a
deficit, minus 100% of such deficit), plus
(2) 100% of the Capital Stock Sale
Proceeds, plus
(3) the sum of:
(A) the aggregate net cash
proceeds received by the Company or any Restricted Subsidiary from the issuance
or sale after the Issue Date of convertible or exchangeable Debt that has been
converted into or exchanged for Capital Stock (other than Disqualified Stock) of
the Company, and
(B) the aggregate amount by
which Debt (other than Subordinated Obligations) of the Company or any
Restricted Subsidiary is reduced on the Company's consolidated balance sheet on
or after the Issue Date upon the conversion or exchange of any Debt issued or
sold on or prior to the Issue Date that is convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of the Company,
46
excluding, in the case of clause (A) or (B):
(x) any such Debt
issued or sold to the Company or a
Subsidiary of the Company or an employee
stock ownership plan or trust established by
the Company or any such Subsidiary for the
benefit of their employees, and
(y) the aggregate
amount of any cash or other Property
distributed by the Company or any Restricted
Subsidiary upon any such conversion or
exchange, plus
(4) an amount equal to the sum of:
(A) the net reduction in
Investments in any Person other than the Company or a Restricted Subsidiary
resulting from dividends, repayments of loans or advances or other transfers of
Property, in each case to the Company or any Restricted Subsidiary from such
Person, and
(B) the portion (proportionate
to the Company's equity interest in such Unrestricted Subsidiary) of the Fair
Market Value of the net assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case of any Person, the
amount of Investments previously made (and treated as a Restricted Payment) by
the Company or any Restricted Subsidiary in such Person or, in the case of dPi,
the amount of Investments previously made by the Company as of the Issue Date.
(b) Notwithstanding the foregoing limitation, the Company
may:
(i) pay dividends on its Capital Stock within 60
days of the declaration thereof if, on said declaration date, such
dividends could have been paid in compliance with the Indenture;
provided, however, that at the time of such payment of such dividend,
no other Default or Event of Default shall have occurred and be
continuing (or result therefrom); provided further, however, that such
dividend shall be included in the calculation of the amount of
Restricted Payments;
(ii) purchase, repurchase, redeem, legally
defease, acquire or retire for value Capital Stock of the Company or
Subordinated Obligations in exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company (other
than Disqualified Stock and other than Capital Stock issued or sold to
a Subsidiary of the Company or an employee stock ownership plan or
trust established by the Company or any such Subsidiary for the benefit
of their employees);
provided, however, that
(1) such purchase, repurchase,
redemption, legal defeasance, acquisition or retirement shall
be excluded in the calculation of the amount of Restricted
Payments and
(2) the Capital Stock Sale Proceeds
from such exchange or sale shall be excluded from the
calculation pursuant to Section 4.9(a)(iii)(2) above;
(iii) purchase, repurchase, redeem, legally
defease, acquire or retire for value any Subordinated Obligations in
exchange for, or out of the proceeds of the substantially concurrent
sale of, Permitted Refinancing Debt; provided, however, that such
purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall be excluded in the calculation of the amount of
Restricted Payments;
(iv) repurchase shares of, or options to purchase
shares of, common stock of the Company or any of its Subsidiaries from
current or former officers, directors or employees of the Company or
any of its Subsidiaries (or permitted transferees of such current or
former officers, directors or
47
employees), pursuant to the terms of agreements (including employment
agreements) or plans (or amendments thereto) approved by the Board of
Directors under which such individuals purchase or sell, or are granted
the option to purchase or sell, shares of such common stock, provided,
however, that:
(1) the aggregate amount of such
repurchases shall not exceed $1.0 million in any calendar year
and
(2) at the time of such repurchase, no
other Default or Event of Default shall have occurred and be
continuing (or result therefrom);
(v) acquire its Capital Stock in connection with
the exercise of warrants outstanding on the Issue Date, stock options
or stock appreciation rights by way of cashless exercise; and
(vi) so long as no Default or Event of Default
shall have occurred and be continuing, or would occur as a consequence
thereof, make Restricted Payments in an aggregate amount not to exceed
$10.0 million.
(c) The amount of all Restricted Payments (other than
cash) will be the Fair Market Value on the date of the Restricted Payment of the
securities or Property proposed to be paid, transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment.
SECTION 4.10 LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, Incur or suffer to exist, any Lien (other than
Permitted Liens) upon any of its Property (including Capital Stock of a
Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired,
or any interest therein or any income or profits therefrom.
SECTION 4.11 ASSET SALES.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale
unless:
(i) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to
the Fair Market Value of the Property subject to such Asset Sale;
(ii) at least 75% of the consideration paid to
the Company or such Restricted Subsidiary in connection with such Asset
Sale is in the form of cash, Cash Equivalents or the assumption by the
purchaser of liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or any
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any
Subsidiary Guaranty), pursuant to a customary novation agreement that
releases the Company and the Restricted Subsidiaries from further
liability with respect thereto; and
(iii) the Company delivers an Officers'
Certificate to the Trustee certifying that such Asset Sale complies
with clauses (a)(i) and (a)(ii) above.
(b) The Net Available Cash (or any portion thereof) from
Asset Sales may be applied by the Company or a Restricted Subsidiary, to the
extent the Company or such Restricted Subsidiary elects (or is required by the
terms of any Debt):
(i) to Repay Senior Debt of the Company or any
Subsidiary Guarantor under the Revolving Credit Facility or secured by
the shares of Capital Stock or Property subject to the Asset Sale
(excluding, in any such case, any Debt owed to the Company or an
Affiliate of the Company) and secured by a Lien on such Property senior
to the Liens securing the Notes; or
48
(ii) to reinvest in Additional Assets (including
by means of an Investment in Additional Assets by a Restricted
Subsidiary with Net Available Cash received by the Company or another
Restricted Subsidiary).
(c) Any Net Available Cash from an Asset Sale not applied
in accordance with the preceding paragraph within 365 days from the date of the
receipt of such Net Available Cash shall constitute "Excess Proceeds."
(d) When the aggregate amount of Excess Proceeds exceeds
$5.0 million (taking into account income earned on such Excess Proceeds, if
any), the Company will be required to make an offer to purchase (the "Prepayment
Offer") the Notes which offer shall be in the amount of the Excess Proceeds
(rounded to the nearest $1,000), on a pro rata basis according to principal
amount, at a purchase price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest and Special Interest, if any, to the purchase date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), in accordance with
the procedures (including prorating in the event of oversubscription) set forth
in this Indenture. To the extent that any portion of the amount of Net Available
Cash remains after compliance with the preceding sentence and provided that all
Holders of Notes have been given the opportunity to tender their Notes for
purchase in accordance with this Indenture, the Company or such Restricted
Subsidiary may use such remaining amount for any purpose permitted by this
Indenture and the amount of Excess Proceeds will be reset to zero.
(e) Within five Business Days after the Company is
obligated to make a Prepayment Offer as described in the preceding paragraph,
the Company shall send a written notice, by first-class mail, to the Holders of
Notes, accompanied by such information regarding the Company and its
Subsidiaries as the Company in good faith believes will enable such Holders to
make an informed decision with respect to such Prepayment Offer. Such notice
shall state, among other things, the purchase price and the purchase date, which
shall be, subject to any contrary requirements of applicable law, a Business Day
no earlier than 30 days nor later than 60 days from the date such notice is
mailed.
(f) Notwithstanding the prior paragraphs of this
covenant, the Company and its Restricted Subsidiaries will be permitted to enter
into and consummate Permitted Asset Swaps without complying with such paragraphs
to the extent that at the time of entering into any such Permitted Asset Swap,
or immediately after giving effect to such Permitted Asset Swap, no Default or
Event of Default shall have occurred or be continuing or would occur as a
consequence thereof.
(g) The Company will comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Notes
pursuant to this Section 4.11. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.11,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 4.11 by
virtue thereof.
(h) To the extent such Assets constitute Collateral under
the Security Documents, the Company will comply with the provisions of Article
11 of this Indenture and the Intercreditor Agreement.
SECTION 4.12 RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist any consensual restriction on the right of any Restricted
Subsidiary to:
(i) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its Capital Stock, or pay
any Debt or other obligation owed, to the Company or any other
Restricted Subsidiary,
(ii) make any loans or advances to the Company or
any other Restricted Subsidiary,
49
(iii) transfer any of its Property to the Company
or any other Restricted Subsidiary, or
(iv) grant Liens to secure the obligations under
this Indenture.
(b) The foregoing limitations will not apply:
(i) with respect to clauses (a)(i), (ii), (iii)
and (iv) above, to restrictions:
(1) in effect on the Issue Date,
(2) relating to Debt of a Restricted
Subsidiary and existing at the time it became a Restricted
Subsidiary if such restriction was not created in connection
with or in anticipation of the transaction or series of
transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Company,
or
(3) resulting from the Refinancing of
Debt Incurred pursuant to an agreement referred to in clause
(b)(i)(1) or (2) above or in clause (b)(ii)(1) or (2) below,
provided such restrictions are no less favorable in any
material respect to the Holders of Notes than those under the
agreement evidencing the Debt so Refinanced, or
(4) existing by reason of applicable
law, regulation, order, approval, license, permit or similar
restriction, in each case issued or imposed by a governmental
authority, and
(ii) with respect to clause (a)(iii) of this
Section 4.12 only, to restrictions:
(1) relating to Debt that is permitted
to be Incurred and secured without also securing the Notes
pursuant to Section 4.8 and Section 4.10 that limit the right
of the debtor to dispose of the Property securing such Debt,
(2) encumbering Property at the time
such Property was acquired by the Company or any Restricted
Subsidiary, so long as such restriction relates solely to the
Property so acquired and was not created in connection with or
in anticipation of such acquisition,
(3) resulting from customary provisions
restricting subletting or assignment of leases or customary
provisions in other agreements that restrict assignment of
such agreements or rights thereunder, or
(4) customary restrictions contained in
asset sale agreements limiting the transfer of such Property
pending the closing of such sale.
SECTION 4.13 TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, conduct any business or enter
into or suffer to exist any transaction or series of transactions (including the
purchase, sale, transfer, assignment, lease, conveyance or exchange of any
Property or the rendering of any service) with, or for the benefit of, any
Affiliate of the Company (an "Affiliate Transaction"), unless:
(i) the terms of such Affiliate Transaction are:
(1) set forth in writing, and
50
(2) no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those
that could be obtained in a comparable arm's-length
transaction with a Person that is not an Affiliate of the
Company,
(ii) if such Affiliate Transaction involves
aggregate payments or value in excess of $2.0 million, the Board of
Directors (including a majority of the disinterested members of the
Board of Directors) approves such Affiliate Transaction and, in its
good faith judgment, believes that such Affiliate Transaction complies
with clause (a)(i)(2) above as evidenced by a Board Resolution promptly
delivered to the Trustee, and
(iii) if such Affiliate Transaction involves
aggregate payments or value in excess of $10.0 million, the Company
obtains a written opinion from an Independent Financial Advisor to the
effect that the consideration to be paid or received in connection with
such Affiliate Transaction is fair, from a financial point of view, to
the Company and the Restricted Subsidiaries, taken as a whole.
(b) Notwithstanding the foregoing limitation, the Company
or any Restricted Subsidiary may enter into or suffer to exist the following,
which shall not be Affiliate Transactions:
(i) any transaction or series of transactions
between the Company and one or more Restricted Subsidiaries or between
two or more Restricted Subsidiaries, provided that no more than 5% of
the total voting power of the Voting Stock (on a fully diluted basis)
of any such Restricted Subsidiary is owned by an Affiliate of the
Company (other than a Restricted Subsidiary);
(ii) any Restricted Payment permitted to be made
pursuant to Section 4.9;
(iii) the payment of compensation (including
amounts paid pursuant to employee benefit plans) for the personal
services of officers and directors of the Company or any of the
Restricted Subsidiaries, so long as the Board of Directors in good
faith shall have approved the terms thereof and deemed the services
theretofore or thereafter to be performed for such compensation to be
fair consideration therefore;
(iv) indemnities of officers, directors and
employees of the Company or any of its Restricted Subsidiaries
permitted by bylaw or statutory provisions; and
(v) the operating agreement between the Company
and dPi as in effect on the Issue Date.
SECTION 4.14 SALE AND LEASEBACK TRANSACTIONS.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with
respect to any Property unless:
(i) the Company or such Restricted Subsidiary
would be entitled to:
(1) Incur Debt in an amount equal to
the Attributable Debt with respect to such Sale and Leaseback
Transaction pursuant to Section 4.8, and
(2) create a Lien on such Property
securing such Attributable Debt without also securing the
Notes pursuant to Section 4.10, and
(ii) such Sale and Leaseback Transaction is
effected in compliance with Section 4.11.
