FIRST SUPPLEMENTAL INDENTURE
Dated as of June 24, 1999
between
HOLLYWOOD ENTERTAINMENT CORPORATION,
AS ISSUER
and
U.S. TRUST COMPANY, N.A.
AS TRUSTEE
Supplementing the Indenture
Dated as of August 13, 1997
FIRST SUPPLEMENTAL INDENTURE, dated as of June 24, 1999 (the "First
Supplemental Indenture"), between Hollywood Entertainment Corporation, an Oregon
corporation (the "Company"), and U.S. Trust Company, N.A. (formerly known as
U.S. Trust Company of California, N.A.), as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the Indenture dated as of
August 13, 1997 (the "Original Indenture"; as amended hereby, the "Indenture")
to the Trustee to provide for the issuance of up to $250,000,000 in principal
amount of the Company's 10 5/8% Senior Subordinated Notes due 2004 (the
"Securities");
WHEREAS, on August 13, 1997 the Company issued $200,000,000 in principal
amount of the Securities (the "Original Securities");
WHEREAS, pursuant to the terms of the Original Indenture, the Company
desires to supplement and amend the Original Indenture to issue $50,000,000 in
principal amount of additional Securities (the "Additional Securities") of the
Company as contemplated by Sections 2.2 and 9.1(3) of the Indenture;
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company and the Trustee in accordance with its terms and
a valid amendment and supplement to the Original Indenture, have been done.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained, the Company and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Original Indenture has the same meaning when
used in this First Supplemental Indenture, unless such term is defined
differently herein;
(b) the Original Indenture is hereby amended to include the
definitions of terms provided for herein
(c) capitalized terms used herein that are not otherwise defined
herein shall have the meaning assigned to such terms in the Original Indenture;
(d) the singular includes the plural and vice versa;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) "Additional Securities" has the meaning set forth in the recitals
hereto.
(g) "Additional Securities Issue Date" means the date on which the
Additional Securities are originally issued.
(h) "Additional Securities Registration Rights Agreement" means the
Registration Rights Agreement dated as of June 17, 1999 by and between the
Company and Banc of America Securities LLC.
(i) "Exchange Additional Securities" means the Additional Securities
issued pursuant to the Additional Securities Registration Rights Agreement in
exchange for the Initial Additional Securities.
(j) "Initial Additional Securities" means the Additional Securities
issued on the Additional Securities Issue Date, for so long as such Securities
constitute Restricted Securities.
(k) "Initial Purchasers" means (a) with respect to Original
Securities, Xxxxxxxxxx Securities, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxxx, Sachs & Co. and Societe Generale Securities Corporation,
collectively, and (b) with respect to Additional Securities, Banc of America
Securities LLC.
(l) "Original Securities" has the meaning set forth in the recitals
hereto.
ARTICLE II
AMENDMENTS TO THE ORIGINAL INDENTURE
Section 2.1 Issuance of Additional Securities.
(a) The Original Indenture is amended to provide for the issuance of
additional 10 5/8% Senior Subordinated Notes due 2004 of the Company in an
aggregate principal amount of $50,000,000. Except to the extent inconsistent
with the terms of Exhibit A hereof and Sections 3.1 and 3.2 of this First
Supplemental Indenture, the terms of the Original Indenture will be applicable
to the Additional Securities and the Additional Securities will constitute
"Securities" within the meaning of that term under the Indenture.
(b) The Original Indenture is amended so that the definition therein
of "Exchange Securities" and "Registration Rights Agreement" will be deemed to
include the Exchange Additional Securities and the Additional Securities
Registration Rights Agreement, respectively, on and after the Additional
Securities Issue Date.
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ARTICLE III
MISCELLANEOUS
Section 3.1 Form and Dating.
The Initial Additional Securities and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of Exhibit A
annexed hereto, which is part of this First Supplemental Indenture. The Exchange
Additional Securities and the Trustee's certificate of authentication relating
thereto shall be substantially in the form of Exhibit B to the Original
Indenture.
The terms and provisions contained in the form of Additional Securities
annexed hereto as Exhibit A shall constitute, and are expressly made, a part of
this First Supplemental Indenture. The Original Indenture is amended to provide
that references in the certificates evidencing the Exchange Additional
Securities in the form of Exhibit B to the Original Indenture to (a) "Initial
Securities" shall be deemed to include the Initial Additional Securities and (b)
"August 13, 1997" in Paragraph 1 thereof shall be deemed to be references to
"June 24, 1999" with respect to the Initial Additional Securities, in each case
on and after the Additional Securities Issue Date.
Section 3.2 Execution and Authentication.
