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Exhibit 4.4
INDENTURE, dated as of August 18, 1998, among RENTERS CHOICE, INC.,
a Delaware corporation (the "Company"), having its principal office at 00000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, COLORTYME, INC., a Texas
corporation ("ColorTyme"), having its principal office at 0000 Xxxxxxxx Xxxxx,
Xxxxxx, Xxxxx, RENT-A-CENTER,INC. (formerly known as Thorn Americas, Inc.), a
Delaware corporation ("RAC", and together with ColorTyme, the "Subsidiary
Guarantors") having its principal office at 0000 Xxxx Xxxxx, Xxxxxxx, Xxxxxx
00000, and IBJ XXXXXXXX BANK & TRUST COMPANY, a New York banking corporation,
as trustee (the "Trustee"), having its Corporate Trust Office at 0 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issuance
of (i) the Company's 11% Senior Subordinated Notes due 2008 (the "Initial
Notes"), (ii) if and when issued in exchange for the Initial Notes as provided
in the Registration Rights Agreement (as defined herein), the Company's 11%
Senior Subordinated Notes due 2008 (the "Exchange Notes"), and (iii) if and
when issued pursuant to a private exchange for Initial Notes, the Company's 11%
Senior Subordinated Notes due 2008 (the "Private Exchange Notes", and together
with the Initial Notes and the Exchange Notes, the "Notes"), of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Company
and each Subsidiary Guarantor has duly authorized the execution and delivery of
this Indenture.
Upon the issuance of the Exchange Notes or the Private
Exchange Notes, if any, or the effectiveness of the Shelf Registration
Statement (as defined herein), this Indenture will be subject to, and shall be
governed by, the provisions of the Trust Indenture Act of 1939, as amended,
that are required or deemed to be part of and to govern indentures qualified
thereunder.
All things necessary have been done to make the Notes, when
executed and duly issued by the Company and the Subsidiary Guarantors and
authenticated and delivered hereunder by the Trustee or the Authenticating
Agent, the valid obligations of the Company and the Subsidiary Guarantors and
to make this Indenture a valid agreement of the Company and the Subsidiary
Guarantors in accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
100.
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and words in the singular include
the plural as well as the singular, and words in the plural include
the singular as well as the plural;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or
defined by Commission rule and not otherwise defined herein have the
meanings assigned to them therein, and the terms "cash transaction"
and "self-
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liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP (as defined
herein);
(d) 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;
(e) the word "or" is not exclusive; and
(f) provisions of this Indenture apply to successive
events and transactions.
Certain terms, used principally in Articles Two, Ten, Twelve
and Thirteen, are defined in those Articles.
"Acquisition" means the acquisition of RAC by the Company.
"Additional Assets" means (i) any property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Related Business; (ii) the 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; (iii) Capital Stock of
any Person that at such time is a Restricted Subsidiary, acquired from a third
party; provided, however, that, in the case of clauses (ii) and (iii), such
Restricted Subsidiary is primarily engaged in a Related Business; or (iv)
Capital Stock or Indebtedness of any Person which is primarily engaged in a
Related Business; provided, however, for purposes of the covenant described
under Section 1017, the aggregate amount of Net Available Cash permitted to be
invested pursuant to this clause (iv) shall not exceed at any one time
outstanding 5% of Consolidated Tangible Assets.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. Chase and its Affiliates shall not be deemed an Affiliate of the
Company.
"Apollo" means Apollo Management IV, L.P., and its Affiliates
or any entity controlled thereby or any of the partners thereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), property or other assets (each referred to for
the purposes of this definition as a "disposition") by the Company or any of
its Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction) other than (i) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary, (ii) a disposition of inventory,
equipment, obsolete assets or surplus personal property in the ordinary course
of business, (iii) the sale of Temporary Cash Investments or Cash Equivalents
in the ordinary course or business, (iv) a transaction or a series of related
transactions in which either (x) the fair market value of the assets disposed
of, in the aggregate, does not exceed 2.5% of the Consolidated Tangible Assets
of the Company or (y) the EBITDA related to such assets does not, in the
aggregate, exceed 2.5% of the Company's EBITDA, (v) the sale or discount (with
or without recourse, and on commercially reasonable terms) of accounts
receivable or notes receivable arising in the ordinary course of business, or
the conversion or exchange of accounts receivable for notes receivable, (vi)
the licensing of intellectual property in the ordinary course of business,
(vii) an RTO Facility Swap, (viii) for purposes of the covenant contained in
Section 1017 only, a disposition subject to the covenant contained in Section
1009 or (ix) a disposition of property or assets that is governed by the
provisions of Article 8.
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"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as of the time of determination, the present value (discounted at the
interest rate assumed in making calculations in accordance with FAS 13) of the
total obligations of the lessee for rental payments during the remaining term
of the lease included in such Sale/Leaseback Transaction (including any period
for which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Indebtedness or Preferred Stock multiplied by the amount of such payment by
(ii) the sum of all such payments.
"Bank Indebtedness" means any and all amounts, whether
outstanding on the Issue Date or thereafter Incurred, payable under or in
respect of the Senior Credit Facility, including, without limitation,
principal, premium (if any), interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company or any Restricted Subsidiary whether or not a claim for postfiling
interest is allowed in such proceedings), fees, charges, expenses,
reimbursement obligations, guarantees, other monetary obligations of any nature
and all other amounts payable thereunder or in respect thereof.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such
Board.
"Board Resolution" means a copy of a resolution, certified by
the appropriate officer of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required
by law to close in New York City.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall be the capitalized amount of
such obligation determined in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease.
"Cash Equivalents" means any of the following: (i) securities
issued or fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof, (ii) time deposits, certificates of deposit
or bankers' acceptances of (A) any lender under the Senior Credit Agreement or
(B) any commercial bank having capital and surplus in excess of $500,000,000
and the commercial paper of the holding company of which is rated at least A-2
or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Xxxxx'x (or if at such time neither is issuing ratings, then a comparable
rating of another nationally recognized rating agency), (iii) commercial paper
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Xxxxx'x (or if at such time neither is issuing ratings,
then a comparable rating of another nationally recognized rating agency), (iv)
investments in money market funds complying with the risk limiting conditions
of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act,
(v) repurchase obligations of any lender under the Senior Credit Agreement or
any commercial bank satisfying the requirements of clause (ii) of this
definition, having a term of not more than 30 days, with respect to securities
issued or fully guaranteed or insured by the United States Government, (vi)
securities with maturities of one year or less from the date of acquisition,
issued or fully guaranteed by any state, commonwealth or territory of
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the United States, by any political subdivision or taxing authority of such
state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government, as the case may be, are rated at least A by
S&P or A by Xxxxx'x, and (vii) securities with maturities of six months or less
from the date of acquisition backed ny standby letters of credit issued by any
lender under the Senior Credit Agreement or any commercial bank satisfying the
requirements of clause (ii) of this definition.
"Central Acquisition" means the Company's acquisition of
substantially all of the assets of Central Rents, Inc.
"Change of Control" means (i) any "Person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act except that a Person shall be deemed to
have "beneficial ownership" of all shares that any such Person has the right to
acquire within one year) directly or indirectly, of more than 50% of the Voting
Stock of the Company or a Successor Company (as defined below) (including,
without limitation, through a merger or consolidation or purchase of Voting
Stock of the Company); provided that, the Permitted Holders do not have the
right or ability by voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors; provided further that, the
transfer of 100% of the voting stock of the Company to a Person that has an
ownership structure identical to that of the Company prior to such transfer,
such that the Company becomes a Wholly Owned Subsidiary of such Person, shall
not be treated as a Change of Control for purposes of this Indenture; (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (together with any new directors
whose election by such Board of Directors or whose nomination for election by
the shareholders of the Company was approved by a vote of a majority of the
directors of the Company 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; (iii) the sale, lease, transfer, conveyance
or other disposition (other than by way of merger or consolidation), in one or
a series of related transactions, of all or substantially all of the assets of
the Company and its Restricted Subsidiaries taken as a whole to any Person or
group of related Persons (a "Group") (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) other than a Permitted Holder; or (iv) the
adoption of a plan relating to the liquidation or dissolution of the Company.
"Chase" means The Chase Manhattan Bank.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Renters Choice, Inc. after giving effect to
the Acquisition.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an Officer of the Company with
actual authority to bind the Company on such matters, and delivered to the
Trustee.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA of the Company and its
Restricted Subsidiaries for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such determination for which
consolidated financial statements of the Company are available to (ii)
Consolidated Interest Expense for such four fiscal quarters (in each of clause
(i) and (ii), determined, for each fiscal quarter (or portion thereof) of the
four fiscal quarters ending prior to the Issue Date, on a pro forma basis to
give effect to the Central Acquisition and the Transactions (including the
anticipated disposition of any non-rent-to-own businesses under contract for
sale or held for sale following the Issue Date) as if they had occurred at the
beginning of such four-quarter period); provided, however, that: (1) if the
Company or any Restricted Subsidiary (x) has Incurred any Indebtedness since
the beginning of such period that remains outstanding on such date of
determination or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
effect on a pro forma basis to such
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Indebtedness as if such Indebtedness had been Incurred on the first day of such
period (except that in making such computation, the amount of Indebtedness
under any revolving credit facility outstanding on the date of such calculation
shall be computed based on (A) the average daily balance of such Indebtedness
during such four fiscal quarters or such shorter period for which such facility
was outstanding or (B) if such facility was created after the end of such four
fiscal quarters, the average daily balance of such Indebtedness during the
period from the date of creation of such facility to the date of such
calculation) and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period, or (y) has
repaid, repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of the period that is no longer outstanding on such date of
determination, or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio involves a discharge of Indebtedness (in each case
other than Indebtedness Incurred under any revolving credit facility unless
such Indebtedness has been permanently repaid), EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving effect on a
pro forma basis to such discharge of such Indebtedness, including with the
proceeds of such new Indebtedness, as if such discharge had occurred on the
first day of such period; (2) if since the beginning of such period the Company
or any Restricted Subsidiary shall have made any Asset Disposition of any
company or any business or any group of assets, the EBITDA for such period
shall be reduced by an amount equal to the EBITDA (if positive) directly
attributable to the assets that are the subject of such Asset Disposition for
such period or increased by an amount equal to the EBITDA (if negative)
directly attributable thereto for such period and Consolidated Interest Expense
for such period shall be reduced by an amount equal to the Consolidated
Interest Expense directly attributable to any Indebtedness of the Company or
any Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged
with respect to the Company and its continuing Restricted Subsidiaries in
connection with such Asset Disposition for such period (and, if the Capital
Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense
for such period directly attributable to the Indebtedness of such Restricted
Subsidiary to the extent the Company and its continuing Restricted Subsidiaries
are no longer liable for such Indebtedness after such sale); (3) if since the
beginning of such period the Company or any Restricted Subsidiary (by merger or
otherwise) shall have made an Investment in any Person that thereby becomes a
Restricted Subsidiary, or otherwise acquired any company or any business or any
group of assets, including any such acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder,
EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto (including the Incurrence of any
Indebtedness and including the pro forma expenses and cost reductions
calculated on a basis consistent with Regulation S-X of the Securities Act) as
if such Investment or acquisition occurred on the first day of such period; and
(4) if 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 any
Asset Disposition or any Investment or acquisition of assets that would have
required an adjustment pursuant to clause (2) or (3) above if made by the
Company or a Restricted Subsidiary during such period, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or acquisition of
assets occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is
to be given to an Asset Disposition, Investment or acquisition of assets, or
any transaction governed by the provisions of Article 8, or the amount of
income or earnings relating thereto and the amount of Consolidated Interest
Expense associated with any Indebtedness Incurred or repaid, repurchased,
defeased or otherwise discharged in connection therewith, the pro forma
calculations in respect thereof shall be as determined in good faith by a
responsible financial or accounting officer of the Company, based on reasonable
assumptions. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated at a fixed rate as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in
excess of 12 months). If any Indebtedness bears, at the option of the Company
or a Restricted Subsidiary, a fixed or floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
computed by applying, at the option of the
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Company or such Restricted Subsidiary, either a fixed or floating rate. If any
Indebtedness which is being given pro forma effect was Incurred under a
revolving credit facility, the interest expense on such Indebtedness shall be
computed based upon the average daily balance of such Indebtedness during the
applicable period.