51
SECTION 4.15 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
(a) As of the closing of this offering, dPi will be an
Unrestricted Subsidiary. The Board of Directors may designate any other
Subsidiary of the Company to be an Unrestricted Subsidiary if the Subsidiary to
be so designated:
(i) does not own any Capital Stock or Debt of,
or own or hold any Lien on any Property of, the Company or any other
Restricted Subsidiary,
(ii) has no Debt other than Debt:
(1) as to which neither the Company nor
any of its Restricted Subsidiaries (A) provides credit support
of any kind (including any undertaking, agreement or
instrument that would constitute Debt), (B) is directly or
indirectly liable as a Guarantor or otherwise, or (C)
constitutes the lender; provided, however, the Company or a
Restricted Subsidiary may loan, advance or extend credit to,
or Guarantee the Debt of, an Unrestricted Subsidiary at any
time following the date such Subsidiary is designated as an
Unrestricted Subsidiary in accordance with Section 4.9,
(2) no default with respect to which
(including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary)
would permit, upon notice, lapse of time or both, any holder
of any other Debt (other than the Notes or any Guarantee
permitted by the proviso to the preceding clause (a)(ii)(1))
of the Company or any of its Restricted Subsidiaries to
declare a default on such other Debt or cause the payment
thereof to be accelerated or payable prior to its Stated
Maturity, and
(3) as to which the lenders have been
notified in writing that they will not have any recourse to
the stock or other Property of the Company or any of its
Restricted Subsidiaries, except for Debt that has been
Guaranteed as permitted by the proviso to the preceding clause
(a)(ii)(1);
(iii) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company;
(iv) is a Person with respect to which neither
the Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (1) to subscribe for additional Capital Stock or
(2) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results;
(v) has not Guaranteed or otherwise directly or
indirectly provided credit support for any Debt of the Company or any
of its Restricted Subsidiaries; and
(vi) has at least one director on its board of
directors that is not a director or executive officer of the Company or
any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of the Company or
any of its Restricted Subsidiaries.
(b) Unless so designated as an Unrestricted Subsidiary,
any Person that becomes a Subsidiary of the Company will be classified as a
Restricted Subsidiary; provided, however, that such Subsidiary shall not be
designated a Restricted Subsidiary and shall be automatically classified as an
Unrestricted Subsidiary if either of the requirements set forth in clauses
(d)(x) and (y) below will not be satisfied after giving pro forma effect to such
classification or if such Person is a Subsidiary of an Unrestricted Subsidiary.
52
(c) Except as provided in the second sentence of clause
(a) above, no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary. In addition, neither the Company nor any Restricted Subsidiary shall
at any time be directly or indirectly liable for any Debt that provides that the
holder thereof may (with the passage of time or notice or both) declare a
default thereon or cause the payment thereof to be accelerated or payable prior
to its Stated Maturity upon the occurrence of a default with respect to any
Debt, Lien or other obligation of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary). Upon
designation of a Restricted Subsidiary as an Unrestricted Subsidiary in
compliance with this covenant, such Restricted Subsidiary shall, by execution
and delivery of a supplemental indenture substantially in the form of Exhibit F
hereto, be released from any Subsidiary Guaranty previously made by such
Restricted Subsidiary.
(d) The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if, immediately after giving pro forma
effect to such designation, (x) the Company could Incur at least $1.00 of
additional Debt pursuant to Section 4.8(a)(i) and (y) no Default or Event of
Default shall have occurred and be continuing or would result therefrom.
(e) Any designation or redesignation by the Board of
Directors pursuant to the foregoing provisions will be evidenced to the Trustee
by filing with the Trustee a Board Resolution giving effect to such designation
or redesignation and an Officers' Certificate that:
(i) certifies that such designation or
redesignation complies with the foregoing provisions, and
(ii) gives the effective date of such designation
or redesignation,
such filing with the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such designation or redesignation is made (or,
in the case of a designation or redesignation made during the last fiscal
quarter of the Company's fiscal year, within 90 days after the end of such
fiscal year).
SECTION 4.16 ADDITIONAL COLLATERAL.
From and after the Issue Date, the Company shall, and shall cause each
Subsidiary Guarantor to, grant to the Collateral Agent (or to the Trustee, if
applicable) to secure the obligations under the Notes and the other obligations
under the Indenture, subject to the terms of the Intercreditor Agreement and the
Permitted Liens, a Lien on all newly acquired Collateral or Collateral owned by
a Subsidiary that becomes a Subsidiary Guarantor that was not a Subsidiary
Guarantor on the Issue Date to the extent not already granted by the existing
Security Documents. Without limiting the foregoing, from and after the Issue
Date, in the event the Company or any Subsidiary Guarantor changes its state of
formation, name or corporate structure, it shall give the Collateral Agent 30
days prior notice and execute, file and forward to the Trustee or the Collateral
Agent a copy of such documents or instruments as are necessary to perfect and
maintain the perfection and priority of the Lien intended by the Indenture and
the Security Documents.
SECTION 4.17 REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF
CONTROL.
(a) Upon the occurrence of a Change of Control, each
Holder of Notes shall have the right to require the Company to repurchase all or
any part of such Holder's Notes pursuant to the offer described below (the
"Change of Control Offer") at a purchase price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof, plus accrued and unpaid
interest and Special Interest, if any, to the purchase date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date).
(b) Within 30 days following any Change of Control, the
Company shall:
(i) cause a notice of the Change of Control
Offer to be sent at least once to the Dow Xxxxx News Service or a
similar business news service in the United States; and
53
(ii) send, by first-class mail, with a copy to
the Trustee, to each Holder of Notes, at such Holder's address
appearing in the Security Register, a notice which shall govern the
terms of the Change of Control Offer and shall state:
(1) that a Change of Control has
occurred and a Change of Control Offer is being made pursuant
to this Section 4.17 and that all Notes validly and timely
tendered will be accepted for payment;
(2) the Change of Control Purchase
Price and the purchase date, which shall be, subject to any
contrary requirements of applicable law, a Business Day no
earlier than 30 days nor later than 60 days from the date such
notice is mailed;
(3) the circumstances and relevant
facts regarding the Change of Control (including information
with respect to pro forma historical income, cash flow and
capitalization after giving effect to the Change of Control);
and
(4) the procedures that Holders of
Notes must follow in order to tender their Notes (or portions
thereof) for payment, and the procedures that Holders of Notes
must follow in order to withdraw an election to tender Notes
(or portions thereof) for payment.
(c) The Company will comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Notes
pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.17, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
Section 4.17 by virtue of such compliance.
SECTION 4.18 FUTURE SUBSIDIARY GUARANTORS.
The Company shall cause each Person that becomes a Domestic Restricted
Subsidiary following the Issue Date to execute and deliver to the Trustee a
supplemental indenture to this Indenture, substantially in the form of Exhibit F
hereto, providing for a Subsidiary Guaranty at the time such Person becomes a
Domestic Restricted Subsidiary. In addition, at the time, if ever, that dPi
becomes a guarantor or obligor of the Debt of the Company or any Subsidiary of
the Company under the Revolving Credit Facility, the Company shall, as soon as
it is permitted under Section 4.15(e), designate dPi to be a Restricted
Subsidiary and cause dPi to execute and deliver to the Trustee a supplemental
indenture to this Indenture providing for a Subsidiary Guaranty. dPi will become
a guarantor and will grant a second priority lien on substantially all of its
assets upon audited financial statements of dPi becoming available.
SECTION 4.19 EXCESS CASH FLOW OFFER.
(a) EXCESS CASH FLOW OFFER OBLIGATION.
(i) By April 1 following each fiscal year of the
Company, commencing with April 1, 2004, the Company shall calculate its
Excess Cash Flow for its most recently ended fiscal year and the
Leverage Ratio and Rent-Adjusted Leverage Ratio as of such fiscal year
end and certify to the Trustee in writing the calculations to compute
such Excess Cash Flow, Leverage Ratio and Rent-Adjusted Leverage Ratio,
the amounts, if any, on deposit in the Excess Cash Flow Collateral
Account and the principal amount, if any, of Notes acquired by the
Company or the Subsidiary Guarantors through redemptions, open market
purchases or otherwise during the period commencing on the first day of
such year and ending on the date immediately preceding such
certification. If (a) the Company has any Excess Cash Flow or amounts
on deposit in the Excess Cash Flow Collateral Account, (b) the Leverage
Ratio is equal to or greater than 2.50 to 1.00 or the Rent-Adjusted
Leverage Ratio is equal to or greater than 4.00 to 1.00, and (c) the
Company has cash and Cash Equivalents of more than $10.0 million on the
date immediately preceding such certification, the Company shall repay
Debt (if any) outstanding under the Revolving Credit
54
Facility in an amount equal to the remainder (if positive) of (x) the
amount of such cash and Cash Equivalents minus (y) the sum of $10.0
million plus such Excess Cash Flow. Thereafter, if (a) the Company has
any Excess Cash Flow with respect to such fiscal year plus amounts on
deposit in the Excess Cash Flow Collateral Account of at least $1.0
million in the aggregate and (b) the Coverage Ratio is equal to or
greater than 2.50 to 1.00 or the Rent-Adjusted Leverage Ratio is equal
to or greater than 4.00 to 1.00, then the Company either shall use such
Excess Cash Flow plus such amounts on deposit to repay Debt (if any)
outstanding under the Revolving Credit Facility or, subject to the
limitations in Section 4.19(c) and Section 4.19(d), shall use 75% of
any Excess Cash Flow plus amounts on deposit, in each case, remaining
after repayment of all of the principal amount of Debt outstanding
under the Revolving Credit Facility to make an offer (an "Excess Cash
Flow Offer") to purchase Notes at a purchase price equal to 104.25% of
the aggregate principal amount thereof, plus accrued and unpaid
interest and Special Interest, if any, to the purchase date (subject to
the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date). The Company shall
deposit in the Excess Cash Flow Collateral Account all of the portion
of the 75% of such remaining Excess Cash Flow not used to purchase
Notes pursuant to the Excess Cash Flow Offer. The Company may use 25%
of the Excess Cash Flow remaining with respect to such fiscal year
after repayment of Debt outstanding under the Revolving Credit Facility
for any purpose permitted by the Indenture.
(ii) Not later than April 1 following the most
recently ended fiscal year, the Company shall commence an Excess Cash
Flow Offer by sending, by first-class mail, with a copy to the Trustee,
to each Holder of Notes, at such Holder's address appearing in the
Security Register, a notice, which shall govern the terms of the Excess
Cash Flow Offer and shall state:
(1) that an Excess Cash Flow Offer is
being made pursuant to Section 4.19 of this Indenture, the
principal amount of Notes which shall be accepted for payment
and that all Notes validly and timely tendered will be
accepted for payment on a pro rata basis (or by such other
method as may be required by law);
(2) the purchase price and the purchase
date; and
(3) the procedures that Holders of
Notes must follow in order to tender their Notes (or portions
thereof) for payment and the procedures that Holders of Notes
must follow in order to withdraw an election to tender Notes
(or portions thereof) for payment.
(iii) Each Excess Cash Flow Offer shall remain
open for a period of 20 Business Days and no longer, unless a longer
period is required by law (the "Excess Cash Flow Offer Period"). Not
later than the fifth business day after the termination of the Excess
Cash Flow Period (the "Excess Cash Flow Payment Date"), the Company
shall (1) accept for payment, on a pro rata basis to the extent
necessary (unless some other method is required by law), the Notes or
portions thereof tendered pursuant to the Excess Cash Flow Offer, (2)
deposit with the Paying Agent money sufficient to pay the purchase
price of all Notes or portions thereof so accepted and (3) deliver to
the Trustee the Notes so accepted, together with an Officers'
Certificate stating that the Notes or portions thereof tendered to the
Company are accepted for payment. The Paying Agent shall promptly mail
to each Holder of Notes so accepted payment in an amount equal to the
purchase price of such Notes, including accrued and unpaid interest and
Special Interest, if any, and the Company shall issue new notes, and
the Trustee shall promptly authenticate and mail such new notes to such
Holders, in a principal amount equal to the unpurchased portion of the
Notes surrendered.
(iv) The Company shall make a public announcement
of the results of the Excess Cash Flow Offer as soon as practicable
after the Excess Cash Flow Payment Date. For purposes of this Section
4.19, the Trustee shall act as the Paying Agent.
(v) The Company will comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act
and any other securities laws and regulations in connection with the
repurchase of Notes pursuant to an Excess Cash Flow Offer. To the
extent that the provisions of any securities laws or regulations
conflict with the provisions of this Section 4.19, the Company will
comply
55
with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.19 by
virtue of such compliance.
(b) EXCESS CASH FLOW COLLATERAL ACCOUNT.