The Trustee shall authenticate (a) Initial Additional Securities for
original issue in an aggregate principal amount of $50,000,000 and (b) Exchange
Additional Securities for issue only in exchange pursuant to the Additional
Securities Registration Rights Agreement, for a like principal amount of
Additional Securities, in each case, upon a written order of the Company signed
by an Officer.
Section 3.3 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 3.4 Governing Law.
This First Supplemental Indenture shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of said State without giving effect to applicable
principles of conflict of laws to the extent that the application of the laws of
another jurisdiction would be required thereby.
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Section 3.5 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this First Supplemental Indenture but
this First Supplemental Indenture shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 3.6 Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 3.7 Effectiveness.
This First Supplemental Indenture shall be effective and binding when
executed by the Company and the Trustee.
Section 3.8 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
Section 3.9 Performance by Trustee.
The Trustee, for itself and its successors accepts the Trust of the
Indenture as amended by this First Supplemental Indenture and agrees to perform
the First Supplemental Indenture and agrees to perform the same, but only upon
the terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liability and responsibility of the
Trustee.
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IN WITNESS WHEREOF, the Parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
HOLLYWOOD ENTERTAINMENT
CORPORATION
By: XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
U.S. TRUST COMPANY, N.A.
as Trustee
By: XXXXXXXXX DEDORO
-------------------------------------
Name: Xxxxxxxxx Dedoro
Title: Assistant Vice President
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EXHIBIT A
FACE OF SECURITY
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES
FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1) BY THE INITIAL PURCHASER (a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF APPLICABLE) OR IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION
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REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (d) TO THE COMPANY, OR (e) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (2) BY SUBSEQUENT
PURCHASERS, AS SET FORTH IN (1)(a) THROUGH (e) ABOVE, AND IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE NOTE EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE. NO REPRESENTATION CAN
BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE
OF THE SECURITY EVIDENCED HEREBY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, TO AN ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.14 OF THE INDENTURE.
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Xx.
00 5/8% Senior Subordinated Notes Due 2004
CUSIP No. 436141 AF 2
HOLLYWOOD ENTERTAINMENT CORPORATION, an Oregon corporation, promises to pay
to Cede & Co., or registered assigns, the principal sum set forth from time to
time on Schedule A hereto on August 15, 2004.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the reverse side of
this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
HOLLYWOOD ENTERTAINMENT CORPORATION
By:
-------------------------------------
Name:
Title:
Dated: June 24, 1999
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. TRUST COMPANY, N.A., as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.
By: U.S. TRUST COMPANY, N.A.,
as Trustee
------------------------------------
Authorized Signatory
Date of Authentication:
June 24, 1999
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REVERSE OF SECURITY
10 5/8% SENIOR SUBORDINATED SECURITY DUE 2004
1. Interest
HOLLYWOOD ENTERTAINMENT CORPORATION, an Oregon corporation (such entity,
and its successors and assigns under the Indenture hereinafter referred to, and
each other entity which is required to become the Company pursuant to the
Indenture, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay interest
semiannually on February 15 and August 15 of each year, commencing August 15,
1999. Interest on the Securities will accrue from the most recent date on which
interest has been paid, or if interest has not yet been paid, June 24, 1999.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the same rate
borne by the Securities, and it shall pay interest on overdue installments of
interest at such rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted interest)
to the Persons who are registered holders of Securities at the close of business
on the February 1 and August 1 immediately preceding the interest payment date
even if Securities are canceled on registration of transfer or registration of
exchange (including pursuant to an Exchange Offer (as defined in the Additional
Securities Registration Rights Agreement)) after the record date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder's registered address.
3. Paying Agent and Registrar
Initially, U.S. Trust Company, N.A., a national banking association
("Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
may act as Paying Agent, Registrar, co-Registrar or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as of August 13,
1997 and First Supplemental Indenture dated June 24, 1999 (the "First
Supplemental Indenture," and together with the Indenture dated as of August 13,
1997, the "Indenture"), between the Company
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and the Trustee. This Security is one of a duly authorized issue of Initial
Additional Securities (as defined in the Indenture) of the Company designated as
its 10 5/8% Senior Subordinated Notes due 2004. The Securities include the
Initial Additional Securities and the Exchange Additional Securities (as defined
in the Indenture), issued in exchange for the Initial Additional Securities
pursuant to the Additional Securities Registration Rights Agreement. The Initial
Additional Securities, the Exchange Additional Securities and the Original
Securities (as defined in the Indenture) are treated as a single class of
securities under, and constitute Securities under, the Indenture. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.
77aaa-77bbbb) as in effect on the date of the Indenture (the "TIA"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
those terms. Any conflict between this Security and the Indenture will be
governed by the Indenture.