"Consolidated Interest Expense" means, as to any Person, for
any period, the total consolidated interest expense of such Person and its
Subsidiaries determined in accordance with GAAP, minus, to the extent included
in such interest expense, amortization or write-off of financing costs, plus,
to the extent incurred by such Person and its Subsidiaries in such period but
not included in such interest expense, without duplication, (i) interest
expense attributable to Capitalized Lease Obligations and the interest
component of rent expense associated with Attributable Debt in respect of the
relevant lease giving rise thereto, determined as if such lease were a
capitalized lease, in accordance with GAAP, (ii) amortization of debt discount,
(iii) interest in respect of indebtedness of any other Person that has been
Guaranteed by such Person or any Subsidiary, but only to the extent that such
interest is actually paid by such Person or any Restricted Subsidiary, (iv)
non-cash interest expense, (v) net costs associated with Hedging Obligations,
(vi) the product of (A) mandatory Preferred Stock cash dividends in respect of
all Preferred Stock of Subsidiaries of such Person and Disqualified Stock of
such Person held by Persons other than such Person or a Subsidiary multiplied
by (B) a fraction, the numerator of which is one and the denominator of which
is one minus the then current combined Federal, state and local statutory tax
rate of such Person, expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP; and (vii) the cash contributions to
any employee stock ownership plan or similar trust to the extent such
contributions are used by such plan or trust to pay interest to any Person
(other than the referent Person or any Subsidiary thereof) in connection with
Indebtedness Incurred by such plan or trust; provided, however, that as to the
Company, there shall be excluded therefrom any such interest expense of any
Unrestricted Subsidiary to the extent the related Indebtedness is not
Guaranteed or paid by the Company or any Restricted Subsidiary. For purposes of
the foregoing, gross interest expense shall be determined after giving effect
to any net payments made or received by such Person and its Subsidiaries with
respect to Interest Rate Agreements.
"Consolidated Net Income" means, as to any Person, for any
period, the consolidated net income (loss) of such Person and its Subsidiaries
before preferred stock dividends, determined in accordance with GAAP; provided,
however, that there shall not be included in such Consolidated Net Income: (i)
any net income (loss) of any Person if such Person is not (as to the Company) a
Restricted Subsidiary and (as to any other Person) an unconsolidated Person,
except that (A) subject to the limitations contained in clause (iv) below, the
referent Person's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Person during such period to the referent
Person or a Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution to a Subsidiary, to the limitations
contained in clause (iii) below) and (B) the net loss of such Person shall be
included to the extent of the aggregate Investment of the referent Person or
any of its Subsidiaries in such Person; (ii) any net income (loss) of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition; (iii) any net income (loss) of any Restricted
Subsidiary (as to the Company) or of any Subsidiary (as to any other Person) if
such Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Subsidiary,
directly or indirectly, to the Company, except that (A) subject to the
limitations contained in (iv) below, such Person's equity in the net income of
any such Subsidiary for such period shall be included in Consolidated Net
Income up to the aggregate amount of cash that could have been distributed by
such Subsidiary during such period to such Person or another Subsidiary as a
dividend (subject, in the case of a dividend that could have been made to
another Restricted Subsidiary, to the limitation contained in this clause) and
(B) the net loss of such Subsidiary shall be included in determining
Consolidated Net Income; (iv) any charges for costs and expenses associated
with the Transactions; (v) any extraordinary gain or loss and (vi) the
cumulative effect of a change in accounting principles.
"Consolidated Tangible Assets" means, as of any date of
determination, the total assets, less goodwill and other intangibles (other
than patents, trademarks, copyrights, licenses and other
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intellectual property), shown on the balance sheet of the Company and its
Restricted Subsidiaries as of the most recent date for which such a balance
sheet is available, determined on a consolidated basis in accordance with GAAP
less all write-ups (other than write-ups in connection with acquisitions)
subsequent to the date of this Indenture in the book value of any asset (except
any such intangible assets) owned by the Company or any of its Restricted
Subsidiaries.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Company in accordance
with GAAP; provided, however, that "Consolidation" will not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company in any Unrestricted Subsidiary will be accounted for as an
Investment. The term "Consolidated" has a correlative meaning.
"Convertible Preferred Stock" means (i) the convertible
preferred stock of the Company issued to Apollo, resulting in gross proceeds to
the Company of $250 million, and (ii) the convertible preferred stock of the
Company which will be issued to an Affiliate of Bear, Xxxxxxx & Co.
concurrently with the issuance of the Notes, resulting in gross proceeds to the
Company of $10 million.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement (including derivative agreements or arrangements) as to which such
Person is a party or a beneficiary.
"Default" means any event or condition that is, or after
notice or passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors and assigns, or such other depository
institution hereinafter appointed by the Company.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness which, at the date of
determination, has an aggregate principal amount of, or under which, at the
date of determination, the holders thereof are committed to lend up to, at
least $25.0 million and is specifically designated by the Company in the
instrument evidencing or governing such Senior Indebtedness as "Designated
Senior Indebtedness" for purposes of this Indenture.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock (other than the Convertible Preferred Stock) that by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable or exercisable) or upon the happening of any event (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified
Stock or (iii) is redeemable at the option of the holder thereof, in whole or
in part, in the case of clauses (i), (ii) and (iii), on or prior to the 91st
day after the Stated Maturity of the Notes.
"EBITDA" means, as to any Person, for any period, the
Consolidated Net Income for such period, plus the following to the extent
included in calculating such Consolidated Net Income: (i) income tax expense,
(ii) Consolidated Interest Expense, (iii) depreciation expense (other than
depreciation expense relating to rental merchandise), (iv) amortization
expense, and (v) other non-cash charges or non-cash losses, and minus any gain
(but not loss) realized upon the sale or other disposition of any asset of the
Company or its Restricted Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) that is not sold or otherwise disposed of in the
ordinary course of business.
"Equity Offering" means a primary public or private offering
or sale of common stock of the Company, the proceeds of which shall be at least
$25.0 million.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect on the Issue Date (for purposes of the
definitions of the terms "Consolidated Coverage
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Ratio," "Consolidated Interest Expense," "Consolidated Net Income" and
"EBITDA," all defined terms in this Indenture to the extent used in or relating
to any of the foregoing definitions, and all ratios and computations based on
any of the foregoing definitions) and as in effect from time to time (for all
other purposes of this Indenture), including those set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession. All
ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
nonfinancial obligation of any other Person, including any such obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or such other obligation of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection, or deposits made, in
the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor Senior Indebtedness" means, with respect to a
Subsidiary Guarantor, the following obligations, whether outstanding on the
date of this Indenture or thereafter Incurred, without duplication: (i) any
Guarantee of the Senior Credit Facility by such Subsidiary Guarantor and all
other Guarantees by such Subsidiary Guarantor of Senior Indebtedness of the
Company or Guarantor Indebtedness for any other Subsidiary Guarantor; and (ii)
all obligations consisting of the principal of and 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 Subsidiary
Guarantor regardless of whether post filing interest is allowed in such
proceeding) on, and fees and other amounts owing in respect of, all other
Indebtedness of the Subsidiary Guarantor, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that the obligations in respect of such Indebtedness are not
senior in right of payment to the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee; provided, however, that Guarantor Senior
Indebtedness will not include (1) any obligations of such Subsidiary Guarantor
to another Subsidiary Guarantor or any other Affiliate of the Subsidiary
Guarantor or any such Affiliate's Subsidiaries, (2) any liability for Federal,
state, local, foreign or other taxes owed or owing by such Subsidiary
Guarantor, (3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities) or other current liabilities (other
than current liabilities which constitute Bank Indebtedness or the current
portion of any long-term Indebtedness which would constitute Senior
Indebtedness but for the operation of this clause (3), (4) any Indebtedness,
Guarantee or obligation of such Subsidiary Guarantor that is expressly
subordinate or junior to any other Indebtedness, Guarantee or obligation of
such Subsidiary Guarantor, including any Guarantor Senior Subordinated
Indebtedness and Guarantor Subordinated Obligations of such Subsidiary
Guarantor, (5) Indebtedness which is represented by redeemable Capital Stock or
(6) that portion of any Indebtedness that is Incurred in violation of this
Indenture. If any Designated Senior Indebtedness is disallowed, avoided or
subordinated pursuant to the provisions of Section 548 of Title 11 of the
United States Code or any applicable state fraudulent conveyance law, such
Designated Senior Indebtedness nevertheless will constitute Senior
Indebtedness.
"Guarantor Senior Subordinated Indebtedness" means with
respect to a Subsidiary Guarantor, the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee and any other Indebtedness of such Subsidiary
Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that
specifically provides that such Indebtedness is to rank pari passu in right of
payment with the obligations of such Subsidiary Guarantor under the Subsidiary
Guarantee and is not expressly subordinated by its terms in right of payment to
any Indebtedness of such Subsidiary Guarantor which is not Guarantor Senior
Indebtedness of such Subsidiary Guarantor.
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"Guarantor Subordinated Obligation" means, with respect to a
Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) which is expressly
subordinated in right of payment to the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee pursuant to a written agreement.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered in the Register.
"Incur" means issue, assume, enter into any Guarantee of,
incur or otherwise become liable for; provided, however, that any Indebtedness
or Capital Stock of a Person existing at the time such Person becomes a
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall
be deemed to be Incurred by such Subsidiary at the time it becomes a
Subsidiary. Any Indebtedness issued at a discount (including Indebtedness on
which interest is payable through the issuance of additional Indebtedness)
shall be deemed incurred at the time of original issuance of the Indebtedness
at the initial accreted amount thereof.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication): (i) the principal of indebtedness of
such Person for borrowed money, (ii) the principal of obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all reimbursement obligations of such Person, including reimbursement
obligations in respect of letters of credit or other similar instruments (the
amount of such obligations being equal at any time to the aggregate then
undrawn and unexpired amount of such letters of credit or other instruments
plus the aggregate amount of drawings thereunder that have not then been
reimbursed), (iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which purchase
price is due more than one year after the date of placing such property in
final service or taking final delivery and title thereto or the completion of
such services, (v) all Capitalized Lease Obligations and Attributable Debt of
such Person, (vi) the redemption, repayment or other repurchase amount of such
Person with respect to any Disqualified Stock or (if such Person is a
Subsidiary of the Company) any Preferred Stock of such Subsidiary, but
excluding, in each case, any accrued dividends (the amount of such obligation
to be equal at any time to the maximum fixed involuntary redemption, repayment
or repurchase price for such Capital Stock, or if such Capital Stock has no
fixed price, to the involuntary redemption, repayment or repurchase price
therefor calculated in accordance with the terms thereof as if then redeemed,
repaid or repurchased, and if such price is based upon or measured by the fair
market value of such Capital Stock, such fair market value shall be as
determined in good faith by the Board of Directors or the board of directors of
the issuer of such Capital Stock), (vii) all Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person; provided, however, that the amount of Indebtedness
of such Person shall be the lesser of (A) the fair market value of such asset
at such date of determination and (B) the amount of such Indebtedness of such
other Persons, (viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person, and (ix) to the extent not otherwise included in
this definition, net Hedging Obligations of such Person (such obligations to be
equal at any time to the termination value of such agreement or arrangement
giving rise to such Hedging Obligation that would be payable by such Person at
such time).
The amount of Indebtedness of any Person at any date shall be
determined as set forth above or otherwise provided in this Indenture, or
otherwise in accordance with GAAP.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement (including derivative agreement or
arrangements) as to which such
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Person is party or a beneficiary; provided, however, any such agreements
entered into in connection with the Notes shall not be included.
"Investment" in any Person by any other Person means any
direct or indirect advance, loan or other extension of credit (other than to
customers, directors, officers or employees of any Person in the ordinary
course of business) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for
the account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by, such Person. If the
Company or any Restricted Subsidiary of the Company sells or otherwise disposes
of any Capital Stock of any direct or indirect Restricted Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such
entity is no longer a Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to
the fair market value of the Capital Stock of such Subsidiary not sold or
disposed of.
"Issue Date" means the date on which the Initial Notes are
originally issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Available Cash" from an Asset Disposition means cash
payments received (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 Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other noncash form) therefrom, in each
case net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred (including, without limitation, fees and
expenses of legal counsel, accountants and financial advisors), and all
Federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability under GAAP, as a consequence of such Asset Disposition,
(ii) all payments made on any Indebtedness that is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any Lien
upon such assets, or that must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law be repaid out of the
proceeds from such Asset Disposition, (iii) all distributions and other
payments required to be made to minority interest holders in Subsidiaries or
joint ventures as a result of such Asset Disposition or to any other Person
(other than the Company or any Restricted Subsidiary) owning a beneficial
interest in the assets disposed of in such Asset Disposition and (iv)
appropriate amounts to be provided by the seller as a reserve, in accordance
with GAAP, against any liabilities associated with the assets disposed of in
such Asset Disposition and retained by the Company or any Restricted Subsidiary
after such Asset Disposition.
"Net Cash Proceeds" means, with respect to any issuance or
sale of any securities of the Company or any Subsidiary by the Company or any
Subsidiary, or any capital contribution, the cash proceeds of such issuance,
sale or contribution net of attorneys' fees, accountants' fees, underwriters'
or placement agents' fees, discounts or commissions and brokerage, consultant
and other fees and expenses actually incurred in connection with such issuance,
sale or contribution and net of taxes paid or payable as a result thereof.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any Restricted Subsidiary (A) provides any Guarantee or credit
support of any kind (including any undertaking, Guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (B) is directly or
indirectly liable (as a guarantor or otherwise) and (ii) 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 Indebtedness of the
Company or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
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"Offering Memorandum" means the Offering Memorandum dated
August 13, 1998 relating to the Initial Notes.
"Officer" means the Chief Executive Officer, President, Chief
Financial Officer, any Vice President, Controller, Secretary or Treasurer of
the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Holders" Apollo, J. Xxxxxx Xxxxxx and Xxxx X.