(i) The Company shall deposit all of the portion
of the 75% of the Excess Cash Flow remaining after payment of Debt
outstanding under the Revolving Credit Facility and thereafter not used
to purchase Notes pursuant to Section 4.19(a)(i) into a securities
account styled the "Rent-Way Excess Cash Flow Collateral Account" (such
account being the "Excess Cash Flow Collateral Account") maintained by
the Company with the Collateral Agent or other securities intermediary
selected by the Collateral Agent, provided that such Collateral Agent
or securities intermediary shall have a combined capital and surplus of
at least $250.0 million and shall have a long-term debt rating of at
least "A" by Xxxxx'x (or, solely in the case of Manufacturers and
Traders Trust Company, "A2") and at least "A" by S&P, such Excess Cash
Flow Collateral Account shall be under the exclusive dominion and
control of the Collateral Agent, although such account shall be subject
to the First Priority Liens of the lenders under the Revolving Credit
Facility. All amounts on deposit in the Excess Cash Flow Collateral
Account shall be treated as financial assets and cash funds on deposit
in the Excess Cash Flow Collateral Account may be invested at the
direction of the Company in Cash Equivalents. The Company shall be (A)
permitted to use such Excess Cash Flow on deposit in such account only
to repay Debt under the Revolving Credit Facility and to acquire Notes
through redemptions, open market purchases or otherwise and (B)
required to conduct Excess Cash Flow Offers with respect to subsequent
fiscal years based on the aggregate amount of Excess Cash Flow on
deposit in such account and the Excess Cash Flow for such subsequent
fiscal year as herein provided.
(ii) Any such funds will be released to the
Company by its delivering to the Collateral Agent and the Trustee an
Officers' Certificate stating that:
(1) no Event of Default under this
Indenture or event of default under the Revolving Credit
Facility has occurred and is continuing as of the date of the
proposed release;
(2) such funds will be applied in
accordance with Section 4.19 of this Indenture;
(3) the Company and the Subsidiary
Guarantors have complied with all other conditions precedent
in this Indenture relating to the release in question; and
(4) the Company and the Subsidiary
Guarantors have delivered all documentation required by the
TIA, if any, prior to the release of such funds by the
Collateral Agent to the Collateral Agent and the Trustee.
(iii) Notwithstanding the foregoing, so long as
the Intercreditor Agreement is in effect the Excess Cash Flow
Collateral Account shall be maintained under the control of the Senior
Collateral Agent provided the foregoing will not relieve the Company of
complying with the provisions of this Section 4.19(b) while such
account is controlled by the Senior Collateral Agent.
(c) REDUCTION OF EXCESS CASH FLOW OFFER OBLIGATION. The
principal amount of Notes required to be purchased pursuant to each Excess Cash
Flow Offer shall be reduced by the principal amount of Notes acquired by the
Company or the Subsidiary Guarantors through redemptions, open market purchases
or otherwise (including, without limitation, pursuant to a Change of Control
Offer or a Prepayment Offer) during the period commencing on the first day of
the fiscal year preceding such Excess Cash Flow Offer and ending on the day
immediately prior to the commencement of such Excess Cash Flow Offer.
(d) TERMINATION OF EXCESS CASH FLOW OFFER OBLIGATION. All
of the Company's obligations under this Section 4.19 shall terminate upon the
first fiscal year end of the Company at
56
which both (a) the Leverage Ratio is less than 2.50 to 1.00 and (b) the
Rent-Adjusted Leverage Ratio is less than 4.00 to 1.00.
SECTION 4.20 MAINTENANCE OF INSURANCE AND PROPERTIES.
The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain their properties and assets in normal working order
and condition as on the Closing Date (reasonable wear and tear excepted) and
make all necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole;
provided, however, that nothing herein shall prevent the Company or any of its
Restricted Subsidiaries from discontinuing any maintenance of any such
properties if such discontinuance is desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole. The Company shall,
and shall cause each of its Restricted Subsidiaries to, maintain liability,
casualty and other insurance (including self-insurance consistent with prior
practice) with responsible insurance companies in such amounts and against such
risks as is in accordance with customary industry practice in the general areas
in which the Company and its Restricted Subsidiaries operate and otherwise as
provided in the Security Documents.
SECTION 4.21 LIMITATION ON IMPAIRMENT OF LIEN; FURTHER ASSURANCES.
(a) Neither the Company nor any of its Subsidiaries will
take or omit to take any action which action or omission would have the result
of adversely affecting or impairing the Lien in favor of the Collateral Agent
(or the Trustee, if applicable), under the Security Documents or the priority
thereof; and, neither the Company nor any of its Subsidiaries shall grant to any
Person, or suffer any Person (other than the Company and its Restricted
Subsidiaries) to have (other than to the Collateral Agent, the lenders under the
Revolving Credit Facility, the Trustee and the Holders) any interest whatsoever
in the Collateral other than Permitted Liens. Neither the Company nor any of its
Subsidiaries will enter into any agreement or instrument that by its terms
requires the proceeds received from any sale of Collateral to be applied to
repay, redeem, defease or otherwise acquire or retire any Debt, other than as
contemplated by the Revolving Credit Agreement, the Intercreditor Agreement,
this Indenture and the Security Documents.
(b) The Company shall, and shall cause each Subsidiary
Guarantor to, at their sole cost and expense, execute and deliver all such
agreements and instruments as the Collateral Agent or the Trustee shall
reasonably request (but the Trustee is not required to so request) to more fully
or accurately describe the property intended to be Collateral or the obligations
intended to be secured by the Security Documents. The Company shall, and shall
cause each Subsidiary Guarantor to, at their sole cost and expense, file any
such notice filings or other agreements or instruments as may be reasonably
necessary or desirable under applicable law to perfect the Liens created by the
Security Documents at such times and at such places as the Collateral Agent or
the Trustee may reasonably request (but the Trustee is not required to so
request).
ARTICLE 5.
SUCCESSORS
SECTION 5.1 MERGER, CONSOLIDATION, OR SALE OF PROPERTY.
(a) The Company shall not merge, consolidate or
amalgamate with or into any other Person (other than a merger of a Wholly Owned
Restricted Subsidiary into the Company) or sell, transfer, assign, lease, convey
or otherwise dispose of all or substantially all its Property in any one
transaction or series of transactions unless:
(i) the Company shall be the Surviving Person or
the Surviving Person (if other than the Company) formed by such merger,
consolidation or amalgamation or to which such sale, transfer,
assignment, lease, conveyance or disposition is made shall be a
corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia;
57
(ii) the Surviving Person (if other than the
Company) expressly assumes, by supplemental indenture substantially in
the form of Exhibit F hereto, executed and delivered to the Trustee by
such Surviving Person, the due and punctual payment of the principal
of, and premium, if any, and interest and Special Interest, if any, on,
all the Notes, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture to be performed by the Company;
(iii) in the case of a sale, transfer, assignment,
lease, conveyance or other disposition of all or substantially all the
Property of the Company, such Property shall have been transferred as
an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect
to such transaction or series of transactions on a pro forma basis (and
treating, for purposes of this clause (a)(iv) and clauses (a)(v) and
(vi) below, any Debt that becomes, or is anticipated to become, an
obligation of the Surviving Person or any Restricted Subsidiary as a
result of such transaction or series of transactions as having been
Incurred by the Surviving Person or such Restricted Subsidiary at the
time of such transaction or series of transactions), no Default or
Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such
transaction or series of transactions on a pro forma basis, the Company
or the Surviving Person, as the case may be, would be able to Incur at
least $1.00 of additional Debt under Section 4.8(a)(i);
(vi) the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction and the supplemental
indenture, if any, in respect thereto comply with this Section 5.1(a)
and that all conditions precedent herein provided for relating to such
transaction or series of transactions have been satisfied; and
(vii) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes as a
result of such transaction 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 transaction had not occurred.
(b) The Company shall not permit any Subsidiary Guarantor
to merge, consolidate or amalgamate with or into any other Person (other than a
merger of a Wholly Owned Restricted Subsidiary into such Subsidiary Guarantor or
the Company) or sell, transfer, assign, lease, convey or otherwise dispose of
all or substantially all its Property in any one transaction or series of
transactions unless:
(i) the Surviving Person (if other than the
Subsidiary Guarantor) formed by such merger, consolidation or
amalgamation or to which such sale, transfer, assignment, lease,
conveyance or disposition is made shall be a corporation, company
(including a limited liability company) or partnership organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia;
(ii) the Surviving Person (if other than the
Subsidiary Guarantor) expressly assumes, by supplemental indenture in
form satisfactory to the Trustee, executed and delivered to the Trustee
by such Surviving Person, the due and punctual performance and
observance of all the obligations of the Subsidiary Guarantor under its
Subsidiary Guaranty;
(iii) in the case of a sale, transfer, assignment,
lease, conveyance or other disposition of all or substantially all the
Property of such Subsidiary Guarantor, such Property shall have been
transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately before and after giving effect
to such transaction or series of transactions on a pro forma basis (and
treating, for purposes of this clause (b)(iv) and clauses (b)(v) and
58
(vi) below, any Debt that becomes, or is anticipated to become, an
obligation of the Surviving Person, the Company or any Restricted
Subsidiary as a result of such transaction or series of transactions as
having been Incurred by the Surviving Person, the Company or such
Restricted Subsidiary at the time of such transaction or series of
transactions), no Default or Event of Default shall have occurred and
be continuing;
(v) immediately after giving effect to such
transaction or series of transactions on a pro forma basis, the Company
would be able to Incur at least $1.00 of additional Debt under Section
4.8(a)(i);
(vi) the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction or series of transactions
and the Subsidiary Guaranty, if any, in respect thereto comply with
this covenant and that all conditions precedent herein provided for
relating to such transaction or series of transactions have been
satisfied; and
(vii) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes as a
result of such transaction 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 transaction had not occurred.
The preceding clause (b) (other than clause (b)(iv)) shall not apply to
any transaction or series of transactions which constitutes an Asset Sale if the
Company has complied with Section 4.11.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.
The Surviving Person shall succeed to, and be substituted for, and may
exercise every right and power of the Company under this Indenture (or of the
Subsidiary Guarantor under the Subsidiary Guaranty, as the case may be), but the
predecessor Company (or Subsidiary Guarantor) in the case of:
(a) a sale, transfer, assignment, conveyance or other
disposition (unless such sale, transfer, assignment, conveyance or other
disposition is of all the assets of the Company (or Subsidiary Guarantor) as an
entirety or virtually as an entirety), or
(b) a lease,
shall not be released from any of the obligations or covenants under this
Indenture, including with respect to the payment of the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
(a) Each of the following is an "Events of Default" in
respect of the Notes:
(i) failure to make the payment of any interest
or Special Interest, if any, on the Notes issued under this Indenture
when the same becomes due and payable, and such failure continues for a
period of 30 days;
(ii) failure to make the payment of any principal
of, or premium, if any, on, any of the Notes issued under this
Indenture when the same becomes due and payable at its Stated Maturity,
upon acceleration, redemption, optional redemption, required repurchase
or otherwise;
(iii) failure to comply with Article 5;
59
(iv) failure to comply with any other covenant or
agreement in the Notes, this Indenture or any Security Document (other
than a failure that is the subject of the foregoing clauses (a)(i),
(ii) or (iii)) and such failure continues for 30 days after written
notice is given to the Company as provided in clause (b) below;
(v) a default under any Debt by the Company or
any Restricted Subsidiary that results in acceleration of the maturity
of such Debt, or failure to pay any such Debt at maturity, in an
aggregate amount greater than $10.0 million or its foreign currency
equivalent at the time (the "cross acceleration provisions");
(vi) any judgment or judgments for the payment of
money in an aggregate amount in excess of $10.0 million (or its foreign
currency equivalent at the time) that shall be rendered against the
Company or any Restricted Subsidiary and that shall not be waived,
satisfied or discharged for any period of 30 consecutive days during
which a stay of enforcement shall not be in effect (the "judgment
default provisions");
(vii) the Company or any Significant Subsidiary or
group of Restricted Subsidiaries that, taken together (as of the latest
audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary (a
"Subsidiary Group"), pursuant to or within the meaning of any
Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order
for relief against it in an involuntary case,
(3) consents to the appointment of a
custodian of it or substantially all of its property,
(4) makes a general assignment for the
benefit of its creditors, or
(5) generally is not paying its debts
as they become due; and
(viii) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(1) is for relief against the Company,
any Significant Subsidiary or any Subsidiary Group in an
involuntary case,
(2) appoints a custodian of the
Company, or any Significant Subsidiary or any Subsidiary Group
for all or substantially all of the property of the Company,
any Significant Subsidiary or any Subsidiary Group, or
(3) orders the liquidation of the
Company, any Significant Subsidiary or any Subsidiary Group
and the order or decree remains unstayed and in effect for 60
days; and
(ix) any Subsidiary Guaranty or any of the
Security Documents ceases to be in full force and effect (except as
contemplated by the terms of this Indenture) or any of the Subsidiary
Guarantees or the Security Documents is declared null and void or
invalid and unenforceable, or any Subsidiary Guarantor denies or
disaffirms its obligations under this Indenture or its Subsidiary
Guaranty or any obligor denies or disaffirms its liability under any
Security Document to which it is a party.
(b) A Default under clause (a)(iv) above is not an Event
of Default until the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding notify the Company of the
60
Default and the Company does not cure such Default within the time specified
after receipt of such notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of Default."
SECTION 6.2 ACCELERATION.