The Securities are unsecured senior subordinated obligations of the Company
limited to $250,000,000 aggregate principal amount (subject to Section 2.7 of
the Indenture). The Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the existence of
liens, the payment of dividends on, and redemption of, the Capital Stock of the
Company and its Subsidiaries, restricted payments, the sale or transfer of
assets and Subsidiary stock, the issuance or sale of Capital Stock of Restricted
Subsidiaries, the investments of the Company and its Restricted Subsidiaries,
consolidations, mergers and transfers of all or substantially all the assets of
the Company, and transactions with Affiliates. In addition, the Indenture limits
the ability of the Company and certain of its Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
Except as set forth in the next paragraph, the Securities may not be
redeemed at the option of the Company prior to August 15, 2001. Thereafter, the
Securities will be redeemable, at the Company's option, in whole or in part, at
any time or from time to time, at the following redemption prices (expressed in
percentages of principal amount), plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date) if
redeemed during the 12-month period commencing on August 15 of the years set
forth below:
Period Percentage
------ ----------
2001 ..................................... 105.313%
2002 ..................................... 102.656%
2003 and thereafter ...................... 100.000%
In addition, at any time and from time to time prior to August 15, 2000,
the Company may redeem in the aggregate up to 35% of the original principal
amount of the Securities with the
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proceeds of one or more Public Equity Offerings at a redemption price (expressed
as a percentage of principal amount) of 110.625% plus accrued and unpaid
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least 65% of the original
aggregate principal amount of the Securities must remain outstanding after each
such redemption; and provided further, however, that such redemption shall occur
within 60 days of the closing date of such Public Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at such Holder's registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000 (except as otherwise set forth in the Indenture). If money
sufficient to pay the redemption price of and accrued interest on all Securities
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for redemption. If a notice or
communication is sent in the manner provided in the Indenture, it is duly given,
whether or not the addressee receives it. Failure to send a notice or
communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.
In addition, in the event of certain Asset Dispositions, the Company will
be required to make an offer to purchase Securities at a purchase price of 100%
of their principal amount plus accrued interest to the date of purchase (subject
to the rights of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date) as provided in, and subject
to the terms of, the Indenture.
7. Change of Control
Upon a Change of Control, each Holder of Securities will have the right to
require the Company to repurchase all or any part of the Securities of such
Holder at a repurchase price in cash equal to 101% of the principal amount of
the Securities to be repurchased plus accrued and unpaid interest to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the related interest payment date) as provided
in, and subject to the terms of, the Indenture.
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8. The Additional Securities Registration Rights Agreement
The holder of this Initial Additional Security is entitled to the benefits
of a Registration Rights Agreement, dated as of June 17, 1999, among the Company
and the Initial Purchaser named therein (as such may be amended from time to
time, the "Additional Securities Registration Rights Agreement"). Capitalized
terms used in this subsection but not defined herein have the meanings assigned
to them in the Additional Securities Registration Rights Agreement.
If (i) within 30 days after the Closing Date, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Commission; (ii) within 120 days after the Closing Date, the Exchange Offer
Registration Statement has not been declared effective; (iii) within 150 days
after the Closing Date, the Registered Exchange Offer has not been consummated;
(iv) within 150 days after the Closing Date, the Shelf Registration Statement
has not been declared effective if a Shelf Registration Statement is required to
be filed; or (v) 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 (subject to certain
exceptions) in connection with resales of Securities in accordance with and
during the periods specified in the Additional Securities Registration Rights
Agreement (each such event referred to in clauses (i) through (iv), a
"Registration Default"), interest ("Additional Interest") will accrue on the
Initial Additional Securities (in addition to the stated interest on the Initial
Additional Securities) 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. Additional Interest will accrue at a rate
of 0.25% per annum during the 90-day period immediately following the occurrence
of any Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period, but in no event shall such increase exceed 1.00%
per annum.
9. Subordination
The Securities are subordinated to Senior Indebtedness of the Company, as
defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness of the Company must be paid before the Securities may be paid. In
addition, to the extent applicable, each Subsidiary Guaranty shall be
subordinated to Senior Indebtedness of the relevant Subsidiary Guarantor, as
defined in the Indenture (or the relevant supplement thereto). The Company and,
to the extent applicable, each Subsidiary Guarantor, agrees, and each Holder by
accepting a Security agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give such provisions effect and appoints
the Trustee as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
The Securities are in registered form, without coupons, and in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or
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permitted by the Indenture, including any transfer tax or other similar
governmental charge payable in connection therewith. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or 15 days before an interest payment
date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of it
for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its written request unless an abandoned property law designates another Person.