Xxxxxx, their respective Affiliates and successors or assigns and any Person
acting in the capacity of an underwriter in connection with a public or private
offering of the Company's Capital Stock.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in any of the following:
(i) a Restricted Subsidiary, the Company or a Person that
will, upon the making of such Investment, become a Restricted
Subsidiary;
(ii) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary;
(iii) Temporary Cash Investments or Cash Equivalents;
(iv) receivables owing to the Company or any Restricted
Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances;
(v) securities or other Investments received as
consideration in connection with RTO Facility Swaps or in sales or
other dispositions of property or assets made in compliance with the
covenant contained in Section 1017;
(vi) securities or other Investments received in
settlement of debts created in the ordinary course of business and
owing to the Company or any Restricted Subsidiary, or as a result of
foreclosure, perfection or enforcement of any Lien, or in satisfaction
of judgments, including in connection with any bankruptcy proceeding
or other reorganization of another Person;
(vii) Investments in existence or made pursuant to legally
binding written commitments in existence on the Issue Date;
(viii) Currency Agreements, Interest Rate Agreements and
related Hedging Obligations, which obligations are Incurred in
compliance with the covenant contained in Section 1010;
(ix) pledges or deposits (A) with respect to leases or
utilities provided to third parties in the ordinary course of business
or (B) otherwise described in the definition of "Permitted Liens";
(x) Investment in a Related Business in an amount not to
exceed $10 million in the aggregate; and
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(xi) other Investments in an aggregate amount not to
exceed the sum of $10 million and the aggregate non-cash net proceeds
received by the Company from the issue or sale of its Capital Stock
(other than Disqualified Stock) subsequent to the Issue Date (other
than non-cash proceeds from an issuance or sale of such Capital Stock
to a Subsidiary of the Company or an employee stock ownership plan or
similar trust); provided, however, that the value of such non-cash net
proceeds shall be as conclusively determined by the Board of Directors
in good faith, except that in the event the value of any non-cash net
proceeds shall be $25 million or more, the value shall be as
determined in writing by an independent investment banking firm of
nationally recognized standing.
"Permitted Liens" means: (i) Liens for taxes, assessments or
other governmental charges not yet delinquent or the nonpayment of which in the
aggregate would not be reasonably expected to have a material adverse effect on
the Company and its Restricted Subsidiaries, or that are being contested in
good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or such Subsidiary, as the
case may be, in accordance with GAAP; (ii) carriers', warehousemen's,
mechanics', landlords', materialmen's, repairmen's or other like Liens arising
in the ordinary course of business in respect of obligations that are not
overdue for a period of more than 60 days or that are bonded or that are being
contested in good faith and by appropriate proceedings; (iii) pledges, deposits
or Liens in connection with workers' compensation, unemployment insurance and
other social security legislation and/or similar legislation or other
insurance-related obligations (including without limitation, pledges or
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements); (iv) pledges, deposits or Liens to secure the
performance of bids, tenders, trade, government or other contracts (other than
for borrowed money), obligations for or under or in respect of utilities,
leases, licenses, statutory obligations, surety, judgment and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business; (v) easements (including reciprocal easement
agreements), rights-of-way, building, zoning and similar restrictions, utility
agreements, covenants, reservations, restrictions, encroachments, changes, and
other similar encumbrances or title defects incurred, or leases or subleases
granted to others, in the ordinary course of business, which do not in the
aggregate materially interfere with the ordinary conduct of the business of the
Company and its Subsidiaries, taken as a whole; (vi) Liens existing on, or
provided for under written arrangements existing on, the Issue Date, or (in the
case of any such Liens securing Indebtedness of the Company or any of its
Subsidiaries existing or arising under written arrangements existing on the
Issue Date) securing any Refinancing Indebtedness in respect of such
Indebtedness so long as the Lien securing such Refinancing Indebtedness is
limited to all or part of the same property or assets (plus improvements,
accessions, proceeds or dividends or distributions in respect thereof) that
secured (or under such written arrangements could secure) the original
Indebtedness; (vii) Liens securing Hedging Obligations Incurred in compliance
with the covenant contained in Section 1010; (viii) Liens arising out of
judgments, decrees, orders or awards in respect of which the Company shall in
good faith be prosecuting an appeal or proceedings for review which appeal or
proceedings shall not have been finally terminated, or the period within which
such appeal or proceedings may be initiated shall not have expired; (ix) Liens
securing (A) Indebtedness Incurred in compliance with clause (i), (ii) or (v)
of the second paragraph of Section 1010 or clause (iv) thereof (other than
Refinancing Indebtedness Incurred in respect of Indebtedness described in the
first paragraph thereof) or (B) Bank Indebtedness; (x) Liens on properties or
assets of the Company securing Senior Indebtedness; (xi) Liens existing on
property or assets of a Person at the time such Person becomes a Subsidiary of
the Company (or at the time the Company or a Restricted Subsidiary acquires
such property or assets); provided, however, that such Liens are not created in
connection with, or in contemplation of, such other Person becoming such a
Subsidiary (or such acquisition of such property or assets), and that such
Liens are limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in respect
thereof) that secured (or, under the written arrangements under which such
Liens arose, could secure) the obligations to which such Liens relate, (xii)
Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness
or other obligations of such Unrestricted Subsidiary; (xiii) Liens securing the
Notes; and (xiv) Liens securing Refinancing Indebtedness Incurred in respect of
any Indebtedness secured by, or securing any refinancing, refunding, extension,
renewal or replacement (in whole or in part) of any other obligation secured
by, any other Permitted Liens, provided that any such new Lien is limited to
all or part
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of the same property or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured (or, under the
written arrangements under which the original Lien arose, could secure) the
obligations to which such Liens relate.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
that is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Purchase Money Obligations" means any Indebtedness of the
Company or any Restricted Subsidiary Incurred to finance the acquisition,
construction or capital improvement of any property or business (including
Indebtedness Incurred within 90 days following such acquisition or
construction), including Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary or assumed by the Company or a
Restricted Subsidiary in connection with the acquisition of assets from such
Person; provided, however, that any Lien on such Indebtedness shall not extend
to any property other than the property so acquired or constructed.
"RAC" means Rent-A-Center, Inc.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to refund, refinance, replace, renew, repay or extend (including pursuant to
any defeasance or discharge mechanism) (collectively, "refinances" and
"refinanced" shall have a correlative meaning) any Indebtedness existing on the
date of this Indenture or Incurred in compliance with this Indenture (including
Indebtedness of the Company that refinances Indebtedness of any Restricted
Subsidiary (to the extent permitted in this Indenture) and Indebtedness of any
Restricted Subsidiary that refinances Indebtedness of another Restricted
Subsidiary) including Indebtedness that refinances Refinancing Indebtedness;
provided, however, that (i) the Refinancing Indebtedness has a Stated Maturity
no earlier than the Stated Maturity of the Indebtedness being refinanced, (ii)
the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of
the Indebtedness being refinanced and (iii) such Refinancing Indebtedness is
Incurred in an aggregate principal amount (or if issued with original issue
discount, an aggregate issue price) that is equal to or less than the aggregate
principal amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding of the Indebtedness being refinanced, plus
fees, underwriting discounts, premiums and other costs and expenses incurred in
connection with such Refinancing Indebtedness; provided further, however, that
Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted
Subsidiary that refinances Indebtedness of the Company or (y) Indebtedness of
the Company or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of August 18, 1997 among the Company, Chase Securities Inc.,
Bear, Xxxxxxx & Co. Inc., NationsBanc Xxxxxxxxxx Securities LLC and Credit
Suisse First Boston Corporation.
"Regular Record Date" means, with respect to any Interest
Payment Date, the February 1 or August 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Related Business" means those businesses, other than the car
rental business, in which the Company or any of its Subsidiaries is engaged on
the date of this Indenture or that are reasonably related or incidental
thereto.
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"Representative" means the trustee, agent or representative
(if any) of an issue of Senior Indebtedness.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit
facility under the Senior Credit Facility (which may include any swing line or
letter of credit facility or subfacility thereunder).
"RTO Facility" means any facility through which the Company or
any of its Restricted Subsidiaries conducts the business of renting merchandise
to its customers and any facility through which a franchisee of the Company or
any of its Subsidiaries conducts the business of renting merchandise to
customers.
"RTO Facility Swap" means an exchange of assets (including
Capital Stock of a Subsidiary or the Company) of substantially equivalent fair
market value, as conclusively determined in good faith by the Board of
Directors, by the Company or a Restricted Subsidiary for one or more RTO
Facilities or for cash, Capital Stock, Indebtedness or other securities of any
Person owning or operating one or more RTO Facilities and primarily engaged in
a Related Business; provided, however, that any Net Cash Proceeds received by
the Company or any Restricted Subsidiary in connection with any such
transaction must be applied in accordance with Section 1017.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or such Restricted Subsidiary transfers such
property to a Person and the Company or such Restricted Subsidiary leases it
from such Person, other than leases (i) between the Company and a Restricted
Subsidiary or (ii) required to be classified and accounted for as capitalized
leases for financial reporting purposes in accordance with GAAP.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Agreement" means the credit agreement dated as
of August 5, 1998, among the Company, the banks and other financial
institutions party thereto from time to time, the documentation agent,
NationsBank, N.A. as syndication agent and Chase, as administrative agent, as
such agreement may be assumed by any successor in interest, and as such
agreement may be amended, supplemented, waived or otherwise modified from time
to time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part, whether
with the original agent and lenders or other agents and lenders or otherwise,
and whether provided under the original Senior Credit Agreement or otherwise).
"Senior Credit Facility" means the collective reference to the
Senior Credit Agreement, any Loan Documents (as defined therein), any notes and
letters of credit issued pursuant thereto and any guarantee and collateral
agreement, patent and trademark security agreement, mortgages, letter of credit
applications and other security agreements and collateral documents, and other
instruments and documents, executed and delivered pursuant to or in connection
with any of the foregoing, in each case as the same may be amended,
supplemented, waived or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether with the original agent and
lenders or other agents and lenders or otherwise, and whether provided under
the original Senior Credit Agreement or otherwise). Without limiting the
generality of the foregoing, the term "Senior Credit Facility" shall include
any agreement (i) changing the maturity of any Indebtedness Incurred thereunder
or contemplated thereby, (ii) adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder, (iii) increasing the
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amount of Indebtedness Incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the terms and conditions thereof.
"Senior Indebtedness" means the following obligations, whether
outstanding on the date of this Indenture or thereafter issued, without
duplication: (i) all obligations consisting of Bank Indebtedness; and (ii) all
obligations consisting of the principal of and 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 regardless
of whether postfiling interest is allowed in such proceeding) on, and fees and
other amounts owing in respect of, all other Indebtedness of the Company,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that the obligations in respect of such
Indebtedness are not superior in right of payment to the Notes; provided,
however, that Senior Indebtedness shall not include (A) any obligation of the
Company to any Subsidiary or any other Affiliate of the Company, or any such
Affiliate's Subsidiaries, (B) any liability for Federal, state, foreign, local
or other taxes owed or owing by the Company, (C) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities) or
other current liabilities (other than current liabilities which constitute Bank
Indebtedness or the current portion of any long-term Indebtedness which would
constitute Senior Indebtedness but for the operation of this clause (C)), (D)
any Indebtedness, Guarantee or obligation of the Company that is expressly
subordinate or junior to any other Indebtedness, Guarantee or obligation of the
Company, (E) Indebtedness which is represented by redeemable Capital Stock or
(F) that portion of any Indebtedness that is Incurred in violation of this
Indenture. If any Designated Senior Indebtedness is disallowed, avoided or
subordinated pursuant to the provisions of Section 548 of Title 11 of the
United States Code or any applicable state fraudulent conveyance law, such
Designated Senior Indebtedness nevertheless will constitute Senior
Indebtedness.
"Senior Subordinated Indebtedness" means the Notes and any
other Indebtedness of the Company that (i) specifically provides that such
Indebtedness is to rank pari passu with the Notes or is otherwise entitled
Senior Subordinated Indebtedness and (ii) is not subordinated by its terms to
any Indebtedness or other obligation of the Company that is not Senior
Indebtedness.
"Shelf Registration Statement" has the meaning ascribed
thereto in the Registration Rights Agreement.
"Significant Subsidiary" means (i) each Subsidiary that for
the most recent fiscal year of such Subsidiary had consolidated revenues
greater than $10.0 million or as at the end of such fiscal year had assets or
liabilities greater than $10.0 million and (ii) any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary.
"S&P" means Standard & Poor's Ratings Service, a division of
The XxXxxx-Xxxx Companies, Inc. and its successors.
"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 Indebtedness of the
Company (whether outstanding on the date of this Indenture or thereafter
Incurred) which is subordinate or junior in right of payment to the Notes
pursuant to a written agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency)
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to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such Person or (ii)
one or more Subsidiaries of such Person.
"Subsidiary Guarantee" means, individually, any Guarantee of
payment of the Notes by a Subsidiary Guarantor pursuant to the terms of this
Indenture, and, collectively, all such Guarantees. Each such Subsidiary
Guarantee will be in the form prescribed in this Indenture.