(a) If an Event of Default with respect to the Notes
(other than an Event of Default specified in Section 6.1(a)(vii) or Section
6.1(a)(viii) shall have occurred and be continuing, the Trustee or the
registered Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding may declare to be immediately due and payable, by written
notice to the Company (and to the Trustee if given by the Holders of the Notes),
the principal amount of all the Notes then outstanding, plus accrued but unpaid
interest and Special Interest, if any, to the date of acceleration. In case an
Event of Default specified in Section 6.1(a)(vii) or Section 6.1(a)(viii) with
respect to the Company, any Significant Subsidiary or any Subsidiary Group shall
occur, such amount with respect to all the Notes shall become due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes. Holders may not enforce this Indenture or the Notes
except as provided in this Indenture.
(b) In the event of a declaration of acceleration of the
Notes because an Event of Default has occurred and is continuing as a result of
the acceleration of any Debt described in Section 6.1(a)(v), the declaration of
acceleration of the Notes shall be automatically annulled if the holders of a
majority in aggregate principal amount of the Notes then outstanding have
rescinded the declaration of acceleration in respect of such Debt within 30 days
of the date of such declaration and if (i) the annulment of the acceleration of
the Notes would not conflict with any judgment or decree of a court of competent
jurisdiction, and (ii) all existing Events of Default, except nonpayment of
principal or interest on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived.
SECTION 6.3 OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy (under this Indenture or otherwise) to
collect the payment of principal or interest, including Special Interest, if
any, on the Notes or to enforce the performance of any provision of the Notes or
this Indenture or the Security Documents.
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.4 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest and Special Interest,
if any, on, the Notes; provided, however, that after any acceleration, but
before a judgment or decree based on acceleration is obtained by the Trustee,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding may rescind and annul such acceleration if all Events of Default,
other than the nonpayment of accelerated principal, premium, if any, or interest
and Special Interest, if any, have been cured or waived as provided in this
Indenture. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5 CONTROL BY MAJORITY.
Subject to Section 7.1, in case an Event of Default shall occur and be
continuing, the Trustee will be under no obligation to exercise any of its
rights or powers under this Indenture at the request or direction of any of the
Holders of the Notes, unless such Holders shall have offered to the Trustee
reasonable indemnity. Subject to Section
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7.7, the Holders of a majority in aggregate principal amount of the Notes then
outstanding will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Notes.
SECTION 6.6 LIMITATION ON SUITS.
(a) No Holder will have any right to institute any
proceeding with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any remedy hereunder, unless:
(i) such Holder has previously given to the
Trustee written notice of a continuing Event of Default,
(ii) the registered Holders of at least 25% in
aggregate principal amount of Notes then outstanding have made written
request and offered reasonable indemnity to the Trustee to institute
such proceeding as trustee,
(iii) the Trustee shall have failed to institute
such proceeding within 60 days, and
(iv) the Trustee shall not have received from the
registered Holders of a majority in aggregate principal amount of the
Notes then outstanding a direction inconsistent with such request
within such 60-days.
However, the preceding limitations do not apply to a suit instituted by a Holder
of any Note for enforcement of payment of the principal of, and premium, if any,
or interest or Special Interest on, such Note on or after the respective due
dates expressed in such Note.
(b) A Holder may not use this Indenture to affect,
disturb or prejudice the rights of another Holder or to obtain a preference or
priority over another Holder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, and interest and
Special Interest, if any, on, a Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a)(i) or Section
6.1(a)(ii) occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal, premium, if any, and interest, including
Special Interest, if any, remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims, and any custodian in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements
62
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 PRIORITIES.
(a) If the Trustee collects any money pursuant to this
Article 6, it shall pay out the money in the following order:
(i) first to the Trustee, its agents and
attorneys for amounts due under Section 7.7, including payment of all
compensation, expenses and liabilities incurred, and all advances made,
by the Trustee and the costs and expenses of collection;
(ii) second to Holders for amounts due and unpaid
on the Notes for principal, premium, if any, and interest, including
Special Interest, if any, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, including Special Interest,
if any, respectively; and
(iii) third to the Company or to such party as a
court of competent jurisdiction shall direct.
(b) The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 6.10(a).
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
6 ARTICLE 7.
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in its exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
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(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this clause (c) does not limit the effect of
clause (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
clauses (a), (b) and (c) of this Section 7.1.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under this
Indenture at the request or direction of any Holders, unless such Holders shall
have offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel, and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture or the Security Documents, any demand, request, direction or notice
from the Company shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture or the Security
Documents at the request or direction of any of the Holders unless such Holders
64
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default or Event of Default is received by a Responsible Officer of the
Trustee at the Corporate Trust Office of the Trustee, and such notice references
the specific Default or Event of Default, the Notes and this Indenture.
(h) Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
(i) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
(j) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants herein.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Section 7.10 and Section 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture, the Notes or the Security
Documents, it shall not be accountable for the Company's use of the proceeds
from the Notes or any money paid to the Company or upon the Company's direction
under any provision of this Indenture, it shall not be responsible for the use
or application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs unless such Default or Event
of Default has since been cured. Except in the case of a Default or Event of
Default in payment of principal of, premium, if any, or interest, including
Special Interest, if any, on, any Note, the Trustee may withhold notice of any
continuing Default or Event of Default if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interest of the Holders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each May 15 beginning with May
15, 2004, and for so long as Notes remain outstanding, the Trustee shall mail to
the Holders a brief report dated as of such reporting date that complies with
TIA Section 313(a) (but if no event described in TIA Section 313(a) has occurred
within the 12 months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
(b) A copy of each report at the time of its mailing to
the Holders shall be mailed to the Company and filed with the Commission and
each stock exchange on which the Notes are listed in accordance with
65
TIA Section 313(d). The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to
time reasonable compensation for its acceptance of its duties under this
Indenture and services hereunder as agreed to in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee or any
predecessor Trustee against any and all losses, claims, damages, penalties,
fines, liabilities or expenses, including incidental and out-of-pocket expenses
and reasonable attorneys fees ("losses") incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.7) and defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such losses may be attributable to its
negligence, willful misconduct or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel, and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
(c) The obligations of the Company under this Section 7.7
shall survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal of, premium, if any, and interest, including Special Interest, if any,
on, particular Notes. Such Lien shall survive the satisfaction and discharge of
this Indenture.
(e) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(a)(vii) or Section
6.1(a)(viii) occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under any Bankruptcy Law.
(f) The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent applicable.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section 7.8.
(b) The Trustee may resign in writing at any time upon 30
days' prior notice to the Company and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal
amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company in writing. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section
7.10;
(ii) the Trustee is adjudged to be bankrupt or
insolvent, or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
66
(iii) a custodian or public officer takes charge
of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
(d) If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder
who has been a Holder for at least six months, fails to comply with Section
7.10, such Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided,
however, that all sums owing to the Trustee hereunder shall have been paid.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee. As soon as practicable, the successor Trustee shall mail a notice of
its succession to the Company and the Holders. Any such successor must
nevertheless be eligible and qualified under the provisions of Section 7.10.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
(a) There shall at all times be a Trustee hereunder that
is a Person organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
Federal or state authorities and that has a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition.
(b) This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is
subject to TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
67
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option and at any time, elect to have either
Section 8.2 or Section 8.3 be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8.
SECTION 8.2 LEGAL DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, subject to the satisfaction of the conditions set forth in
Section 8.4, the Company shall be deemed to have been discharged from its
obligations with respect to all outstanding Notes, and each Subsidiary Guarantor
shall be deemed to have been discharged from its obligations with respect to its
Subsidiary Guaranty, on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire Debt
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.5 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Notes and this Indenture, and each Subsidiary
Guarantor shall be deemed to have satisfied all its obligations under its
Subsidiary Guaranty and this Indenture (and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in Section 8.4 and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest, including Special Interest, if any, on, such
Notes when such payments are due, (b) the Company's obligations with respect to
such Notes under Article 2 and Section 4.2 (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (d) this Article 8. If the Company exercises under
Section 8.1 the option applicable to this Section 8.2, subject to the
satisfaction of the conditions set forth in Section 8.4, payment of the Notes
may not be accelerated because of an Event of Default. Subject to compliance
with this Article 8, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3.
SECTION 8.3 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.3, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.4, be released from its obligations under the
covenants contained in Section 4.3, Section 4.8 through Section 4.19, Article 10
and Article 11; the operation of Section 6.1(a)(vi), Section 6.1(a)(vii) and
Section 6.1(a)(viii), with respect to Significant Subsidiaries; the operation of
Section 6.1(a)(ix); and the limitations of Section 5.1(a)(v), Section
5.1(a)(vi), Section 5.1(b)(v) and Section 5.1(b)(vi), with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.4
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. If the Company exercises under Section 8.1 the option
applicable to this Section 8.3, subject to the satisfaction of the conditions
set forth in Section 8.4, payment of the Notes may not be accelerated because of
an Event of Default specified in Section 6.1(a)(iv) (with respect to the
covenants contained in Section 4.3, Section 4.8 through Section 4.19, Article 10
and Article 11 only), (a)(v), (a)(vi), (a)(vii), (a)(viii) and (a)(ix) (but in
the case of clauses (a)(vii) and (a)(viii), with respect to Significant
Subsidiaries only), or because of the failure of the Company or the Subsidiary
Guarantors to comply with Section 5.1(a)(v), Section 5.1(a)(vi), Section
5.1(b)(v) and Section 5.1(b)(vi). If the Company exercises its Covenant
Defeasance
68
option, each Subsidiary Guarantor will be released from all its obligations
under its Subsidiary Guaranty and the Lien of the Security Documents securing
the Indenture will be released.
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The Legal Defeasance option or Covenant Defeasance option may be
exercised only if:
(a) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment of principal of,
premium, if any, and interest, including Special Interest, if any, on, the Notes
to be defeased to maturity or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent certified public accountants
expressing their opinion that the payments of principal, premium, if any, and
interest and Special Interest, if any, when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal, premium, if any, and interest and Special Interest,
if any, when due on all the Notes to maturity or redemption, as the case may be;
(c) 123 days pass after the deposit is made and during
the 123-day period no Default described in Section 6.1(a)(vii) or Section
6.1(a)(viii) occurs with respect to the Company or any other Person making such
deposit which is continuing at the end of the period;
(d) no Default or Event of Default has occurred and is
continuing on the date of such deposit and after giving effect thereto;
(e) such deposit does not constitute a default under any
other agreement or instrument binding on the Company;
(f) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(g) in the case of the Legal Defeasance option, the
Company delivers to the Trustee an Opinion of Counsel stating that:
(i) the Company has received from the Internal
Revenue Service a ruling, or
(ii) since the date of this Indenture there has
been a change in the applicable federal income tax law, to the effect,
in either case, that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same time as would have been the case if such
defeasance had not occurred;
(h) in the case of the Covenant Defeasance option, the
Company delivers to the Trustee an Opinion of Counsel to the effect that the
Holders of the Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred; and
(i) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Notes to be defeased have been
complied with as required by this Indenture.
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SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to Section 8.6, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, including Special Interest, if any,
but such money need not be segregated from other funds except to the extent
required by law.
(b) The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
U.S. Government Obligations deposited pursuant to Section 8.4 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
(c) Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any money or U.S. Government Obligations
held by it as provided in Section 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
certification delivered under Section 8.4(b)), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
SECTION 8.6 REPAYMENT TO COMPANY.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest,
including Special Interest, if any, on, any Note and remaining unclaimed for two
years after such principal, premium, if any, or interest, including Special
Interest, if any, has become due and payable shall be paid to the Company on its
request or (if then held by the Company) shall be discharged from such trust;
and the Holder shall thereafter, as an unsecured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining shall be repaid to the Company.
SECTION 8.7 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 8.2 or Section
8.3, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
and each Subsidiary Guarantor's obligations under this Indenture and its
Subsidiary Guaranty shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.2 or Section 8.3 until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.2 or Section 8.3, as the case may be; provided, however, that, if the Company
or any Subsidiary Guarantor makes any payment of principal of, premium, if any,
or interest, including Special Interest, if any, on, any Note following the
reinstatement of its obligations, then it shall be subrogated to the rights of
the Holders to receive such payment from the money held by the Trustee or Paying
Agent.
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES.
(a) Notwithstanding Section 9.2 of this Indenture,
without the consent of any Holder of the Notes, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture, the Security Documents or the Notes to:
(i) cure any ambiguity, omission, defect or
inconsistency in any manner that is not adverse in any material respect
to any Holder of the Notes,
(ii) provide for the assumption by a Surviving
Person of the obligations of the Company under the Indenture or of a
Subsidiary Guarantor under this Indenture and its Subsidiary Guaranty,
(iii) provide for uncertificated Notes in addition
to or in place of certificated Notes (provided that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that the uncertificated Notes are
described in Section 163(f) (2) (B) of the Code),
(iv) add additional Guarantees with respect to
the Notes or to release Subsidiary Guarantors from Subsidiary
Guarantees with respect to the Notes as permitted by the terms of this
Indenture,
(v) add to the covenants of the Company and the
Subsidiary Guarantors for the benefit of the Holders of the Notes or to
surrender any right or power conferred upon the Company or any
Subsidiary Guarantor,
(vi) make any change that does not adversely
affect the rights of any Holder of the Notes,
(vii) make any change to comply with any
requirement of the Commission in connection with the qualification of
this Indenture under the TIA;
(viii) provide for the issuance of Additional Notes
in accordance with this Indenture or
(ix) add any additional assets as Collateral.