After any such payment, Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Securities to redemption or maturity, as the
case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the consent of the Holders of at least a
majority in principal amount outstanding of the Securities and (ii) any past
default or compliance with any provision may be waived with the consent of the
Holders of a majority in principal amount outstanding of the Securities. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, to comply
with Article 5 of the Indenture, to provide for uncertificated Securities in
addition to or in place of certificated Securities, to add guarantees with
respect to the Securities, to secure the Securities, to add additional covenants
or surrender rights and powers conferred on the Company, to make any change that
does not adversely affect the rights of any Securityholder or to comply with any
request of the SEC in connection with qualifying the Indenture under the TIA.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30 days in
payment of interest on the Securities; (ii) default in payment of principal or
premium, if any, on any Security
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when due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise, (iii) failure by the Company to
comply for 30 days after notice with Sections 4.3, 4.4, 4.6 or Article 5 of the
Indenture; (iv) failure by the Company to comply with other agreements in the
Indenture or the Securities, for 60 days after notice; (iv) failure by the
Company or any Restricted Subsidiary to pay any Indebtedness within any
applicable grace period after final maturity or acceleration by the Holders
thereof because of a default and the total amount of such Indebtedness unpaid or
accelerated exceeds $5.0 million and in either case, such default is not cured
or waived and such acceleration, if any, rescinded or the Indebtedness is not
paid in 30 days; (v) certain events of bankruptcy, insolvency or reorganization
of the Company or any Restricted Subsidiary; and (vi) the rendering of any
judgments or decrees against the Company or any Restricted Subsidiary for the
payment of money in excess of $5.0 million, if any such judgment or decree is
not discharged, waived or stayed within 60 days after entry of such judgment or
decree.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Securities then outstanding may
declare all the Securities to be due and payable. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of principal or interest) if it determines that withholding notice is
in the interest of the Holders.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or any of its Affiliates and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it were
not Trustee.
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17. No Recourse Against Others
No recourse for the payment of the principal of, premium, if any, or
interest or other Obligations on any of the Securities or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture, or in any of
the Securities or because of the creation of any Indebtedness represented hereby
and thereby, shall be had against any incorporator, stockholder, officer,
director, employee or controlling person of the Company, a Subsidiary Guarantor
or any Successor Person thereof. Each Holder, by accepting a Security, waives
and releases all such liability.
18. Guarantees
This Security may be entitled to the benefits of certain Guarantees, if
any, which may be made after the original issuance of this Security for the
benefit of the Holders. Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations thereunder of any such Subsidiary Guarantors, the Trustee and the
Holders.
19. Governing Law
The Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflict of laws to the extent that the application of
the laws of another jurisdiction would be required thereby.
20. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
21. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
22. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed
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on the Securities or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request and
without charge to the Securityholder a copy of the Indenture. Requests may be
made as follows:
If to the Company:
Hollywood Entertainment Corporation
0000 XX Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxx 00000
Attention: Secretary
If to the Trustee:
U.S. Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Department
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Date: _______________ Your Signature: _________________________
Sign exactly as your name appears on the
other side of this Security.
Signature Guarantee: ____________________
(Signature must be
guaranteed)
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date; provided, however,
that neither the Company nor any Affiliate of the Company has held any
beneficial interest in this Security, or a portion thereof, at any time on or
prior to the second anniversary of the Issue Date and the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer:
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
(3) __ outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933, as amended;
or
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(4) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act of 1933, as amended; or
(5) __ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(6) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if item (3), (4) or
(6) is checked, the Company or the Trustee may require, prior to registering any
such transfer of the Securities, in their sole discretion, such written legal
opinions, certifications (including an investment letter in the case of box (3))
and other information as the Trustee or the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.14 of the Indenture shall have
been satisfied.
Date: _______________ Your Signature: _________________________
Sign exactly as your name appears on the
other side of this Security.
Signature Guarantee: ____________________
(Signature must be
guaranteed)
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ______________
NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.6 or 4.8 of the Indenture, check the box: If you want to
elect to have only part of this Security purchased by the Company pursuant to
Section 4.6 or 4.8 of the Indenture, state the amount: $
Date: _______________ Your Signature: _________________________
Sign exactly as your name appears on the
other side of this Security.
Signature Guarantee: ____________________
(Signature must be
guaranteed)
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SCHEDULE A
PRINCIPAL AMOUNT: $50,000,000
The following increases or decreases in the principal amount of this Global
Security have been made:
Amount of Amount of Principal Signature of
decrease in increase in Amount of this authorized
Principal Principal Global Security signatory of
Amount of this Amount of this following such Trustee or
Date of Global Global decrease (or Securities
Exchange Security Security increase) Custodian
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