"Subsidiary Guarantor" means (i) each Subsidiary of the
Company in existence on the Issue Date and (ii) any Restricted Subsidiary
created or acquired by the Company after the Issue Date.
"Successor Company" shall have the meaning assigned thereto in
Section 801.
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations (x) of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof or (y) of any foreign country recognized by the United States of
America rated at least "A" by S&P or "A-1" by Moody's, (ii) investments in time
deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust
company that is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital and surplus aggregating in excess of $250 million (or the
foreign currency equivalent thereof), and whose long-term debt is rated "A" by
S&P or "A-1" by Moody's, (iii) repurchase obligations with a term of not more
than 180 days for underlying securities of the types described in clause (i) or
(ii) above entered into with a bank meeting the qualifications described in
clause (ii) above, (iv) Investments in commercial paper, maturing not more than
180 days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United States
of America with a rating at the time as of which any Investment therein is made
of "P-1" (or higher) according to Moody's or "A-1" (or higher) according to
S&P, (v) Investments in securities with maturities of six months or less from
the date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States of America, or by any political subdivision
or taxing authority thereof, and rated at least "A" by S&P or "A" by Moody's,
(vi) any money market deposit accounts issued or offered by a domestic
commercial bank or a commercial bank organized and located in a country
recognized by the United States of America, in each case, having capital and
surplus in excess of $250 million (or the foreign currency equivalent thereof),
or investments in money market funds complying with the risk limiting
conditions of Rule 2a-7 (or any short-term successor rule) of the SEC, under
the Investment Company Act of 1940, as amended, and (vii) similar short-term
investments approved by the Board of Directors in the ordinary course of
business.
"Term Loan Facility" means the term loan facilities provided
under the Senior Credit Facility.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person, any
accounts payable or any Indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Transactions," means collectively the Acquisition, the
offering of the Initial Notes, the initial borrowings under the Senior Credit
Facility, and all other transactions relating to the Acquisition or the
financing thereof (including the issuance of the Convertible Preferred Stock).
"Transfer Restricted Notes" means Notes that bear or are
required to bear the legend set forth in Section 202 hereof.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
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"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness
of, or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to be so
designated has total consolidated assets of $10,000 or less or (B) if such
Subsidiary has consolidated assets greater than $10,000, then such designation
would be permitted under Section 1009. The Board of Directors may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however,
that immediately after giving effect to such designation, (x) the Company could
Incur at least $1.00 of additional Indebtedness under the first paragraph in
the covenant contained in Section 1010 and (y) no Default or Event of Default
shall have occurred and be continuing. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the resolution of the Company's Board of Directors giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of an entity means all classes of Capital Stock
of such entity then outstanding and normally entitled to vote in the election
of directors or all interests in such entity with the ability to control the
management or actions of such entity.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company, all of the Capital Stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly Owned Subsidiary.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or any
Subsidiary Guarantor to the Trustee to take any action under any provision of
this Indenture, the Company and such Subsidiary Guarantor, as the case may be,
shall furnish to the Trustee an Officers' Certificate in form and substance
reasonably acceptable to the Trustee stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
provided pursuant to Section 1018(a)) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such
individual or such firm, he or it has made such examination or
investigation as is necessary to enable him or it to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any
Guarantor or other obligor on the Notes may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company, any Guarantor or other obligor on the Notes
stating that the information with respect to such factual matters is in the
possession of the Company, any Guarantor or other obligor on the Notes unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agents
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company and the Subsidiary Guarantors, as the case may be. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee, the Company and the Subsidiary
Guarantors, if made in the manner provided in this Section 104.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held
by any Person, and the date of holding the same, shall be proved by the Note
Register.
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(d) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such
a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Notes shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
(including in accordance with Section 310) in respect of anything done, omitted
or suffered to be done by the Trustee, any Paying Agent or the Company or any
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Note.
SECTION 105. Notices, Etc., to Trustee, the Company and any
Guarantor.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder
if made, given, furnished or delivered in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight
courier, to or with the Trustee and received at its Corporate Trust
Office, Attention: Corporate Trust Administration.
(2) the Company or any Subsidiary Guarantor by the
Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given,
furnished or delivered, in writing, or mailed, first-class postage
prepaid, or delivered by recognized overnight courier, to the Company
or such Subsidiary Guarantor addressed to it and received at the
address of its principal office specified in the first paragraph of
this Indenture, or at any other address previously furnished in
writing to the Trustee by the Company or such Subsidiary Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders by the Company, any Subsidiary Guarantor or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at his address as it appears in the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. Neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Any notice mailed to a Holder in
the manner herein prescribed shall be conclusively deemed to have been received
by such Holder, whether or not such Holder actually receives such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the
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Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
If the Company or any Subsidiary Guarantor mails any notice or
communication to any Holder, it shall mail a copy to the Trustee at the same
time.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and each Subsidiary Guarantor shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause.
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.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, (other than the parties hereto, any agent and their
successors hereunder and each of the Holders and, with respect to any
provisions hereof relating to the subordination of the Notes or the rights of
holders of Senior Indebtedness, the holders of Senior Indebtedness) any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO
THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
UPON THE ISSUANCE OF THE EXCHANGE NOTES OR THE EFFECTIVENESS OF THE SHELF
REGISTRATION STATEMENT, THIS INDENTURE SHALL BE SUBJECT TO THE PROVISIONS OF
THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND
SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE U.S. FEDERAL COURTS, IN EACH CASE SITTING IN THE BOROUGH OF
MANHATTAN, AND WAIVES ANY OBJECTION AS TO VENUE OR FORUM NON CONVENIENS.
SECTION 112. Legal Holidays.
In any case where any interest payment date, any date
established for payment of Defaulted Interest pursuant to Section 311 or
redemption date or Stated Maturity of any Note shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the Notes)
payment of principal (or premium, if any) or interest need not be made on such
date, but may be made on the
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next succeeding Business Day with the same force and effect as if made on the
interest payment date or date established for payment of Defaulted Interest
pursuant to Section 311, Redemption Date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue for the period from and after
such interest payment date, redemption date or date established for payment of
Defaulted Interest pursuant to Section 311, Stated Maturity or Maturity, as the
case may be, to the next succeeding Business Day.
SECTION 113. No Personal Liability of Directors, Officers,
Employees, Stockholders or Incorporators.
No director, officer, employee, incorporator or stockholders,
as such, of the Company or any Subsidiary Guarantor shall have any liability
for any obligations of the Company or such Subsidiary Guarantor under the
Notes, this Indenture or any Subsidiary Guarantee or for any claim based on, in
respect of, or by reason of, such obligations or their creations. Each Holder
by accepting a Note waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Notes.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 115. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Subsidiary Guarantors, the Trustee, the Note Registrar and
anyone else shall have the protection of TIA Section 312(c).
ARTICLE TWO. NOTE FORMS
200.
SECTION 201. Forms Generally.
The Notes and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable laws or the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes.
Any portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note. Each Note shall
be dated the date of its authentication.
Initial Notes offered and sold to the qualified institutional
buyers (as defined in Rule 144A under the Securities Act) in the United States
of America ("Rule 144A Note") will be issued on the Issue Date in the form of a
permanent global Note substantially in the form set forth in Section 203 (a
"Rule 144A Global Note") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Rule 144A Global Note may be represented by more than
one certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Rule 144A Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold outside the United States of
America ("Regulation S Note") in reliance on Regulation S shall be issued in
the form of a permanent global Note substantially in the form set forth in
Section 203 (a "Regulation S Global Note"). The Regulation S Global Note will
be deposited with the Trustee, as custodian for the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Regulation S Global Note may be represented
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by more than one certificate, if so required by the Depositary's rules
regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Regulation S Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial Notes offered and sold to institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) and (7) under the Securities
Act) in the United States of America ("Institutional Accredited Investor Note")
will be issued in the form of a permanent global Note substantially in the form
set forth in Section 203 (a "Institutional Accredited Investor Global Note")
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Institutional Accredited Investor Global Note may be represented by more than
one certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Institutional Accredited Investor Global Note may from
time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
The Rule 144A Global Note, the Regulation S Global Note and
the Institutional Accredited Investor Global Note are sometimes collectively
herein referred to as the "Global Notes."
The definitive Notes shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Notes, as evidenced
by their execution of such Notes.
SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Note is sold under an
effective Registration Statement or (ii) an Initial Note is exchanged for an
Exchange Note in connection with an effective Registration Statement, in each
case pursuant to the Registration Rights Agreement, the Rule 144A Global Note
and the Institutional Accredited Investor Global Note shall bear the following
legend (the "Private Placement Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. 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 OR 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, PRIOR TO 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) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, 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) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
SECTION 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
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TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SUCH
SECURITIES, 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) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) ABOVE TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE
FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
The Regulation S Global Note shall bear the following legend
on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION, (2) BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO 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) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, 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) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
SECTION 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION
INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SUCH SECURITIES,
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) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D), (E) OR (F) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN THE CASE OF THE FOREGOING CLAUSE (E), A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE
TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE
SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED
IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL
OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE
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TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
The Global Notes, whether or not an Initial Note, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") 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
REPRESENTATIVE OF DTC 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 THE DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE 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 CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
SECTION 203. Form of Initial Note.
No. [___] Principal Amount $[______________]
CUSIP NO. ____________
11% Senior Subordinated Note due 2008
Renters Choice, Inc., a Delaware corporation promises to pay
to Cede & Co., or registered assigns, the principal sum of [__________________]
Dollars on August 15, 2008.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Note are set forth on the other
side of this Note.
Dated: August 18, 1998 RENTERS CHOICE, INC.
By:
------------------------
Title:
By:
------------------------
Title:
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TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee, certifies
that this is one of the
Notes referred to
in the Indenture.
By
------------------------------
Authorized Signatory August 18, 1998
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[FORM OF REVERSE SIDE OF SENIOR SUBORDINATED NOTE]
11% Senior Subordinated Note due 2008
1. Interest
Renters Choice, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company") promises to pay interest on the
principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually in cash and in
arrears to Holders of record at the close of business on the February 1 and
August 1 immediately preceding the interest payment date on February 15 and
August 15 of each year, commencing February 15, 1999. Interest on the Notes
will accrue from the most recent date to which interest has been paid on the
Notes or, if no interest has been paid, from August 18, 1998. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Notes to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on
which any principal of or interest on the Notes is due and payable, the Company
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal, premium, if any, and/or interest. The Company will pay
interest (except defaulted interest) to the Persons who are registered Holders
of Notes at the close of business on the February 1 or August 1 next preceding
the interest payment date even if the Notes are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date.
Holders must surrender Notes 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.
However, the Company may pay interest by check payable in such money. It may
mail an interest check to a Holder's registered address.
3. Trustee, Paying Agent and Registrar
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York
banking corporation (the "Trustee"), will act as Trustee, Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Noteholder. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture
The Company issued the Notes under an Indenture dated as of
August 18, 1998 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, 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 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The Notes
are subject to all such terms, and Noteholders are referred to the Indenture and
the Act for a statement of those terms.
The Notes are general unsecured senior subordinated
obligations of the Company limited to $175 million aggregate principal amount
(subject to Section 310 of the Indenture). This Note is one of the Initial
Notes referred to in the Indenture. The Notes include the Initial Notes and
any Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes and the
Exchange Notes are treated as a single class of securities under
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the Indenture. The Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the payment of
dividends on, and the purchase or redemption of, Capital Stock of the Company
and its Restricted Subsidiaries, certain purchases or redemptions of
Subordinated Indebtedness, the sale or transfer of assets and Capital Stock of
Restricted Subsidiaries, investments of the Company and its Restricted
Subsidiaries and transactions with Affiliates. In addition, the Indenture
limits the ability of the Company and its Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
The Senior Subordinated Notes will be redeemable, at the
Company's option, in whole or in part, at any time and from time to time on and
after August 15, 2003 and prior to maturity, upon not less than 30 nor more
than 90 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed as a
percentage of principal amount), plus accrued 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:
Year Redemption Price
---- ----------------
2003 . . . . . . . . . . . . . 105.500%
2004 . . . . . . . . . . . . . 103.667%
2005 . . . . . . . . . . . . . 101.833%
2006 and thereafter. . . . . . 100.000%
In addition, at any time and from time to time prior to August
15, 2001, the Company may redeem in the aggregate up to 33.33% of the original
aggregate principal amount of the Notes with the proceeds of one or more Equity
Offerings by the Company at a redemption price (expressed as a percentage of
principal amount thereof) of 111% plus accrued 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 66.67% of the original aggregate principal
amount of the Notes must remain outstanding after each such redemption and that
any such redemption occurs within 90 days following the closing of any such
Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 90 days before the redemption date to each Holder of Notes to be
redeemed at his registered address. Notes in denominations of principal amount
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest on all Notes (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 Notes (or such portions thereof) called for
redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the
right to cause the Company to repurchase all or any part of the Notes of such
Holder at a repurchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of repurchase as provided in, and
subject to the terms of, the Indenture.