(b) Upon the request of the Company accompanied by a
Board Resolution of the Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 9.6, the Trustee shall join with the Company and
the Subsidiary Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES.
(a) Except as provided in Section 9.2(f), the Company,
the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture, the Security Documents and the Notes with the consent of the
registered Holders of at least a majority in aggregate principal amount of the
Notes, including Additional Notes, if any, then outstanding voting as a single
class (including consents obtained in connection with a tender offer or exchange
offer for the Notes), and, subject to Section 6.4 and Section 6.7, any existing
Default or Event of Default or compliance with any provision of this Indenture,
the Security Documents or the Notes may be waived with the
71
consent of the Holders of at least a majority in aggregate principal amount of
the Notes, including Additional Notes, if any, then outstanding voting as a
single class (including consents obtained in connection with a tender offer or
exchange offer for the Notes).
(b) Upon the request of the Company accompanied by a
Board Resolution of the Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
9.6, the Trustee shall join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
(c) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to consent to
any indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date, provided that unless such consent
shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 90 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
(d) It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(e) After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to each registered Holder of
the Notes at such Holder's address appearing in the Security Register a notice
briefly describing such amendment, supplement or waiver. Any failure of the
Company to give such notice to all Holders of the Notes, or any defect therein,
shall not, however, in any way impair or affect the validity of the amendment,
supplement or waiver.
(f) Without the consent of each Holder of an outstanding
Note, no amendment, supplement or waiver under this Section 9.2 may:
(i) reduce the amount of Notes whose Holders
must consent to an amendment, supplement or waiver,
(ii) reduce the rate of, or extend the time for
payment of, interest or Special Interest on any Note,
(iii) reduce the principal of or extend the Stated
Maturity of any Note,
(iv) make any Note payable in a currency other
than that stated in the Note,
(v) impair the right of any Holder of the Notes
to receive payment of principal, and interest or Special Interest on
such Holder's Notes on or after the due dates therefor or to institute
suit for the enforcement of any payment on or with respect to such
Holder's Notes or any Subsidiary Guaranty,
(vi) subordinate the Notes or any related
Subsidiary Guaranty to any other obligation of the Company or the
applicable Subsidiary Guarantor,
(vii) release any security interest that may have
been granted in favor of the Holders of the Notes other than pursuant
to the terms of the Security Documents,
(viii) reduce the premium payable upon the
redemption of any Note or change the time at which any Note may be
redeemed pursuant to Section 3.7,
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(ix) at any time after a Change of Control has
occurred, reduce the premium payable upon a Change of Control or change
the time at which the Change of Control Offer relating thereto must be
made or at which the Notes must be repurchased pursuant thereto,
(x) at any time after the Company is obligated
to make a Prepayment Offer with the Excess Proceeds from Asset Sales,
reduce the purchase price payable in connection with a Prepayment Offer
or change the time at which such Prepayment Offer must be made or at
which the Notes must be repurchased pursuant thereto,
(xi) make any change in any Subsidiary Guaranty
that would adversely affect in any material respect the Holders of the
Notes under this Indenture, or
(xii) at any time after the Company is obligated
to make an Excess Cash Flow Offer, reduce the purchase price payable
upon the repurchase of any Note or change the time at which such Excess
Cash Flow Offer must be made or at which the Notes must be repurchased
pursuant thereto.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder that evidences the same debt as the consenting Holder's Note, even if
notation of the consent is not made on any Note. However, any such Holder or
subsequent Holder may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver, supplement or amendment
becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES.
(a) The Trustee may place an appropriate notation about
an amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
(b) Failure to make the appropriate notation or issue a
new Note shall not affect the validity and effect of such amendment, supplement
or waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.1) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
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ARTICLE 10.
SUBSIDIARY GUARANTIES
SECTION 10.1 SUBSIDIARY GUARANTY.
(a) Subject to this Article 10, each of the Subsidiary
Guarantors hereby, jointly and severally, unconditionally Guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes, the Security Documents or the Obligations of the
Company hereunder or thereunder, that: (a) the principal of, premium, if any,
and interest, including Special Interest, if any, on, the Notes shall be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of, premium, if any, and
interest, including Special Interest, if any on, the Notes, if lawful, and all
other Obligations of the Company to the Holders or the Trustee under the Notes,
this Indenture or the Security Documents shall be promptly paid in full or
performed, all in accordance with the terms under the Notes, this Indenture or
the Security Documents; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
Failing payment when due of any amount so Guaranteed or any performance so
Guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and
severally obligated to pay the same immediately. Each Subsidiary Guarantor
agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Each Subsidiary Guarantor hereby agrees that its
Obligations with regard to this Subsidiary Guaranty shall be absolute and
unconditional, irrespective of the validity or enforceability of the Notes, this
Indenture, the Security Documents or the Obligations of the Company under this
Indenture, the absence of any action to enforce the same, any waiver,
modification or indulgence granted to the Company with respect to the same by
the Holders or the Trustee, the recovery of any judgment against the Company or
any other obligor with respect to this Indenture, the Notes, the Security
Documents or the Obligations of the Company under this Indenture or the Notes,
any action to enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or equitable discharge or
defense of a Subsidiary Guarantor. Each Subsidiary Guarantor further, to the
extent permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited to:
(i) any right to require any of the Trustee, the Holders or the Company (each a
"Benefited Party"), as a condition of payment or performance by such Subsidiary
Guarantor, to (1) proceed against the Company, any other guarantor (including
any other Subsidiary Guarantor) of the Obligations under the Subsidiary
Guaranties or any other Person, (2) proceed against or exhaust any security held
from the Company, any such other guarantor or any other Person, (3) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Benefited Party in favor of the Company or any other Person, or (4)
pursue any other remedy in the power of any Benefited Party whatsoever; (ii) any
defense arising by reason of the incapacity, lack of authority or any disability
or other defense of the Company including any defense based on or arising out of
the lack of validity or the unenforceability of the Obligations under the
Subsidiary Guaranties or any agreement or instrument relating thereto or by
reason of the cessation of the liability of the Company from any cause other
than payment in full of the Obligations under the Subsidiary Guaranties; (iii)
any defense based upon any statute or rule of law which provides that the
Obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (iv) any defense based upon any
Benefited Party's errors or omissions in the administration of the Obligations
under the Subsidiary Guaranties, except behavior which amounts to bad faith;
(v)(1) any principles or provisions of law, statutory or otherwise, which are or
might be in conflict with the terms of the Subsidiary Guaranties and any legal
or equitable discharge of such Subsidiary Guarantor's Obligations hereunder, (2)
the benefit of any statute of limitations affecting such Subsidiary Guarantor's
liability hereunder or the enforcement hereof, (3) any rights to set-offs,
recoupments and counterclaims and (4) promptness, diligence and any requirement
that any Benefited Party protect, secure, perfect or insure any security
interest or Lien on any Property subject thereto; (vi) notices, demands,
presentations, protests, notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance of the Subsidiary Guaranties,
notices of default under the Notes or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Obligations
under the Subsidiary Guaranties or any agreement related thereto, and notices of
any extension of credit to the Company and any right to consent to any thereof;
(vii) to the extent permitted under applicable law, the benefits of any "One
Action" rule; and (viii) any defenses or benefits that may be derived from or
afforded by law
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which limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of the Subsidiary Guaranties. Each Subsidiary Guarantor
hereby covenants that its Subsidiary Guaranty shall not be discharged except as
provided in Section 10.5 or by complete performance of the Obligations contained
in its Subsidiary Guaranty and this Indenture.
(c) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Subsidiary Guarantors or any
custodian, trustee, liquidator or other similar official acting in relation to
either the Company or the Subsidiary Guarantors, any amount paid by either to
the Trustee or such Holder, this Subsidiary Guaranty, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(d) Each Subsidiary Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any Obligations Guaranteed hereby until payment in full of all Obligations
Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Obligations Guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of this Subsidiary
Guaranty, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations Guaranteed hereby and (ii) in
the event of any declaration of acceleration of such Obligations as provided in
Article 6, such Obligations (whether or not due and payable) shall forthwith
become due and payable by such Subsidiary Guarantor for the purpose of this
Subsidiary Guaranty. Each Subsidiary Guarantor that makes a payment or
distribution under a Subsidiary Guaranty shall be entitled to a contribution
from each other Subsidiary Guarantor and the Company in a pro rata amount based
on the proportion that the net worth of the Company or the relevant Subsidiary
Guarantor represents relative to the aggregate net worth of the Company and all
of the Subsidiary Guarantors combined.
SECTION 10.2 LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guaranty of such Subsidiary Guarantor not constitute a fraudulent transfer or
conveyance for purposes of any Federal or state law to the extent applicable to
any Subsidiary Guaranty. To effectuate the foregoing intention, the Trustee, the
Holders and the Subsidiary Guarantors hereby irrevocably agree that the
Obligations of such Subsidiary Guarantor under this Article 10 shall be limited
to the maximum amount as shall, after giving effect to such maximum amount and
all other contingent and fixed liabilities of such Subsidiary Guarantor that are
relevant under such laws, including, if applicable, its Guarantee of all
Obligations under the Revolving Credit Facility, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Subsidiary Guarantor in respect of the Obligations of such
other Subsidiary Guarantor under this Article 10, result in the Obligations of
such Subsidiary Guarantor under its Subsidiary Guaranty not constituting a
fraudulent transfer or conveyance under federal or state law.
SECTION 10.3 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTY.
(a) To evidence its Subsidiary Guaranty set forth in this
Article 10, each Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guaranty in substantially the form included in Exhibit E shall be
endorsed by the manual or facsimile signature of an Officer of such Subsidiary
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of such Subsidiary Guarantor by the manual
or facsimile signature of an Officer of the Subsidiary Guarantor.
(b) Each Subsidiary Guarantor hereby agrees that its
Subsidiary Guaranty set forth in Section 10.1 hereof shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of
such Subsidiary Guaranty.
(c) If an Officer whose signature is on this Indenture or
on the notation of Subsidiary Guaranty no longer holds that office at the time
the Trustee authenticates the Note on which a notation of Subsidiary Guaranty is
endorsed, the Subsidiary Guaranty shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guaranty set forth in this Indenture on behalf of each Subsidiary
Guarantor.
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SECTION 10.4 ADDITIONAL SUBSIDIARY GUARANTORS.
The Company covenants and agrees that it will cause any Person which
becomes obligated to Guarantee the Notes pursuant to the terms of Section 4.18
hereof to execute a supplemental indenture, substantially in the form of Exhibit
F hereto, pursuant to which such Subsidiary Guarantor shall Guarantee the
Obligations of the Company under the Notes and this Indenture in accordance with
this Article 10 with the same effect and to the same extent as if such Person
had been named herein as a Subsidiary Guarantor.
SECTION 10.5 RELEASE OF SUBSIDIARY GUARANTOR.
A Subsidiary Guarantor shall be released from all of its Obligations
under its Subsidiary Guaranty and this Indenture if:
(a) the Company or such Subsidiary Guarantor has sold all
or substantially all of the Property of a Subsidiary Guarantor; or
(b) the Company or such Subsidiary Guarantor has sold all
of the Capital Stock of a Subsidiary Guarantor owned by them, in each case in a
transaction in compliance with Section 4.11 or Section 5.1(b) (as applicable);
and in each such case, the Subsidiary Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to such transactions have been
complied with.
Notwithstanding the foregoing, upon designation of a Restricted Subsidiary as an
Unrestricted Subsidiary in compliance with Section 4.15, such Restricted
Subsidiary shall, by execution and delivery of a supplemental indenture,
substantially in the form of Exhibit F hereto, be released from any Subsidiary
Guaranty previously made by such Restricted Subsidiary and its obligations under
this Indenture.
ARTICLE 11.
COLLATERAL AND SECURITY DOCUMENTS
SECTION 11.1 COLLATERAL DOCUMENTS.
(a) The due and punctual payment of the principal and
premium, if any, of, and interest on, the Notes when and as the same shall be
due and payable, whether on an interest payment date, at Stated Maturity, by
acceleration, repurchase, redemption or otherwise, interest on the overdue
principal of and interest, including Special Interest, if any (to the extent
permitted by law), on the Notes and performance of all other Obligations under
this Indenture or the Security Documents, shall be secured as provided in the
Security Documents.
(b) The Company shall, and shall cause each of its
Subsidiary Guarantors to, do or cause to be done all such acts and things as may
be necessary or proper, or as may be required by the provisions of the Security
Documents, to assure and confirm to the Collateral Agent the security interest
in the Collateral contemplated hereby and by the Security Documents, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein and therein expressed. The Company shall, and shall
cause each of its Subsidiary Guarantors to, take, upon request of the Trustee or
the Collateral Agent (but the Trustee or Collateral Agent is not required to so
request), any and all actions required to cause the Security Documents to create
and maintain, as security for the Obligations, valid and enforceable, perfected
(except as expressly provided herein or therein), Liens in and on all the
Collateral, in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons, and subject to no other Liens, other than as
provided herein and therein.