8. Subordination and Ranking
The Notes are subordinated to Senior Indebtedness, as defined
in the Indenture. To the extent provided in the Indenture, Senior Indebtedness
must be paid before the Notes may be paid. The Company agrees, and each
Noteholder by accepting a Note agrees, to the subordination provisions
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contained in the Indenture and authorizes the Trustee to give them effect and
appoints the Trustee as attorney-in-fact for such purpose. The Notes will in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
the Company.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes 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 permitted by the Indenture. The Registrar need not register the
transfer of or exchange of (i) any Note selected for redemption (except, in the
case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 days before a selection of Notes to be
redeemed and ending on the date of such selection or (ii) any Notes for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
10. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back
to the Company at its 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.
12. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Notes 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 Notes
to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes and
(ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Noteholder, the Company and the Trustee may amend
the Indenture or the Notes to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Notes in addition to or in place of certificated Notes, or to
add guarantees with respect to the Notes or to secure the Notes, or to add
additional covenants or surrender rights and powers conferred on the Company,
or to comply with any request of the SEC in connection with qualifying the
Indenture under the Act, or to make any change that does not adversely affect
the rights of any Noteholder, or to provide for the issuance of Exchange Notes.
However, no amendment may be made to the subordination provisions of the
Indenture that adversely affects the rights of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness
(or any group or representative thereof authorized to give a consent) consent
to such change.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default
in any payment of interest on any Note when due (whether or not such payment is
prohibited by Article 13 of the Indenture), continued for 30 days, (ii) a
default in the payment of principal of any Note when due at its Stated
Maturity, upon
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optional redemption, upon required repurchase, upon declaration or otherwise,
whether or not such payment is prohibited by Article 13 of the Indenture, (iii)
the failure by the Company to comply with its obligations under Section 801 of
the Indenture, (iv) the failure by the Company to comply for 30 days after
written notice with any of its obligations under Section 1016 of the Indenture
or Sections 1003, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1017, 1019 or 1020
of the Indenture (in each case, other than a failure to purchase Notes when
required under Sections 1016 or 1017 of the Indenture), (v) the failure by the
Company to comply for 60 days after notice with its other agreements contained
in the Notes or the Indenture, (vi) the failure by the Company or any
Significant Subsidiary to pay any Indebtedness within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by the
holders thereof because of a default if the total amount of such Indebtedness
unpaid or accelerated exceeds $25.0 million, (vii) certain events of
bankruptcy, insolvency or reorganization of the Company or a Significant
Subsidiary, (viii) the rendering of any judgment or decree for the payment of
money in an amount (net of any insurance or indemnity payments actually
received in respect thereof prior to or within 90 days from the entry thereof,
or to be received in respect thereof in the event any appeal thereof shall be
unsuccessful) in excess of $25.0 million against the Company or a Significant
Subsidiary that is not discharged, bonded or insured by a third Person if (A)
an enforcement proceeding thereon is commenced or (B) such judgment or decree
remains outstanding for a period of 90 days following such judgment or decree
and is not discharged, waived or stayed or (ix) the failure of any Subsidiary
Guarantee of the Notes by a Subsidiary Guarantor made pursuant to Section 1020
of the Indenture to be in full force and effect (except as contemplated by the
terms thereof or of the Indenture) or the denial or disaffirmation in writing
by any such Subsidiary Guarantor of its obligations under the Indenture or its
Subsidiary Guarantee if such Default continues for 10 days. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least a
majority in principal amount of the outstanding applicable Notes may declare
all such Notes to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Notes being due
and payable immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Notes unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in principal
amount of the Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Noteholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
15. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company, the Subsidiary Guarantors or their
affiliates and may otherwise deal with the Company, the Subsidiary Guarantors
or their affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Subsidiary Guarantors shall not have any liability for any
obligations of the Company or the Subsidiary Guarantors under the Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Note, each
Noteholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Note.
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18. Registration Rights
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated as of August 18, 1998 (the "Registration
Rights Agreement"), between the Company and the Initial Purchasers named
therein. In the event that either (i) an Exchange Offer Registration Statement
is not filed with the Commission on or prior to 60 days after the Issue Date,
(ii) an Exchange Offer Registration Statement is not declared effective within
150 days after the Issue Date, (iii) the Exchange Offer is not consummated on
or prior to 180 days after the Issue Date in respect of tendered Notes and a
Shelf Registration Statement has not been declared effective or (iv) a Shelf
Registration Statement is filed and declared effective within 150 days after
the Issue Date but shall thereafter cease to be effective (at any time that the
Company is obligated to maintain the effectiveness thereof) without being
succeeded within 45 days by an additional Registration Statement filed and
declared effective (each such event referred to in clauses (i), (ii), (iii) and
(iv), a "Registration Default"), the Company will pay liquidated damages to
each holder of Transfer Restricted Securities (as defined in the Registration
Rights Agreement), during the period of one or more such Registration Defaults,
in an amount equal to $0.192 per week per $1,000 principal amount of the Notes
constituting Transfer Restricted Securities held by such holder until the
applicable Registration Statement is filed or declared effective, the Exchange
Offer is consummated or the Shelf Registration Statement again becomes
effective, as the case may be, provided that, except in certain limited
circumstances, the Company's obligation to pay liquidated damages will
terminate upon consummation of the Exchange Offer. All accrued liquidated
damages shall be paid to holders in the same manner as interest payments on the
Notes on semi-annual payment dates which correspond to interest payment dates
for the Notes. Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease.
19. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), 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).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Noteholders. 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.
21. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT
PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
The Company will furnish to any Noteholder upon written
request and without charge to the Noteholder a copy of the Indenture. Requests
may be made to:
Renters Choice, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention of Xxxxx X. Xxxxxxxx
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SUBSIDIARY GUARANTEE
1. Guarantee
The Subsidiary Guarantor, jointly and severally with each
other Subsidiary Guarantor, as a primary obligor and not merely as a surety,
irrevocably and unconditionally Guarantees on an unsecured senior subordinated
basis the performance and punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, all obligations of the Company under
the Indenture and the Notes, whether for payment of principal of or interest on
the Notes, expenses, indemnification or otherwise all in accordance with the
terms set forth in Article XIV of the Indenture. The Subsidiary Guarantor also
agrees to pay any and all costs and expenses (including reasonably attorney's
fees and expenses) incurred by the Trustee or any Holders in enforcing any
rights under this Subsidiary Guarantee, indemnification or otherwise.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
The obligations of the Subsidiary Guarantor shall be limited
to the extent set forth in Article XIV of the Indenture.
This Subsidiary Guarantee shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
principles of conflicts of law to the extent that the application of the law of
another jurisdiction would be required thereby.
This Subsidiary Guarantee is subject to release upon the terms
set forth in the Indenture.
COLORTYME, INC.
By:
------------------------------------
Name:
Title:
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SUBSIDIARY GUARANTEE
1. Guarantee
The Subsidiary Guarantor, jointly and severally with each
other Subsidiary Guarantor, as a primary obligor and not merely as a surety,
irrevocably and unconditionally Guarantees on an unsecured senior subordinated
basis the performance and punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, all obligations of the Company under
the Indenture and the Notes, whether for payment of principal of or interest on
the Notes, expenses, indemnification or otherwise all in accordance with the
terms set forth in Article XIV of the Indenture. The Subsidiary Guarantor also
agrees to pay any and all costs and expenses (including reasonably attorney's
fees and expenses) incurred by the Trustee or any Holders in enforcing any
rights under this Subsidiary Guarantee, indemnification or otherwise.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
The obligations of the Subsidiary Guarantor shall be limited
to the extent set forth in Article XIV of the Indenture.
This Subsidiary Guarantee shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
principles of conflicts of law to the extent that the application of the law of
another jurisdiction would be required thereby.
This Subsidiary Guarantee is subject to release upon the terms
set forth in the Indenture.
RENT-A-CENTER, INC.
By:
--------------------------------
Name:
Title:
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note 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 Note on the books of
the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date:____________________ Your Signature:______________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the Note
Registrar in addition to or substitution for, STAMP), pursuant to S.E.C. Rule
17Ad-15.
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account, without
transfer; or
2 [ ] transferred to the Company; or
3 [ ] transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
4 [ ] transferred pursuant to an effective registration
statement under the Securities Act; or
5 [ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
6 [ ] transferred to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933), that has furnished to the
Trustee a signed letter containing certain
representations and agreements (the form of which
letter appears as Exhibit E to the Indenture); or
7 [ ] transferred pursuant to another available exemption
from the registration requirements of the Securities
Act of 1933.
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Unless one of the boxes is checked, the Trustee may refuse to register any of
the Notes evidenced by this certificate in the name of any person other than
the registered holder thereof; provided, however, that if box (5), (6) or (7)
is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Notes, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request 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, such as the exemption provided by
Rule 144 under such Act.
______________________________
Signature
Signature Guarantee:
___________________________________ _________________________________
(Signature must be guaranteed) Signature
____________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the Note
Registrar in addition to or substitution for STAMP, pursuant to S.E.C. Rule
17Ad-15.
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(TO BE ATTACHED TO GLOBAL NOTES)
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or Notes
Exchange this Global Note this Global Note decrease or increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 1016 or 1017 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 1016 or 1017 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: Your Signature
---------- -------------------------------------
(Sign exactly as your name appears on
the other side of the Note)
Signature Guarantee:
-----------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the Note
Registrar in addition to or substitution for STAMP, pursuant to S.E.C. Rule
17Ad-15.
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[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL 144A CERTIFICATES]
In connection with any transfer of this Note occurring prior
to the date that is the earlier of the date of an effective Registration
Statement (as defined in the Registration Rights Agreement dated as of August
18, 1998) or August 18, 2000, the undersigned confirms that without utilizing
any general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished that comply with the conditions of
transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
Date:
-----------------------
--------------------------------------------------
NOTICE: The signature must correspond with
the name as written upon the face of
the within-mentioned instrument in
every particular, without alteration
or any change whatsoever.
Signature Guarantee:
-------------------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company 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.
Date:
----------------- -------------------------------------------------
NOTICE: To be executed by an executive officer.
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SECTION 204. Form of Exchange Note.
No. [ ] Principal Amount $[ ]
--- -------------
CUSIP NO.
-----------
11% Senior Subordinated Note due 2008
Renters Choice, Inc., a Delaware corporation promises to pay
to Cede & Co., or registered assigns, the principal sum of [ ]
Dollars on August 15, 2008. ----------------
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Note are set forth on the other
side of this Note.
Dated: August 18, 1998 RENTERS CHOICE, INC.
By:
--------------------------
(Title)
By:
--------------------------
(Title)
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee, certifies
that this is one of the
Notes referred to
in the Indenture.
By
---------------------------
Authorized Signatory
August 18, 1998
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[FORM OF REVERSE SIDE OF SENIOR SUBORDINATED NOTE]
11% Senior Subordinated Note due 2008
1. Interest
Renters Choice, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company") promises to pay interest on the
principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually in cash and in
arrears to Holders of record at the close of business on the February 1 and
August 1 immediately preceding the interest payment date on February 15 and
August 15 of each year, commencing February 15, 1999. Interest on the Notes
will accrue from the most recent date to which interest has been paid on the
Notes or, if no interest has been paid, from August 18, 1998. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Notes to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on
which any principal of or interest on the Notes is due and payable, the Company
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal, premium, if any, and/or interest. The Company will pay
interest (except defaulted interest) to the Persons who are registered Holders
of Notes at the close of business on the February 1 or August 1 next preceding
the interest payment date even if the Notes are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date.
Holders must surrender Notes 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.
However, the Company may pay interest by check payable in such money. It may
mail an interest check to a Holder's registered address.
3. Trustee, Paying Agent and Registrar
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York
banking corporation (the "Trustee"), will act as Trustee, Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Noteholder. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
4. Indenture
The Company issued the Notes under an Indenture dated as of
August 18, 1998 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, 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 (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date of the Indenture (the "Act"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the Indenture.
The Notes are subject to all such terms, and Noteholders are referred to the
Indenture and the Act for a statement of those terms.
The Notes are general unsecured senior subordinated
obligations of the Company limited to $175 million aggregate principal amount
(subject to Section 310 of the Indenture). This Note is one of the Exchange
Notes referred to in the Indenture. The Notes include the Initial Notes and
any Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes and the
Exchange Notes are treated as a single class of securities
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under the Indenture. The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Company and its Restricted Subsidiaries, the
payment of dividends on, and the purchase or redemption of, Capital Stock of
the Company and its Restricted Subsidiaries, certain purchases or redemptions
of Subordinated Indebtedness, the sale or transfer of assets and Capital Stock
of Restricted Subsidiaries, investments of the Company and its Restricted
Subsidiaries and transactions with Affiliates. In addition, the Indenture
limits the ability of the Company and its Subsidiaries to restrict
distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
The Senior Subordinated Notes will be redeemable, at the
Company's option, in whole or in part, at any time and from time to time on and
after August 15, 2003 and prior to maturity, upon not less than 30 nor more
than 90 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed as a
percentage of principal amount), plus accrued 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:
Year Redemption Price
---- ----------------
2003 . . . . . . . . . . . . 105.500%
2004 . . . . . . . . . . . . 103.667%
2005 . . . . . . . . . . . . 101.833%
2006 and thereafter. . . . . 100.000%
In addition, at any time and from time to time prior to August
15, 2001, the Company may redeem in the aggregate up to 33.33% of the original
aggregate principal amount of the Notes with the proceeds of one or more Equity
Offerings by the Company at a redemption price (expressed as a percentage of
principal amount thereof) of 111% plus accrued 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 66.67% of the original aggregate principal
amount of the Notes must remain outstanding after each such redemption and that
any such redemption occurs within 90 days following the closing of any such
Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 90 days before the redemption date to each Holder of Notes to be
redeemed at his registered address. Notes in denominations of principal amount
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest on all Notes (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 Notes (or such portions thereof) called for
redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the
right to cause the Company to repurchase all or any part of the Notes of such
Holder at a repurchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of repurchase as provided in, and
subject to the terms of, the Indenture.