(c) Each Holder of a Note, by its acceptance thereof,
consents and agrees to the terms of the Security Documents and the Intercreditor
Agreement as the same may be in effect or may be amended from time to time in
accordance with their terms and authorizes and directs (i) the Collateral Agent,
with respect to each of the Security Documents to which it is a party and the
Intercreditor Agreement, and (ii) the Trustee, with respect to the Intercreditor
Agreement, to perform their respective obligations and exercise their respective
rights thereunder in
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accordance therewith; provided, however, that upon qualification of this
Indenture with the TIA, if any provision of the Intercreditor Agreement limits,
qualifies or conflicts with the duties imposed by the provisions of the TIA, the
TIA shall control.
(d) The assets constituting the Collateral will include
all of the assets of the Company and such Subsidiary Guarantor (whether now
owned or hereafter arising or acquired) that secure the Revolving Credit
Facility or are covered by a Security Document, including the following:
(i) substantially all of the Company's and each
Subsidiary Guarantor's existing and after acquired real,
personal, tangible and intangible property, including, without
limitation, leasehold interests (exclusive of real property
leases), fee properties, accounts receivables, contracts,
rental contracts and agreements, inventory, cash and deposit
accounts, equipment, intellectual property, insurance
policies, permits, commercial tort claims, chattel paper,
letter of credit rights, supporting obligations, general
intangibles and proceeds and products from any and all of the
foregoing;
(ii) all of the Capital Stock of existing and
future Subsidiary Guarantors and dPi owned directly or
indirectly by the Company and its Restricted Subsidiaries; and
(iii) all amounts deposited in the Excess Cash
Flow Collateral Account;
all of the above assets, the "Collateral."
SECTION 11.2 POSSESSION, USE AND RELEASE OF COLLATERAL.
(a) So long as no event of default has occurred and is
continuing under the Revolving Credit Facility and no Event of Default has
occurred and is continuing under this Indenture and subject to certain terms and
conditions in the Revolving Credit Facility, this Indenture and the Security
Documents, the Company and the Subsidiary Guarantors will have the right to
remain in possession and retain control of the Collateral (other than any cash,
securities, obligations and cash equivalents constituting part of the Collateral
and deposited with the Senior Collateral Agent, Collateral Agent or Paying Agent
in accordance with the provisions of the Security Documents and the Excess Cash
Flow Collateral Account Agreement and other than as set forth in the Security
Documents and the Excess Cash Flow Collateral Account Agreement), to freely
operate the Collateral and to collect, invest and dispose of any income
therefrom.
(b) Upon compliance by the Company with the conditions
set forth below in respect of any Asset Sale of Collateral (including the
disposition of the Capital Stock of a Restricted Subsidiary), to the extent
permitted under the Intercreditor Agreement, the Collateral Agent will release
the Released Interests (as defined below) from the Lien securing this Indenture
and the Security Documents and reconvey the Released Interests to the Company or
such other Person as the Company may direct in writing. The Company will have
the right to obtain a release of items of Collateral subject to any Asset Sale
or owned by a Subsidiary Guarantor, all of the Capital Stock of which is the
subject of an Asset Sale (the "Released Interests"), upon compliance with the
condition that the Company deliver to the Collateral Agent the following:
(i) a notice from the Company requesting the
release of Released Interests:
(1) describing the proposed Released
Interests;
(2) specifying the value of such
Released Interests on a date within 60 days of the notice (the
"Valuation Date");
(3) stating that the purchase price or
other property to be received in consideration for such
Released Interests is at least equal to the fair market value
of the Released Interests;
77
(4) stating that the release of such
Released Interests will not interfere with the Collateral
Agent's ability to materially realize the value of the
remaining Collateral and will not materially impair the
maintenance and operation of the remaining Collateral;
(5) confirming the Asset Sale of, or an
agreement to enter into an Asset Sale for, such Released
Interests is a bona fide transaction with a Person that is not
an Affiliate of the Company or, in the event that such Asset
Sale is to a Person that is an Affiliate, confirming that such
Asset Sale is made in compliance with Section 4.13 and the
Revolving Credit Facility, to the extent applicable; and
(6) if there is to be a substitution of
property for the Collateral subject to the Asset Sale,
specifying the property intended to be substituted for the
Collateral to be disposed of;
(ii) an Officers' Certificate stating that:
(1) such Asset Sale complies with the
terms and conditions of this Indenture with respect to Asset
Sales and Restricted Payments and, to the extent applicable,
the Revolving Credit Facility;
(2) all Net Available Cash from such
Asset Sale will be applied pursuant to the provisions of this
Indenture and, to the extent applicable, the Revolving Credit
Facility;
(3) there is no Event of Default under
this Indenture or event of default under the Revolving Credit
Facility in effect or continuing on the date thereof or the
date of such Asset Sale;
(4) the release of the Collateral will
not result in an Event of Default under this Indenture or
event of default under the Revolving Credit Facility; and
(5) upon the delivery of such Officers'
Certificate, the Company shall have complied with all
conditions precedent in this Indenture and, to the extent
applicable, the Revolving Credit Facility, relating to the
release in question; and
(iii) all other documentation required by the TIA,
if any, prior to the release of Collateral by the Trustee and, in the
event there is to be a contemporaneous substitution of property for the
Collateral subject to the Asset Sale, all documentation necessary to
effect the substitution of such new Collateral.
(c) Notwithstanding clause (b) above, so long as no Event
of Default under this Indenture or event of default under the Revolving Credit
Facility shall have occurred and be continuing, the Company and the Subsidiary
Guarantors may engage in the following ordinary course activities in respect of
the Collateral, subject to the limited dollar amounts specified by the TIA, and
provided such activities would not result in an Event of Default hereunder or an
event of default under the Revolving Credit Agreement:
(i) sell or otherwise dispose of any property
subject to the Liens of the Revolving Credit Facility, the Indenture
and the Security Documents, in the ordinary course or which may have
become worn out or obsolete;
(ii) abandon, terminate, cancel, release or make
alterations in or substitutions of any leases or contracts subject to
the Liens of the Revolving Credit Facility, the Indenture or any of the
Security Documents;
78
(iii) surrender or modify any franchise, license
or permit subject to the Liens of the Revolving Credit Facility, the
Indenture or any of the Security Documents which any of them may own or
under which any of them may be operating;
(iv) alter, repair, replace, change the location
or position of or add to the structures, machinery, systems, equipment,
fixtures and appurtenances of any of them;
(v) demolish, dismantle, tear down, scrap or
abandon any obsolete Collateral;
(vi) grant leases or subleases in respect of real
property to the extent any of the preceding does not constitute an
Asset Sale; and
(vii) such other ordinary course of business
activities specifically permitted by the Security Documents.
SECTION 11.3 DEPOSIT, USE AND RELEASE OF TRUST MONEYS.
(a) The Net Available Cash from any Asset Sale involving
Collateral shall be deposited so long as any Debt is outstanding under the
Revolving Credit Facility with the Senior Collateral Agent or at any securities
intermediary selected by the Senior Collateral Agent in accordance with the
Revolving Credit Facility and the Intercreditor Agreement and otherwise into a
securities account styled the "Rent-Way Collateral Account" (such account being
the "Collateral Account") maintained by the Collateral Agent at its corporate
trust offices or at any securities intermediary selected by the Collateral
Agent, provided that such Collateral Agent or securities intermediary shall have
a combined capital and surplus of at least $250.0 million and shall have a
long-term debt rating of at least "A" by Xxxxx'x (or, solely in the case of
Manufacturers and Traders Trust Company, "A2") and at least "A" by S&P, such
Collateral Account shall be under the exclusive dominion and control of the
Senior Collateral Agent and the Collateral Agent. All amounts on deposit in the
Collateral Account shall be treated as financial assets and cash funds on
deposit in the Collateral Account may be invested at the direction of the
Company in Cash Equivalents; provided, however, in no event shall the Company
have the right to withdraw funds or assets from the Collateral Account except in
compliance with the terms of the Intercreditor Agreement (and any control or
collateral account agreement required by the Trustee as Collateral Agent upon
the termination of the Intercreditor Agreement) and all assets credited to the
Collateral Account shall be subject to a Lien in favor of the Collateral Agent.
(b) Any such funds will be released to the Company by its
delivering to the Collateral Agent and the Trustee an Officers' Certificate
stating that:
(i) no Event of Default under this Indenture or
event of default under the Revolving Credit Facility has occurred and
is continuing as of the date of the proposed release;
(ii) if such funds represent Net Available Cash
in respect of an Asset Sale, that such funds will be applied in
accordance with Section 4.11 and the provisions of the Revolving Credit
Facility;
(iii) the Company and the Subsidiary Guarantors
have complied with all other conditions precedent in the Indenture and
the Revolving Credit Facility relating to the release of such funds;
and
(iv) the Company and the Subsidiary Guarantors
have delivered all documentation required by the TIA, if any, prior to
the release of such funds by the Collateral Agent to the Collateral
Agent and the Trustee.
(c) Notwithstanding the preceding, but subject to the
terms of the Intercreditor Agreement, if the maturity of the Notes has been
accelerated, and the acceleration has not been rescinded as permitted by this
Indenture, the Senior Collateral Agent or the Collateral Agent, as applicable,
shall apply such funds credited to the Collateral Account in accordance with the
Intercreditor Agreement.
79
SECTION 11.4 OPINIONS.
The Company shall furnish to the Trustee within three months after each
anniversary of the Issue Date, an Opinion of Counsel, dated as of such date,
stating either that (a) in the opinion of such counsel, all action has been
taken (and stating what actions, if any, are necessary to be taken within the
next calendar year) with respect to the recording, registering, filing,
re-recording, re-registering and refiling of this Indenture and the Security
Documents, financing statements, continuation statements or other instruments of
further assurance as is necessary to maintain the Liens intended to be created
by the Security Documents and reciting the details of such action or (b) in the
opinion of such counsel, no such action is necessary to maintain such Liens,
which Opinion of Counsel also shall state what actions it then believes are
necessary to maintain the effectiveness of such Liens during the next two years.
SECTION 11.5 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE
UNDER THE SECURITY DOCUMENTS.
Subject to the provisions of the Security Documents to which it is a
party and the Intercreditor Agreement, the Trustee may (but shall not be
required to), in its sole discretion and without the consent of the Holders, on
behalf of the Holders, take all actions it deems necessary or appropriate in
order to (a) enforce any of the terms of the Security Documents and (b) collect
and receive any and all amounts payable in respect of the Obligations of the
Company and the Subsidiary Guarantors hereunder. The Trustee shall have the
power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts that may be
unlawful or in violation of the Security Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interest and the interests of the Holders in the Collateral (including power
to institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or the
Trustee).
SECTION 11.6 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE SECURITY DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Security Documents to which it is a party. So long as the
Intercreditor Agreement is in effect the distribution of proceeds from the sale
of Collateral will first be distributed in accordance with the Intercreditor
Agreement. All proceeds received by the Trustee from the sale of Collateral
pursuant to the Intercreditor Agreement or pursuant to the Security Documents
will be applied by the Trustee as follows:
(a) first, to amounts owing to the Trustee as Collateral
Agent under the Security Documents;
(b) second, to the Trustee, its agents and attorneys for
amounts due under Section 7.7, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
(c) third, to Holders for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, including Special Interest,
if any, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if any, and
interest, including Special Interest, if any, respectively; and
(d) fourth, to the Company or to such party as a court of
competent jurisdiction shall direct.
SECTION 11.7 RELEASE UPON TERMINATION OF THE COMPANY'S OBLIGATIONS.
(a) If the Company delivers to the Trustee (i) an
Officers' Certificate certifying that this Indenture has been discharged
pursuant to Section 13.1 hereof or (ii) an Officers' Certificate pursuant to
clause (i) of
80
Section 8.4 hereof, thereupon the Trustee shall deliver to the Collateral Agent
a notice stating that the Trustee, for itself and on behalf of the Holders,
disclaims and has given up any and all rights it has in or to the Collateral,
and any rights it has under the Security Documents, and, upon and after the
receipt by the Collateral Agent of such notice, the Collateral Agent shall no
longer be deemed to hold the Lien in the Collateral on behalf of the Trustee for
the benefit of itself and the Holders.
(b) Any release of Collateral made in compliance with
this Section 11.7 shall not be deemed to impair the Lien under the Security
Documents or the Collateral thereunder in contravention of the provisions of
this Indenture or the Security Documents.
ARTICLE 12.
SATISFACTION AND DISCHARGE
SECTION 12.1 SATISFACTION AND DISCHARGE.