8. Subordination and Ranking
The Notes are subordinated to Senior Indebtedness, as defined
in the Indenture. To the extent provided in the Indenture, Senior Indebtedness
must be paid before the Notes may be paid. The Company agrees, and each
Noteholder by accepting a Note agrees, to the subordination provisions
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contained in the Indenture and authorizes the Trustee to give them effect and
appoints the Trustee as attorney-in-fact for such purpose. The Notes will in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
the Company.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes 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 permitted by the Indenture. The Registrar need not register the
transfer of or exchange of (i) any Note selected for redemption (except, in the
case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 days before a selection of Notes to be
redeemed and ending on the date of such selection or (ii) any Notes for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
10. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back
to the Company at its 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.
12. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Notes 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 Notes
to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes and
(ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Noteholder, the Company and the Trustee may amend
the Indenture or the Notes to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Notes in addition to or in place of certificated Notes, or to
add guarantees with respect to the Notes or to secure the Notes, or to add
additional covenants or surrender rights and powers conferred on the Company,
or to comply with any request of the SEC in connection with qualifying the
Indenture under the Act, or to make any change that does not adversely affect
the rights of any Noteholder, or to provide for the issuance of Exchange Notes.
However, no amendment may be made to the subordination provisions of the
Indenture that adversely affects the rights of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness
(or any group or representative thereof authorized to give a consent) consent
to such change.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default
in any payment of interest on any Note when due (whether or not such payment is
prohibited by Article 13 of the Indenture), continued for 30 days, (ii) a
default in the payment of principal of any Note when due at its Stated
Maturity, upon
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optional redemption, upon required repurchase, upon declaration or otherwise,
whether or not such payment is prohibited by Article 13 of the Indenture, (iii)
the failure by the Company to comply with its obligations under Section 801 of
the Indenture, (iv) the failure by the Company to comply for 30 days after
written notice with any of its obligations under Section 1016 of the Indenture
or Sections 1003, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1017, 1019 or 1020
of the Indenture (in each case, other than a failure to purchase Notes when
required under Sections 1016 or 1017 of the Indenture), (v) the failure by the
Company to comply for 60 days after notice with its other agreements contained
in the Notes or the Indenture, (vi) the failure by the Company or any
Significant Subsidiary to pay any Indebtedness within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by the
holders thereof because of a default if the total amount of such Indebtedness
unpaid or accelerated exceeds $25.0 million, (vii) certain events of
bankruptcy, insolvency or reorganization of the Company or a Significant
Subsidiary, (viii) the rendering of any judgment or decree for the payment of
money in an amount (net of any insurance or indemnity payments actually
received in respect thereof prior to or within 90 days from the entry thereof,
or to be received in respect thereof in the event any appeal thereof shall be
unsuccessful) in excess of $25.0 million against the Company or a Significant
Subsidiary that is not discharged, bonded or insured by a third Person if (A)
an enforcement proceeding thereon is commenced or (B) such judgment or decree
remains outstanding for a period of 90 days following such judgment or decree
and is not discharged, waived or stayed or (ix) the failure of any Subsidiary
Guarantee of the Notes by a Subsidiary Guarantor made pursuant to Section 1020
of the Indenture to be in full force and effect (except as contemplated by the
terms thereof or of the Indenture) or the denial or disaffirmation in writing
by any such Subsidiary Guarantor of its obligations under the Indenture or its
Subsidiary Guarantee if such Default continues for 10 days. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least a
majority in principal amount of the outstanding applicable Notes may declare
all such Notes to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Notes being due
and payable immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Notes unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in principal
amount of the Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Noteholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
15. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company, the Subsidiary Guarantors or their
affiliates and may otherwise deal with the Company, the Subsidiary Guarantors
or their affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Subsidiary Guarantors shall not have any liability for any
obligations of the Company or the Subsidiary Guarantors under the Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Note, each
Noteholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Note.
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18. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), 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).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Noteholders. 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.
20. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT
PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
The Company will furnish to any Noteholder upon written
request and without charge to the Noteholder a copy of the Indenture. Requests
may be made to:
Renters Choice, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention of Xxxxx X. Xxxxxxxx
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SUBSIDIARY GUARANTEE
1. Guarantee
The Subsidiary Guarantor, jointly and severally with each
other Subsidiary Guarantor, as a primary obligor and not merely as a surety,
irrevocably and unconditionally Guarantees on an unsecured senior subordinated
basis the performance and punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, all obligations of the Company under
the Indenture and the Notes, whether for payment of principal of or interest on
the Notes, expenses, indemnification or otherwise all in accordance with the
terms set forth in Article XIV of the Indenture. The Subsidiary Guarantor also
agrees to pay any and all costs and expenses (including reasonably attorney's
fees and expenses) incurred by the Trustee or any Holders in enforcing any
rights under this Subsidiary Guarantee, indemnification or otherwise.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
The obligations of the Subsidiary Guarantor shall be limited
to the extent set forth in Article XIV of the Indenture.
This Subsidiary Guarantee shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
principles of conflicts of law to the extent that the application of the law of
another jurisdiction would be required thereby.
This Subsidiary Guarantee is subject to release upon the terms
set forth in the Indenture.
COLORTYME, INC.
By:
---------------------------------
Name:
Title:
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SUBSIDIARY GUARANTEE
1. Guarantee
The Subsidiary Guarantor, jointly and severally with each
other Subsidiary Guarantor, as a primary obligor and not merely as a surety,
irrevocably and unconditionally Guarantees on an unsecured senior subordinated
basis the performance and punctual payment when due, whether at Stated
Maturity, by acceleration or otherwise, all obligations of the Company under
the Indenture and the Notes, whether for payment of principal of or interest on
the Notes, expenses, indemnification or otherwise all in accordance with the
terms set forth in Article XIV of the Indenture. The Subsidiary Guarantor also
agrees to pay any and all costs and expenses (including reasonably attorney's
fees and expenses) incurred by the Trustee or any Holders in enforcing any
rights under this Subsidiary Guarantee, indemnification or otherwise.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
The obligations of the Subsidiary Guarantor shall be limited
to the extent set forth in Article XIV of the Indenture.
This Subsidiary Guarantee shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
principles of conflicts of law to the extent that the application of the law of
another jurisdiction would be required thereby.
This Subsidiary Guarantee is subject to release upon the terms
set forth in the Indenture.
RENT-A-CENTER, INC.
By:
---------------------------------
Name:
Title:
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note 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 Note on the books of
the Company. The agent may substitute another to act for him.
-------------------------------------------------------------------------------
Date: Your Signature:
------------------- ---------------------------
Signature Guarantee:
---------------------------------------
(Signature must be guaranteed)
-------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the Note
Registrar in addition to or substitution for, STAMP), pursuant to S.E.C. Rule
17Ad-15.
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account, without
transfer; or
2 [ ] transferred to the Company; or
3 [ ] transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
4 [ ] transferred pursuant to an effective registration
statement under the Securities Act; or
5 [ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
6 [ ] transferred to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933), that has furnished to the
Trustee a signed letter containing certain
representations and agreements (the form of which
letter appears as Exhibit E to the Indenture); or
7 [ ] transferred pursuant to another available exemption
from the registration requirements of the Securities
Act of 1933.
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Unless one of the boxes is checked, the Trustee may refuse to register any of
the Notes evidenced by this certificate in the name of any person other than
the registered holder thereof; provided, however, that if box (5), (6) or (7)
is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Notes, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request 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, such as the exemption provided by
Rule 144 under such Act.
----------------------------
Signature
Signature Guarantee:
-------------------------------------- -------------------------------
(Signature must be guaranteed) Signature
-------------------------------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the Note
Registrar in addition to or substitution for STAMP, pursuant to S.E.C. Rule
17Ad-15.
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or Notes
Exchange this Global Note this Global Note decrease or increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 1016 or 1017 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 1016 or 1017 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: Your Signature
---------- --------------------------------------
(Sign exactly as your name appears on
the other side of the Note)
Signature Guarantee:
--------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the Note
Registrar in addition to or substitution for STAMP, pursuant to S.E.C. Rule
17Ad-15.
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SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned
Indenture.
IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee
By
----------------------------
Authorized Signatory
Dated: August 18, 1998
ARTICLE THREE. THE NOTES
300.
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $175 million,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 307, 310, 906, 1016, 1017 or 1108 or pursuant to an Exchange Offer.
The Notes shall be known and designated as the "11% Senior
Subordinated Notes due 2008" of the Company. The Stated Maturity of the Notes
shall be August 15, 2008, and they shall bear interest at the rate of 11% per
annum from August 18, 1998, or from the most recent interest payment date to
which interest has been paid or duly provided for, payable semiannually in cash
and in arrears to the Person in whose name the Note (or any predecessor Note)
is registered at the close of business on the February 1 and August 1
immediately preceding the interest payment date on February 15 and August 15 of
each year, commencing February 15, 1999. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months, until the principal
thereof is paid or duly provided for. Interest on any overdue principal,
interest (to the extent lawful) or premium, if any, shall be payable on demand.
The principal of (and premium, if any) and interest on the
Notes shall be payable at the office or agency of the Company maintained for
such purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose; provided, however, that, at the
option of the Company, interest may be paid by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Note Register.
Holders shall have the right to require the Company to
purchase their Notes, in whole or in part, in the event of a Change of Control
pursuant to Section 1016.
The Notes shall be subject to repurchase by the Company
pursuant to an Asset Disposition as provided in Section 1017.
The Notes shall be redeemable as provided in Article Eleven
and in the Notes.
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The Indebtedness evidenced by the Notes shall be subordinated
in right of payment to Senior Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Notes shall be issuable only in fully registered form,
without coupons, and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by two
Officers, of which at least one Officer shall be the President or the Chief
Financial Officer of the Company. The signature of any Officer on the Notes
may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Initial Notes executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Notes, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Initial
Notes directing the Trustee to authenticate the Notes and certifying that all
conditions precedent to the issuance of Notes contained herein have been fully
complied with, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Initial Notes. On Company Order, the Trustee
shall authenticate for original issue Exchange Notes in an aggregate principal
amount not to exceed $175,000,000; provided that such Exchange Notes shall be
issuable only upon the valid surrender for cancellation of Initial Notes of a
like aggregate principal amount in accordance with an Exchange Offer pursuant
to the Registration Rights Agreement. In each case, the Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Company that it may reasonably request in connection with such authentication
of Notes. Such order shall specify the amount of Notes to be authenticated and
the date on which the original issue of Initial Notes or Exchange Notes is to
be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company or any Subsidiary Guarantor, pursuant to
Article Eight, shall be consolidated or merged with or into any other Person or
shall convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Person, and the successor Person resulting
from such consolidation, or surviving such merger, or into which the Company or
such Subsidiary Guarantor shall have been merged, or the Person which shall
have received a conveyance, transfer, lease or other disposition as aforesaid,
shall have executed an indenture supplemental hereto with the Trustee pursuant
to Article Eight, any of the Notes authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Notes as specified in such request for the purpose of
such exchange. If Notes shall at any time be authenticated and
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delivered in any new name of a successor Person pursuant to this Section 303 in
exchange or substitution for or upon registration of transfer of any Notes,
such successor Person, at the option of the Holders but without expense to
them, shall provide for the exchange of all Notes at the time Outstanding for
Notes authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes on behalf of the Trustee. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Note Registrar or Paying Agent
to deal with the Company and its Affiliates.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination. Temporary Notes shall be
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 1002, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Note Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Note Register shall be
open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the Trustee in such capacity, together with any
successor of the Trustee in such capacity, the "Note Registrar") for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at the
office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations of a like aggregate principal amount.
Furthermore, any Holder of a Global Note shall, by acceptance
of such Global Note, agree that transfers of beneficial interest in such Global
Note may be effected only through a book-entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Note shall be required to be reflected in a book entry.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange (including an exchange of Initial
Notes for Exchange Notes), the Company shall execute, and the Trustee shall
authenticate and
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deliver, the Notes which the Holder making the exchange is entitled to receive;
provided that no exchange of Initial Notes for Exchange Notes shall occur until
an Exchange Offer Registration Statement shall have been declared effective by
the Commission, the Trustee shall have received an Officers' Certificate
confirming that the Exchange Offer Registration Statement has been declared
effective by the Commission and the Initial Notes to be exchanged for the
Exchange Notes shall be cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Note Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 304, 906, 1016, 1017 or 1108,
not involving any transfer.