(a) This Indenture will be discharged and will cease to
be of further effect as to all Notes issued hereunder (except as to surviving
rights of registration of transfer or exchange of Notes expressly provided for
herein, the Company's obligations under Section 7.7, and the Trustee's and each
Paying Agent's obligations under Section 12.2 and Section 12.3), when:
(i) either:
(1) all Notes that have been
authenticated (except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money
has theretofore been deposited in trust and thereafter repaid
to the Company) have been delivered to the Trustee for
cancellation; or
(2) all Notes that have not been
delivered to the Trustee for cancellation have become due and
payable by reason of the making of a notice of redemption or
otherwise or will become due and payable within one year and
the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, money or U.S. Government
Obligations, or a combination thereof, in such amounts as will
be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the
Notes not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest, including
Special Interest, if any, to the date of maturity or
redemption;
(ii) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or shall occur
as a result of such deposit, and such deposit will not result in a
breach or violation of, or constitute a default under, any other
instrument to which the Company is a party or by which the Company is
bound;
(iii) the Company has paid or caused to be paid
all sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited
money and/or U.S. Government Obligations toward the payment of the
Notes at maturity or the redemption date, as the case may be.
(b) The Company shall deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
81
SECTION 12.2 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 12.3, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 12.2, the "Trustee") pursuant
to Section 12.1 in respect of the outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest and Special Interest, if any, but
such money need not be segregated from other funds except to the extent required
by law.
SECTION 12.3 REPAYMENT TO COMPANY.
Subject to applicable escheat and abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest,
including Special Interest, if any, on, any Note and remaining unclaimed for two
years after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 13.2 NOTICES.
(a) Any notice or communication by the Company, the
Subsidiary Guarantors or the Trustee to the others is duly given if in writing
(in the English language) and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next-day delivery, to the other's address:
If to the Company or the Subsidiary Guarantors:
Rent-Way, Inc.
Xxx XxxxXxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx, XXX
Xxx X&X Xxxxx, Xxxxx 000
Buffalo, New York 14203
Attention: Xxxx Xxx
Telecopier No.: (000) 000-0000
82
If to the Trustee:
Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopier No.: (000) 000-0000
(b) The Company, the Subsidiary Guarantors or the
Trustee, by notice to the others, may designate additional or different
addresses for subsequent notices or communications.
(c) All notices and communications (other than those sent
to Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next-day delivery. Notwithstanding the foregoing,
notices to the Trustee shall be effective only upon receipt by the Trustee.
(d) Any notice or communication to a Holder shall be
mailed by first class mail, certified or registered, return receipt requested,
or by overnight air courier guaranteeing next-day delivery to its address shown
on the Security Register. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
(f) If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 13.3 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.5) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.5) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
83
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION 13.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 13.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator,
member, partner or stockholder of the Company or any Subsidiary Guarantor as
such, shall have any liability for any Obligations of the Company or any
Subsidiary Guarantor under the Notes, this Indenture, the Security Documents or
for any claim based on, in respect of, or by reason of, such Obligations or
their creation (except to the extent such Person is a signatory thereto). Each
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.
SECTION 13.8 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 13.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10 SUCCESSORS.
All covenants and agreements of the Company and the Subsidiary
Guarantors in this Indenture and the Notes shall bind their successors. All
covenants and agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.11 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
84
SECTION 13.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
[Signatures on following page]
85
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
ISSUER:
RENT-WAY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
--------------------------------------
Title: Chairman of the Board and
Chief Executive Officer
--------------------------------------
GUARANTORS:
RENT-WAY OF TOMORROW, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title Chairman of the Board, President and
Chief Executive Officer
---------------------------------------
RENT-WAY OF MICHIGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title Chairman of the Board, President and
Chief Executive Officer
---------------------------------------
ACTION RENT TO OWN HOLDINGS OF SOUTH
CAROLINA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title Chairman of the Board, President and
Chief Executive Officer
---------------------------------------
RENT-WAY DEVELOPMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name Xxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title Chairman of the Board, President and
Chief Executive Officer
---------------------------------------
RENT-WAY OF TTIG, L.P.
By: RENT-WAY DEVELOPMENTS, INC., its general
partner
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------
Name Xxxxxxx X. Xxxxxxxxxxx
------------------------------------
Title Chairman of the Board, President
and Chief Executive Officer
-----------------------------------
S-1
TRUSTEE:
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
________________________________________
Name: Xxxxxxx X. Xxxxxxx
______________________________________
Title: Assistant Vice President
_____________________________________
S-2
EXHIBIT A
(FACE OF NOTE)
11 7/8% SENIOR SECURED NOTE DUE 2010
CUSIP NO. [___________]
$[ _________]
RENT-WAY, INC.
Promises to pay to _____________, or registered assigns, the principal
sum of _________________ Dollars ($______________) on June 15, 2010.
Interest Payment Dates: June 15 and December 15, commencing December
15, 2003.
Record Dates: June 1 and December 1.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
RENT-WAY, INC.
By:_________________________________________
Name: _____________________________________
Title: _____________________________________
By:_________________________________________
Name: ______________________________________
Title: _____________________________________
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:_________________________________________
Authorized Signatory
Dated _____________, 2003
A-1
(Back of Note)
11 7/8% Senior Secured Note due 2010
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY BEFORE THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) UNDER A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE UNDER RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) UNDER OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN
A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) UNDER ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT BEFORE ANY SUCH OFFER, SALE OR TRANSFER
UNDER CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN
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AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Rent-Way, Inc., a Pennsylvania corporation (the
"ISSUER"), promises to pay interest on the principal amount of this Note at 11?%
per annum until maturity and shall pay Special Interest, if any, as provided in
Section 2 below. The Issuer shall pay interest semi-annually on June 15, and
December 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on the Notes
shall accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided, however, that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be December 15, 2003. The Issuer shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
2. SPECIAL INTEREST. If (a) on or prior to the 180th day
following the original Issue Date of the Notes, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Commission, (b) on or prior to the 240th day following the original Issue
Date of the Notes, neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been declared effective by the Commission, (c)
on or prior to the 30th Business Day following the date the Exchange Offer
Registration Statement is declared effective, neither the Registered Exchange
Offer has been consummated nor the Shelf Registration Statement has been
declared effective, or (d) after either the Exchange Offer Registration
Statement or the Shelf Registration Statement has been declared effective, such
registration statement thereafter ceases to be effective or usable in connection
with resales of Notes or Exchange Notes in accordance with and during the
periods specified in the Registration Rights Agreement (each such event referred
to in clauses (a) through (d), a ("Registration Default"), interest ("Special
Interest") will accrue on the principal amount of the Notes, the Additional
Notes and the Exchange Notes (in addition to the stated interest on the Notes,
Additional Notes and the Exchange Notes) from and including the date on which
any such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. Special Interest will accrue at a rate of
0.50% per annum during the 90-day period immediately following the occurrence of
such Registration Default and shall increase by 0.50% per annum at the end of
each subsequent 90-day period, but in no event shall such rate exceed 2.00% per
annum.
All Obligations of the Company and the Subsidiary Guarantors set forth
in the preceding paragraph that are outstanding with respect to any Note at the
time such Note is exchanged for an Exchange Note shall survive until such time
as all such Obligations with respect to such Notes have been satisfied in full.
3. METHOD OF PAYMENT. The Issuer shall pay interest on the Notes
to the Holders at the close of business on the June 15 or December 15 next
preceding the Interest Payment Date, even if such Notes are cancelled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes
shall be payable as to principal, premium, if any, and interest and Special
Interest, if any, at the office or agency of the Issuer maintained for such
purpose within or without the City and State of New York, or, at the option of
the Issuer, payment of interest may be made by check mailed to the Holders at
their addresses set forth in the Security Register; provided, however, that
payment by wire transfer of immediately available funds shall be required with
respect to principal of, and interest and Special Interest, if any, and premium,
if any, on, all Global Notes and all other Notes if the Holders of such Notes
have provided wire transfer instructions to the Issuer or the Paying Agent. Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
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The principal of the Notes shall be payable only upon surrender of any Note at
the Corporate Trust Office of the Trustee or at the specified offices of any
other Paying Agent. If any Interest Payment Date for, or the due date for
payment of the principal of, the Notes is not a Business Day at the place in
which it is presented for payment, the Holder thereof shall not be entitled to
payment of the amount due until the next succeeding Business Day at such place
and shall not be entitled to any further interest or other payment in respect of
such delay.
4. PAYING AGENT AND REGISTRAR. Initially, Manufacturers and
Traders Trust Company, the Trustee under the Indenture, shall act as Paying
Agent and Registrar. The Issuer may change any Paying Agent or Registrar without
notice to any Holder. The Issuer or any of its Subsidiaries may act in any such
capacity.
5. INDENTURE. The Issuer issued the Notes under an Indenture
dated as of June 2, 2003 ("Indenture") among the Issuer, the guarantors party
thereto (the "SUBSIDIARY GUARANTORS") and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Issuer unlimited in aggregate principal amount, except only
$205,000,000 in aggregate principal amount of the Notes may be issued on the
Issue Date.
6. OPTIONAL REDEMPTION.
(a) Except as set forth below and in clause (b) of this Section 6,
the Notes will not be redeemable at the option of the Issuer. At any time prior
to June 15, 2010, the Company may redeem all or any portion of the Notes, at
once or over time, after giving the required notice under the Indenture, at a
redemption price equal to the greater of:
(i) 100% of the principal amount of the Notes to
be redeemed, and
(ii) the sum of the present values of (i) 100% of
the principal amount of the Notes to be redeemed at June 15, 2010, and
(ii) the remaining scheduled payments of interest from the redemption
date through June 15, 2010, but excluding accrued and unpaid interest
through the redemption date, discounted to the redemption date at the
Treasury Rate plus 175 basis points,
plus, in either case, accrued and unpaid interest and Special 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 needs to include the
appropriate calculation of the redemption price, but does not need to include
the redemption price itself. The actual redemption price, calculated as
described above, must be set forth in an Officers' Certificate delivered to the
Trustee no later than two Business Days prior to the redemption date.
(b) At any time and from time to time prior to June 15, 2006, the
Issuer may redeem up to a maximum of 25% of the aggregate principal amount of
the Notes (including any Additional Notes) with the proceeds of one or more
Public Equity Offerings, at a redemption price equal to 111.875% of the
principal amount thereof, plus accrued and unpaid interest and Special Interest,
if any, to the redemption date (subject to the right of Holders on the relevant
record date to receive interest due on the relevant Interest Payment Date);
provided, however, that after giving effect to any such redemption, at least 75%
of the original aggregate principal amount of the Notes (including any
Additional Notes) issued on or after the Issue Date remains outstanding. Any
such redemption shall be made within 75 days of such Public Equity Offering upon
not less than 30 nor more than 60 days' prior notice.
(c) Any prepayment pursuant to this Section 6 shall be made
pursuant to the provisions of Section 3.1 through Section 3.6 of the Indenture.
7. MANDATORY REDEMPTION. The Issuer shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
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8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Issuer may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Issuer need
not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Security Documents and the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes, including Additional
Notes, if any, voting as a single class, and any existing default or compliance
with any provision of the Indenture, the Security Documents or the Notes may be
waived with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes, including Additional Notes, if
any, voting as a single class. Without the consent of any Holder, the Indenture,
the Security Documents or the Notes may be amended or supplemented to: cure any
ambiguity, omission, defect or inconsistency in any manner that is not adverse
in any material respect to any Holder of the Notes; provide for the assumption
by a Surviving Person of the obligations of the Company under the Indenture or
of a Subsidiary Guarantor under the Indenture and its Subsidiary Guaranty;
provide for uncertificated Notes in addition to or in place of certificated
Notes (provided that the uncertificated Notes are issued in registered form for
purposes of Section 163(f) of the Code, or in a manner such that the
uncertificated Notes are described in Section 163(f) (2) (B) of the Code); add
additional Guarantees with respect to the Notes or to release Subsidiary
Guarantors from Subsidiary Guarantees with respect to the Notes as permitted by
the terms of the Indenture; add to the covenants of the Company and the
Subsidiary Guarantors for the benefit of the Holders of the Notes or to
surrender any right or power conferred upon the Company or any Subsidiary
Guarantor; make any change that does not adversely affect the rights of any
Holder of the Notes; make any change to comply with any requirement of the
Commission in connection with the qualification of the Indenture under the TIA;
provide for the issuance of Additional Notes in accordance with the Indenture;
or add any additional assets as Collateral.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of
Default under the Indenture: (1) failure to make the payment of any interest,
including Special Interest, on the Notes issued under the Indenture when the
same becomes due and payable, and such failure continues for a period of 30
days; (2) failure to make the payment of any principal of, or premium, if any,
on, any of the Notes issued under the Indenture when the same becomes due and
payable at its Stated Maturity, upon acceleration, redemption, optional
redemption, required repurchase or otherwise; (3) failure to comply with Article
5 of the Indenture; (4) failure to comply with any other covenant or agreement
in the Notes, the Indenture or any Security Document (other than a failure that
is the subject of the foregoing clauses 1, 2 or 3) and such failure continues
for 30 days after written notice is given to the Company as provided in Section
6.1(b) of the Indenture; (5) a default under any Debt by the Issuer or any
Restricted Subsidiary that results in acceleration of the maturity of such Debt,
or failure to pay any such Debt at maturity, in an aggregate amount greater than
$10.0 million or its foreign currency equivalent at the time (the "cross
acceleration provisions"); (6) any judgment or judgments for the payment of
money in an aggregate amount in excess of $10.0 million (or its foreign currency
equivalent at the time) that shall be rendered against the Issuer or any
Restricted Subsidiary and that shall not be waived satisfied or discharged for
any period of 30 consecutive days during which a stay of enforcement shall not
be in effect (the "judgment default provisions"); (7) certain events involving
bankruptcy, insolvency or reorganization of the Issuer or any Significant
Subsidiary or Subsidiary Group; or (8) any Subsidiary Guaranty or any of the
Security Documents ceases to be in full force and effect (except as contemplated
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by the terms of the Indenture) or any of the Subsidiary Guarantees or the
Security Documents is declared null and void or invalid and unenforceable, or
any Subsidiary Guarantor denies or disaffirms its obligations under the
Indenture or its Subsidiary Guaranty or any obligor denies or disaffirms its
liability under any Security Document to which it is a party. A Default under
clause (4) is not an Event of Default in respect of the Notes until the Trustee
or the registered Holders of not less than 25% in aggregate principal amount of
Notes then outstanding notify the Issuer of the Default, and the Issuer does not
cure such Default within the time specified after receipt of such notice. If any
Event of Default (other than under clause (7)) occurs and is continuing, the
Trustee or the registered Holders of not less than 25% in aggregate principal
amount of the Notes then outstanding may declare all the Notes to be due and
payable. In the case of an Event of Default under clause (7), all outstanding
Notes shall become due and payable immediately without any declaration or other
act on the part of the Trustee or the Holders. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. In the event of a
declaration of acceleration of the Notes because an Event of Default has
occurred and is continuing as a result of the acceleration of any Debt described
in clause (5), the declaration of acceleration of the Notes shall be
automatically annulled if the holders of a majority in aggregate principal
amount of the Notes then outstanding have rescinded the declaration of
acceleration in respect of such Debt within 30 days of the date of such
declaration and if (i) the annulment of the acceleration of the Notes would not
conflict with any judgment or decree of a court of competent jurisdiction, and
(ii) all existing Events of Default, except nonpayment of principal or interest
on the Notes that became due solely because of the acceleration of the Notes,
have been cured or waived. Subject to certain limitations, Holders of a majority
in aggregate principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal, premium, if any, or
interest, including Special Interest, if any) if it determines that withholding
the notice is in the interest of the Holders. Holders of not less than a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture,
except a continuing Default or Event of Default in the payment of interest or
Special Interest on, or the principal of, the Notes. The Issuer is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Issuer is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUER. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Issuer or any Affiliate of the Issuer with the same rights it
would have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, member, partner or stockholder of the
Issuer or any Subsidiary Guarantor as such, shall have any liability for any
Obligations of the Issuer or any Subsidiary Guarantor under the Notes, the
Indenture, the Security Documents or for any claim based on, in respect of, or
by reason of, such Obligations or their creation (except to the extent such
Person is a signatory thereto). Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
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The Issuer shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Rent-Way, Inc.
Xxx XxxxXxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date:________________ Your Signature:___________________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:______________________________
(Signature must be guaranteed by a financial
institution that is a member of the Securities
Transfer Agent Medallion Program ("STAMP"), the
Stock Exchange Medallion Program ("SEMP"), the New
York Stock Exchange, Inc. Medallion Signature
Program ("MSP") or such other signature guarantee
program as may be determined by the Registrar in
addition to, or in substitution for, STAMP, SEMP
or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant
to Section 4.11, Section 4.17 or Section 4.19 of the Indenture, check the box
below:
[ ] Section 4.11 [ ] Section 4.17 [ ] Section 4.19
If you want to elect to have only part of the Note purchased by the
Issuer pursuant to Section 4.11, Section 4.17 or Section 4.19 of the Indenture,
state the amount you elect to have purchased: $
Date:________________ Your Signature:___________________________________
(Sign exactly as your name appears
on the Note)
Soc. Sec. or Tax Identification No.:______________
Signature Guarantee:______________________________
(Signature must be guaranteed by a financial
institution that is a member of the Securities
Transfer Agent Medallion Program ("STAMP"), the
Stock Exchange Medallion Program ("SEMP"), the New
York Stock Exchange, Inc. Medallion Signature
Program ("MSP") or such other signature guarantee
program as may be determined by the Registrar in
addition to, or in substitution for, STAMP, SEMP
or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of an interest in this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of an interest in
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Amount of Principal of this Signature of
decrease in Amount of Global Note Authorized
Principal increase in following such Signatory of
Date of Amount of this Principal Amount decrease (or Trustee or Note
Exchange Global Note of this Global Note increase) Custodian
-------- -------------- ------------------- ----------------- ---------------
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Rent-Way, Inc.
Xxx XxxxXxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Manufacturers and Traders Trust Company, as Trustee
One M&T Plaza
Buffalo, New York 14203
Attention: Corporate Trust Department
Re: 11 7/8% Senior Secured Notes due 2010
Reference is hereby made to the Indenture, dated as of June 2, 2003
(the "Indenture"), among Rent-Way, Inc., as issuer (the "Issuer"), the
Subsidiary Guarantors party thereto and Manufacturers and Traders Trust Company,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than the
Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on
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Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note, the Temporary Regulation S Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
in an aggregate principal amount of at least $250,000, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within the
meaning of Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that such Transfer
is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Definitive Notes and in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be
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subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
____________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Dated:______________________________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (A) OR (B)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note, in accordance with the terms
of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Rent-Way, Inc.
Xxx XxxxXxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Manufacturers and Traders Trust Company, as Trustee
One M&T Plaza
Buffalo, New York 14203
Attention: Corporate Trust Department
Re: 11 7/8% Senior Secured Notes due 2010
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of June 2, 2003
(the "Indenture"), among Rent-Way, Inc., as issuer (the "Issuer"), the
Subsidiary Guarantors party thereto and Manufacturers and Traders Trust Company,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. [ ] EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been
C-1
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. [ ] EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] 144A Global Note, Regulation S Global Note, IAI Global Note with
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer.
___________________________________________
[Insert Name of Transferor]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Dated:______________________________________
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Rent-Way, Inc.
Xxx XxxxXxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Manufacturers and Traders Trust Company, as Trustee
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re:______11 7/8% Senior Secured Notes due 2010
Reference is hereby made to the Indenture, dated as of June 2, 2003
(the "Indenture"), among Rent-Way, Inc., as issuer (the "Issuer"), the
Subsidiary Guarantors signatory thereto and Manufacturers and Traders Trust
Company, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Issuer or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Issuer a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Issuer to the effect that such transfer is in
compliance with the Securities Act, and such transfer is in an aggregate
principal amount of at least $250,000, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Issuer such certifications, legal opinions and other information as you and the
Issuer may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
____________________________________________
[Insert Name of Accredited Investor]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Dated:______________________________________
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, unconditionally
guarantees, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, dated as of June 2, 2003 (the "Indenture"), among
Rent-Way, Inc., as issuer (the "Issuer"), the Subsidiary Guarantors listed on
the signature pages thereto and Manufacturers and Traders Trust Company, as
trustee (the "Trustee"), (a) the due and punctual payment of the principal of,
premium, if any, and interest and Special Interest, if any, on, the Notes,
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal of, premium, if any, and
interest and Special Interest, if any, on, the Notes, if lawful, and the due and
punctual performance of all other obligations of the Issuer to the Holders or
the Trustee, all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Subsidiary
Guarantors to the Holders of Notes and to the Trustee pursuant to the Subsidiary
Guaranty and the Indenture are expressly set forth in Article 10 of the
Indenture, and reference is hereby made to the Indenture for the precise terms
of the Subsidiary Guaranty. This Subsidiary Guaranty is subject to release as
and to the extent set forth in Sections 8.2, 8.3 and 10.5 of the Indenture. Each
Holder of a Note, by accepting the same, agrees to and shall be bound by such
provisions. Capitalized terms used herein and not defined are used herein as so
defined in the Indenture.
RENT-WAY OF TOMORROW, INC.
By: ________________________________________
Name________________________________________
Title_______________________________________
RENT-WAY OF MICHIGAN, INC.
By: ________________________________________
Name________________________________________
Title_______________________________________
ACTION RENT TO OWN HOLDINGS OF SOUTH
CAROLINA, INC.
By: ________________________________________
Name________________________________________
Title_______________________________________
RENT-WAY DEVELOPMENTS, INC.
By: ________________________________________
Name________________________________________
Title_______________________________________
E-1
RENT-WAY OF TTIG, L.P.
By: RENT-WAY DEVELOPMENTS, INC., its general
partner
By: ____________________________________
Name____________________________________
Title___________________________________
E-2
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE, dated as of __________ ___, ____, is among
Rent-Way, Inc., a Pennsylvania corporation (the "Company"), each of the parties
identified under the caption "Subsidiary Guarantors" on the signature page
hereto (the "Guarantors") and Manufacturers and Traders Trust Company, as
Trustee.
RECITALS
WHEREAS, the Company, certain Subsidiary Guarantors and the Trustee
entered into an Indenture, dated as of June 2, 2003 (the "Indenture"), pursuant
to which the Company has originally issued $205,000,000 in aggregate principal
amount of 11 7/8% Senior Secured Notes due 2010 (the "Notes"); and
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Company,
the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture
in order to add any new Subsidiary Guarantor to comply with Section 10.4
thereof, without the consent of the Holders of the Notes; and
WHEREAS, all acts and things prescribed by the Indenture, by law and by
the charter and the bylaws (or comparable constituent documents) of the Company,
of the Subsidiary Guarantors and of the Trustee necessary to make this
Supplemental Indenture a valid instrument legally binding on the Company, the
Subsidiary Guarantors and the Trustee, in accordance with its terms, have been
duly done and performed;
NOW, THEREFORE, to comply with the provisions of the Indenture and in
consideration of the above premises, the Company, the Subsidiary Guarantors and
the Trustee covenant and agree for the equal and proportionate benefit of the
respective Holders of the Notes as follows:
ARTICLE 1.
Section 1.1. This Supplemental Indenture is supplemental to the
Indenture and does and shall be deemed to form a part of, and shall be construed
in connection with and as part of, the Indenture for any and all purposes.
Section 1.2. This Supplemental Indenture shall become effective
immediately upon its execution and delivery by each of the Company, the
Subsidiary Guarantors and the Trustee.
ARTICLE 2.
Section 2.1. From this date, in accordance with Section 10.4 and by
executing this Supplemental Indenture and the accompanying notation of
Subsidiary Guarantee (a copy of which is attached hereto), the Subsidiary
Guarantors whose signatures appear below are subject to the provisions of the
Indenture to the extent provided for in Article 10 thereof.
ARTICLE 3.
Section 3.1. Except as specifically modified herein, the Indenture and
the Notes are in all respects ratified and confirmed (mutatis mutandis) and
shall remain in full force and effect in accordance with their terms with all
capitalized terms used herein without definition having the same respective
meanings ascribed to them as in the Indenture.
Section 3.2. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
F-1
Section 3.3. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE AND ENFORCE THIS SUPPLEMENTAL INDENTURE.
Section 3.4. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
RENT-WAY, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
[SUBSIDIARY GUARANTORS]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
MANUFACTURERS AND TRADERS TRUST COMPANY
By:_________________________________________
Name:_______________________________________
Title:______________________________________
F-2
CROSS-REFERENCE TABLE*
Trust Indenture Act
-------------------
310 (a)(1)................................... 7.10
(a)(2)....................................... 7.10
(a)(3)....................................... N.A.
(a)(4)....................................... N.A.
(a)(5)....................................... 7.10
(b).......................................... 7.10
(c).......................................... N.A.
311(a)....................................... 7.11
(b).......................................... 7.11
(c).......................................... N.A.
312(a)....................................... 2.5
(b).......................................... 13.3
(c).......................................... 13.3
313(a)....................................... 7.6
(b)(2)....................................... 7.6; 7.7
(c) ......................................... 7.6; 13.2
(d).......................................... 7.6
314(a)(4).................................... 13.5
(c)(1) ...................................... N.A.
(c)(2)....................................... N.A.
(c)(3)....................................... N.A.
(e).......................................... 13.5
(f).......................................... N.A.
315(a) 7.1(b)................................ N.A.
(c).......................................... N.A.
(d).......................................... N.A.
(e).......................................... N.A.
316(a)(last sentence)........................ N.A.
(a)(1)(A).................................... N.A.
(a)(1)(B).................................... N.A.
(a)(2)....................................... N.A.
(b).......................................... N.A.
(c).......................................... N.A.
317(a)(1).................................... N.A.
(a)(2)....................................... N.A.
(b).......................................... N.A.
318(a)....................................... N.A.
(b).......................................... N.A.
(c).......................................... 13.1
N.A. means not applicable.
*This Cross-Reference Table is not part of this Indenture.