The Register shall be in written form in the English language
or in any other form including computerized records, capable of being converted
into such form within a reasonable time.
SECTION 306. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in
the name of the Depositary for such global Note or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 202.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depositary, or the Trustee as its custodian,
or under the Global Note, and the Depositary may 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 shall impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Note may be transferred in accordance with the rules and procedures of
the Depositary and the provisions of Section 307. If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain
Notes in definitive form ("Physical Notes") in exchange for their beneficial
interests in a Global Note upon written request in accordance with the
Depositary's and the Registrar's procedures. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Note if (i) the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such Global Note or the
Depositary ceases to be a clearing agency registered under the Exchange Act, at
a time when the Depositary is required to be so registered in order to act as
Depositary, and in each case a successor depositary is not appointed by the
Company within 90 days of such notice, (ii) the Company executes and delivers
to the Trustee and Note Registrar an Officers' Certificate stating that such
Global Note shall be so exchangeable or (iii) an Event of Default has occurred
and is continuing and the Note Registrar has received a request from the
Depositary.
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(c) In connection with any transfer of a portion of the
beneficial interest in a Global Note pursuant to subsection (b) of this Section
to beneficial owners who are required to hold Physical Notes, the Note
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of an entire Global
Note to beneficial owners pursuant to subsection (b) of this Section, such
Global Note shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Note, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note delivered in exchange for an
interest in a Global Note pursuant to subsection (c) or subsection (d) of this
Section shall, except as otherwise provided by paragraph (a)(i)(x) and
paragraph (f) of Section 307, bear the applicable legend regarding transfer
restrictions applicable to the Physical Note set forth in Section 202.
(f) The registered holder of a Global Note may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
SECTION 307. Special Transfer Provisions.
(a) The following provisions shall apply with respect to
any proposed transfer of a Rule 144A Note or an Institutional Accredited
Investor Note prior to the expiration of the Resale Restriction Termination
Date (as defined in Section 202 hereof):
(i) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a QIB
shall be made upon the representation of the transferee that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "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
Company 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 its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to an
institutional accredited investor shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set
forth in Section 308 hereof from the proposed transferee and, if
requested by the Company or the Trustee, the delivery of an opinion of
counsel, certification and/or other information satisfactory to each
of them; and
(iii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Note or a beneficial interest therein to a
Non-U.S. Person shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set forth in Section
309 hereof from the proposed transferee and, if requested by the
Company or the Trustee, the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them.
(b) The following provisions shall apply with respect to
any proposed transfer of a Regulation S Note prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial
interest therein to a QIB shall be made upon the representation of the
transferee that it is purchasing the Note for its own
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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 Company 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
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial
interest therein to an institutional accredited investor shall be made
upon receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Section 308 hereof from the
proposed transferee and, if requested by the Company or the Trustee,
the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial
interest therein to a Non-U.S. Person shall be made upon, if requested
by the Company or the Trustee, receipt by the Trustee or its agent of
an opinion of counsel, certification and/or other information
satisfactory to each of them.
After the expiration of the Restricted Period, interests in
the Regulation S Note may be transferred without requiring certification set
forth in Section 308 or any additional certification.
(c) Private Placement Legend. Upon the transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Note Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Note Registrar shall deliver only Notes that bear
the Private Placement Legend unless there is delivered to the Note Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.
(d) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
(e) The Company shall deliver to the Trustee an Officers'
Certificate setting forth the dates on which the Restricted Period terminates
(the "Resale Restriction Termination Date").
The Note Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 306 or this
Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Note Registrar.
(f) No Obligation of the Trustee: (i) The Trustee shall
have no responsibility or obligation to any beneficial owner of a Global Note,
a member of, or a participant in the Depository or other Person with respect to
any ownership interest in the Notes, with respect to the accuracy of the
records of the Depository or its nominee or of any participant or member
thereof or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depository) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to
such Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only to
the registered Holders (which shall be the Depository or its nominee in the
case of a Global Note). The rights of beneficial owners in any Global Note in
global form shall be exercised only through the Depository subject to the
applicable rules and procedures of the Depository. The Trustee may rely and
shall be fully protected and indemnified pursuant to Section 607 in relying
upon information furnished by the Depository with respect to any beneficial
owners, its members and participants.
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(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Note (including without limitation any transfers between or
among Depository participants, members or beneficial owners in any Global Note)
other than to require delivery of such certificates and other documentation of
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 308. Form of Certificate to Be Delivered in
Connection with Transfers to Institutional Accredited Investors.
[date]
RENTERS CHOICE, INC.
IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $______
principal amount of the 11% Senior Subordinated Notes due 2008 (the "Notes") of
Renters Choice, Inc. (the "Company").
Upon transfer, the Notes would be registered in the name of
the new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
(1) We are an institutional "accredited investor" (as
defined in Rules 501(a)(1), (2), (3) and (7) under the Securities Act of 1933,
as amended (the "Securities Act")), purchasing for our own account or for the
account of an institutional "accredited investor" at least $250,000 principal
amount of the Notes, and we are acquiring the Notes not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act. We 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 invest in or purchase securities similar to the
Notes in the normal course of our business. We and any accounts for which we
are acting are each able to bear the economic risk of our or its investment.
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(2) We understand that the Notes have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two years after the
later of the date of original issue and the last date on which the Company or
any affiliate of the Company was the owner of such Notes (or any predecessor
thereto) (the "Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement which has been declared effective
under the Securities Act, (c) in a transaction complying with the requirements
of Rule 144A under the Securities Act, to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a "QIB") that purchases for its
own account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor", in each case in a minimum principal amount of Notes of
$250,000 or (f) pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing cases to
any requirement of law that the disposition of our property or the property of
such investor account or accounts be at all times within our or their control
and in compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Notes is proposed to
be made pursuant to clause (e) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Company and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Company and the Trustee reserve the right prior
to any offer, sale or other transfer prior to the Resale Termination Date of
the Notes pursuant to clauses (d), (e) or (f) above to require the delivery of
an opinion of counsel, certifications and/or other information satisfactory to
the Company and the Trustee.
TRANSFEREE:
BY:
Upon transfer the Notes would be registered in the name of the new beneficial
owner as follows:
Taxpayer ID
Name Address Number:
---- ------- ------
Very truly yours,
[Name of Transferor]
By:
------------------------------- ----------------------------------
Name: Signature Medallion Guaranteed
Title:
SECTION 309. Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S.
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[date]
IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: RENTERS CHOICE, INC. (the "Company") 11% Senior
Subordinated Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Notes was not made to a person in
the United States;
(b) either (i) at the time the buy order was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States or (ii) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------- ------------------------------
Authorized Signature Signature Medallion Guaranteed
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SECTION 310. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee, or
(ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company,
each Subsidiary Guarantor and the Trustee such security or indemnity, in each
case, as may be required by them to save each of them harmless, then, in the
absence of notice to the Company any Subsidiary Guarantor or the Trustee that
such Note has been acquired by a bona fide purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and deliver, in exchange
for any such mutilated Note or in lieu of any such destroyed, lost or stolen
Note, a new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, any Guarantor and any other
obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen
Note shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 311. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any interest payment date shall be paid to the Person
in whose name such Note (or one or more predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 312, to the
address of such Person as it appears in the Note Register or (ii) wire transfer
to an account located in the United States maintained by the payee.
Any interest on any Note which is payable, but is not paid
when the same becomes due and payable and such nonpayment continues for a
period of 30 days shall forthwith cease to be payable to the Holder on the
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and (to the extent lawful) interest on such defaulted interest at the
rate borne by the Notes (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or their
respective predecessor Notes) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date (not less than 30 days
after such notice) of the proposed payment (the "Special Interest
Payment Date"), and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
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arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a record date (the "Special Record Date") for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the Special Interest Payment Date and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Interest Payment Date
therefor to be given in the manner provided for in Section 106, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date and Special Interest Payment Date therefor having been so given,
such Defaulted Interest shall be paid on the Special Interest Payment
Date to the Persons in whose names the Notes (or their respective
predecessor Notes) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 312. Persons Deemed Owners.
Prior to the due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company, any Subsidiary
Guarantor or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 311)
interest on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Company, any Subsidiary Guarantor, the
Trustee nor any agent of the Company, any Subsidiary Guarantor or the Trustee
shall be affected by notice to the contrary.
SECTION 313. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. If
the Company shall acquire any of the Notes other than as set forth in the
preceding sentence, the acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
313. No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes held by the Trustee shall be destroyed by the
Trustee and the Trustee shall send a certificate of such destruction to the
Company.
SECTION 314. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
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SECTION 315. CUSIP Numbers.
The Company in issuing Notes may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers; if so, the Trustee shall use
such "CUSIP" numbers in addition to serial numbers in notices of redemption and
repurchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such CUSIP numbers,
either as printed on the Notes or as contained in any notice of a redemption or
repurchase and that reliance may be placed only on the serial or other
identification numbers printed on the Notes, and any such redemption or
repurchase shall not be affected by any defect in or omission of such CUSIP
numbers. The Company will promptly notify the Trustee of any change in the
CUSIP numbers.
ARTICLE FOUR. SATISFACTION AND DISCHARGE
400.
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Notes expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(i) either
(A) all Notes theretofore authenticated and
delivered (other than (1) Notes which have been lost, stolen
or destroyed and which have been replaced or paid as provided
in Section 310 and (2) Notes for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all Notes not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable by
reason of the making of a notice of redemption or
otherwise; or
(2) will become due and payable at their
Stated Maturity within one year; or
(3) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company,
and the Company in the case of (1), (2) or (3) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
cash or Government Obligations sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal of
(and premium, if any) and interest to the date of such deposit
(in the case of Notes which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(ii) no Default or Event of Default with respect to this
Indenture or the Notes 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 or agreement to which
the Company or any Guarantor of the Notes is a party or by which it is
bound;
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(iii) the Company or any Guarantor has paid or caused to be
paid all sums payable hereunder by the Company or any Guarantor in
connection with all the Notes including all fees and expenses of the
Trustee;
(iv) the Company has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of such
Notes at maturity or the Redemption Date, as the case may be; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture and the termination of the Company's
obligation hereunder have been satisfied.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (i) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive any such satisfaction and
discharge.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Obligations in accordance with Section 401 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and any Guarantor's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 401; provided that if the Company has made any payment of principal of,
premium, if any, or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE. REMEDIES
500.
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article 13 or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in any payment of interest on any Note when
the same becomes due and such default continues for a period of 30
days whether or not such payment shall be prohibited by Article
Thirteen;
(ii) default in the payment of the principal of any Note
when the same becomes due at its Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or otherwise,
whether or not such payment shall be prohibited by Article Thirteen;
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(iii) the Company fails to comply with Section 801;
(iv) the Company fails to comply with Section 1003, 1009,
1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1019, 1020 or 1022
(other than a failure to purchase Notes when required under Section
1016 or 1017) and such failure continues for 30 days after the notice
specified below;
(v) the Company fails to comply with any of its
agreements in the Notes or this Indenture (other than those referred
to in (i), (ii), (iii) or (iv) above) and such failure continues for
60 days after the notice specified below;
(vi) Indebtedness of the Company or any Significant
Subsidiary is not paid within any applicable grace period after final
maturity or the acceleration by the holders thereof because of a
default and the total amount of such Indebtedness unpaid or
accelerated exceeds $25 million;
(vii) the Company or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a custodian of it
or for any substantial part of its property;
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws relating to
insolvency; or
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 90 days;
(ix) any judgment or decree for the payment of money in
excess of $25 million (net of any insurance or indemnity payments
actually received in respect thereof prior to or within 90 days from
the entry thereof, or to be received in respect thereof in the event
any appeal thereof shall be unsuccessful) is rendered against the
Company or any Significant Subsidiary that is not discharged, or
bonded or insured by a third Person and either (A) an enforcement
proceeding has been commenced upon such judgment or decree or (B) such
judgment or decree remains outstanding for a period of 90 days
following the entry of such judgment or decree and is not discharged,
waived or stayed; or
(x) the failure of any Guarantee of the Notes by a Subsidiary
Guarantor to be in full force and effect (except as contemplated by
the terms thereof or of this Indenture) or the denial or
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disaffirmation in writing by any such Subsidiary Guarantor of its
obligations under this Indenture or any such Guarantee of the Notes if
such Default continues for 10 days.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
A Default under clause (iv) or (v) above shall not constitute
an Event of Default until the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes notify the Company of the Default and
the Company does not cure such Default within the time specified in clause (iv)
or (v), as the case may be, after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which with the giving of notice or the lapse of time would become
an Event of Default under clause (iv), (v) or (viii) above, its status and what
action the Company is taking or proposes to take with respect thereto.
If a Default occurs and is continuing and is known to the
Trustee, the Trustee must mail to each Holder notice of the Default within 90
days after it occurs. Except in the case of a Default in the payment of
principal of, premium, if any, or interest on any Note, the Trustee may
withhold such notice if and so long as a committee of its Trust Officers in
good faith determines that withholding notice is in the interests of the
Holders. In addition, the Company is required to deliver to the Trustee, within
120 days after the end of each fiscal year, a certificate indicating whether
the signers thereof know of any Default that occurred during the previous year.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than by reason of an Event of
Default specified in Section 501(vii) or 501(viii)) occurs and is continuing,
the Trustee by written notice to the Company, or the Holders of at least a
majority in principal amount of the outstanding Notes, by written notice to the
Company and the Trustee, may declare the principal (and premium, if any) and
accrued and unpaid interest on all such then outstanding Notes to be due and
payable immediately. Upon the effectiveness of such declaration, such
principal (and premium, if any) and interest will be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
specified in Section 501(vii) or 501(viii) occurs and is continuing, then the
principal amount of, and interest on, all the Notes shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
The Holders of a majority in principal amount of the
outstanding Notes by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. The Trustee may rely upon such notice of rescission without any
independent investigation as to the satisfaction of the conditions in the
preceding sentence. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default specified in Section 501(i) or 501(ii)
occurs and is continuing, the Trustee, in its own name as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any Subsidiary Guarantor (in
accordance with the applicable Subsidiary Guarantee) and collect the moneys
adjudged or decreed to be payable in the
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manner provided by law out of the property of the Company or any Subsidiary
Guarantor, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture or any Guarantee of the Notes by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, including, seeking recourse against any
Subsidiary Guarantor pursuant to the terms of any Subsidiary Guarantee, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy including, without limitation, seeking recourse against any
Subsidiary Guarantor pursuant to the terms of its Subsidiary Guarantee, or to
enforce any other proper remedy, subject however to Section 513. No recovery
of any such judgment upon any property of the Company or any Subsidiary
Guarantor shall affect or impair any rights, powers or remedies of the Trustee
or the Holders.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor,
including any Subsidiary Guarantor, upon the Notes or the property of the
Company, the Subsidiary Guarantors or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file proofs of claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes, to take such other actions (including
participating as a member, voting or otherwise, of any official
committee of creditors appointed in such matter) and to file such
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 of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
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
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of such Holders, vote for the election
of a trustee in bankruptcy or other similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture, the
Notes or the Subsidiary Guarantees may be prosecuted and enforced by the
Trustee without the possession of any of the Notes or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To holders of Senior Indebtedness to the extent
required by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal
(and premium, if any) and interest, respectively; and
FOURTH: The balance, if any, to the Person or Persons
entitled thereto, including the Company or any other obligor on the
Notes, as their interests may appear or as a court of competent
jurisdiction may direct, provided that all sums due and owing to the
Holders and the Trustee have been paid in full as required by this
Indenture.
SECTION 507. Limitation on Suits.
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(i) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of
the outstanding Notes make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee
security or indemnity against any loss, liability or expense as may be
reasonably requested by the Trustee;
(iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in principal amount of
the outstanding Notes do not give the Trustee a direction inconsistent
with the request during such 60-day period.
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any Note or any Subsidiary Guarantee to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, any Note or any Subsidiary Guarantee Notes, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
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SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture (other
than Article XIII), the Holder of any Note shall have the right, which is
absolute and unconditional, to receive payment, as provided herein (including,
if applicable, Article Eleven) and in such Note of the principal of (and
premium, if any) and (subject to Section 311) interest on such Note on the
respective Stated Maturities expressed in such Note (or, in the case of
redemption or repurchase, on the Redemption Date or repurchase) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Guarantee of the Notes
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, any
Subsidiary Guarantor, any other obligor on the Notes, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 310, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Notes shall 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, provided that
(i) such direction shall not be in conflict with any rule
of law or with this Indenture or any Subsidiary Guarantee,
(ii) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the
Holders not consenting, it being understood that (subject to Section
601) the Trustee shall have no duty to ascertain whether or not such
actions or forbearance are unduly prejudicial to such Holders; and
(iii) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
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Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 508 and 902, the Holders of a majority in
aggregate principal amount of the Outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for the Notes) may
on behalf of the Holders of all the Notes, by written notice to the Trustee,
waive any existing Default or Event of Default and its consequences under this
Indenture or any Subsidiary Guarantee except a continuing Default or Event of
Default in the payment of interest on, premium, if any, or the principal of,
any such Note held by a non-consenting Holder, or in respect of a covenant or a
provision which cannot be amended or modified without the consent of all
Holders.
In the event that any Event of Default specified in Section
501(vi) shall have occurred and be continuing, such Event of Default and all
consequences thereof (including without limitation any acceleration or
resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders of the
Notes, if within 30 days after such Event of Default arose (i) the Indebtedness
that is the basis for such Event of Default has been discharged, or (ii) the
holders thereof have rescinded or waived the acceleration, notice or action (as
the case may be) giving rise to such Event of Default, or (iii) if the Default
that is the basis for such Event of Default has been cured.
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 Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company, the Subsidiary Guarantors and any other obligors
upon the Notes, covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company, any Subsidiary Guarantor or any such obligor from paying all or
any portion of the principal of, premium, if any, or interest on the Notes
contemplated herein or in the Notes or which may affect the covenants or the
performance of this Indenture; and each of the Company, any Subsidiary
Guarantor and any such obligor (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any Note
on or after the respective Stated Maturities expressed in such Note (or, in the
case of redemption, on or after the Redemption Date).
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ARTICLE SIX. THE TRUSTEE
600.
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a Default or an
Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
the Trustee should not be liable except for the performance of such
duties as specifically set forth in the Indenture and no others; and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith or willful misconduct 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; but in the case of any such
certificates or opinions, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture, but not to verify the contents thereof.
(b) In case a Default or an Event of Default has occurred
and is continuing of which a Trust Officer of the Trustee has actual knowledge
or of which written notice of such Default or Event of Default shall have been
given to the Trustee by the Company, any other obligor of the Notes or by any
Holder, 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 their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(i) this paragraph (c) shall not be construed to limit
the effect of paragraph (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in aggregate principal
amount of the Outstanding Notes relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section and to the TIA.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder,
the Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such Default hereunder actually known to a Trust
Officer of the Trustee, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the payment of the
principal of (or premium, if any) or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Trust Officers
of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Holders; and
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provided further that in the case of any Default of the character specified in
Section 501(iii) no such notice to Holders shall be given until at least 30
days after the occurrence thereof. Notwithstanding anything to the contrary
expressed in this Indenture, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default hereunder unless and until the Trustee shall
have received written notice thereof from the Company at its principal
Corporate Trust Office as specified in Section 105, except in the case of an
Event of Default under Sections 501(i) or 501(ii) (provided that the Trustee is
the Paying Agent).
SECTION 603. Certain Rights 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 their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Subject to the provisions of TIA Sections 315(a)
through 315(d):
(i) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon (whether in its
original or facsimile form) any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties and the Trustee need not
investigate any fact or matter stated in the documents;
(ii) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(iii) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith or willful misconduct on its part, request
and rely upon an Officers' Certificate or an Opinion of Counsel and
shall not liable for any action it takes or omits to take in good
faith reliance on such Officers' Certificate or Opinion of Counsel;
(iv) the Trustee may consult with counsel of its selection
and any advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(v) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs,
expenses, losses and liabilities which might be incurred by it in
compliance with such request or direction;
(vi) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not
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be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(viii) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture; provided, however, that the
Trustee's conduct does not constitute willful misconduct or
negligence.
(c) The Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness
and it shall not be responsible for the Company's use of the proceeds from the
Notes. The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes, except that the Trustee represents that it
is duly authorized to execute and deliver this Indenture, authenticate the
Notes and perform its obligations hereunder and that the statements made by it
in a Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. The Trustee shall
not be accountable for the use or application by the Company of the proceeds of
the Notes.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar, any
Authenticating Agent or any other agent of the Company or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of Notes
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Note Registrar, Authenticating Agent or such other agent.
SECTION 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust hereunder for the purposes for
which they were received, but 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.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(i) to pay to the Trustee from time to time such
compensation as shall be agreed to in writing between the Company and
the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents, consultants and counsel and costs and expenses of collection),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
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(iii) to indemnify each of the Trustee or any predecessor
Trustee (and their respective directors, officers, stockholders,
employees and agents) for, and to hold them harmless against, any and
all loss, damage, claim, liability or expense, including taxes (other
than taxes based on the income of the Trustee) incurred without gross
negligence, willful misconduct or bad faith on their part, arising out
of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of the Trustee's powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a lien prior to the Holders
of the Notes upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(vii) or (viii),
the expenses (including the reasonable charges and expenses of its counsel) of
and the compensation for such services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1), and which shall have an
office in The City of New York and shall have a combined capital and surplus of
at least $50,000,000. If the Trustee does not have an office in The City of
New York, the Trustee may appoint an agent in The City of New York reasonably
acceptable to the Company to conduct any activities which the Trustee may be
required under this Indenture to conduct in The City of New York. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of Federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 608,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 608, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 609. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument
executed by authority of the Board of Directors, a copy of which shall be
delivered to the resigning Trustee and a copy to the successor trustee. If an
instrument of acceptance required by this Section shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding
Notes, delivered to the Trustee and to the Company. The Trustee so removed
may, at the expense of the Company, petition any court of competent
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jurisdiction for the appointment of a successor Trustee if no successor Trustee
is appointed within 30 days of such removal.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Note for at least
six months, or
(ii) the Trustee shall cease to be eligible under Section
608 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for
at least six months, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a custodian of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company, by a Board Resolution, may remove the
Trustee, or (B) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, at the expense of the Company on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 106. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Notwithstanding the
replacement of the Trustee pursuant to this Section 610, the Company's
obligations under Section 607 shall continue for the benefit of the retiring
Trustee with regard to expenses and liabilities incurred by it and compensation
earned by it prior to such replacement or otherwise under the Indenture. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
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No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Notes shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes.
In case at that time any of the Notes shall not have been authenticated, any
successor Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such
cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee shall
have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Notes in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 612. Trustee's Application for Instructions from the
Company.
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the
date on and/or after which such action shall be taken or such omission shall be
effective. Subject to Section 610, the Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than three Business Days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
ARTICLE SEVEN. HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
700.
SECTION 701. Company to Furnish Trustee Names and Addresses.
The Company will furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than 10 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular Record
Date; and
(b) at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content to that in Subsection (a) hereof as
of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished.
SECTION 702. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held
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accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with TIA Section 312, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).
SECTION 703. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Notes, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers' Certificates).
The Trustee also shall comply with TIA Section 313(b). A
copy of each report at the time of its mailing to Holders shall be filed by the
Trustee with the Commission and each stock exchange (if any) on which the Notes
are listed. The Company agrees to notify promptly the Trustee whenever the
Notes become listed on any stock exchange and of any delisting thereof.
SECTION 704. Notice of Defaults.
The Company is required to deliver to the Trustee, within 30
days after the occurrence thereof, written notice of any event which would
constitute certain Defaults, their status and what action the Company is taking
or proposes to take in respect thereof.
ARTICLE EIGHT. MERGER AND CONSOLIDATION
800.
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company will not in a single transaction or series of
related transactions consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under
the laws of the United States of America, any State thereof or the
District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Notes and hereunder;
(ii) immediately after giving effect to such transaction
(and treating any Indebtedness that becomes an obligation of the
Successor Company or any Subsidiary of the Successor Company as a
result of such transaction as having been incurred by the Successor
Company or such Restricted Subsidiary at the time of such
transaction), no Default or Event of Default shall have occurred and
be continuing;
(iii) immediately before and after giving effect to such
transaction, the Company or the Successor Company if the Company is
not the continuing obligor under this Indenture would at the time of
such transaction or series of transactions, after giving pro forma
effect to such transaction as if such transaction had occurred on the
first day of the four quarter period ending on or immediately prior to
the date of such transaction, be able to Incur at least $1.00 of
Indebtedness pursuant to clause (a) of Section 1010; and
(iv) the Company shall have delivered to the Trustee (A)
an Officers' Certificate, stating that (1) such Officers are not aware
of any Default or Event of Default that shall have
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happened and be continuing and (2) such consolidation, merger or
transfer and such supplemental indenture comply with this Indenture;
provided that no Officers' Certificate will be required as to matters
described in clause (A)(1) of this clause (iv) for a consolidation,
merger or transfer described in the last paragraph of this Section
801, and (B) an Opinion of Counsel, stating that such consolidation,
merger or transfer and such supplemental indenture comply with this
Indenture, both in the form required by this Indenture; provided that
(1) in giving such opinion such counsel may rely on such Officers'
Certificate as to any matters of fact (including without limitation as
to compliance with the foregoing clauses (ii) and (iii)), and (2) no
Opinion of Counsel will be required for a consolidation, merger or
transfer described in the last paragraph of this Section 801.
Notwithstanding the foregoing clauses (ii) and (iii), (x) any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company and (y) the Company may merge with
an Affiliate incorporated solely for the purpose of reincorporating the Company
in another jurisdiction to realize tax or other benefits.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the
Company with or into any other corporation or any conveyance, transfer, lease
or other disposition of all or substantially all of the assets of the Company
to any Person in accordance with Section 801, the Successor Company will
succeed to, and be substituted for, and may exercise every right and power of,
the Company hereunder and thereafter the predecessor Company shall be released
from all obligations and covenants hereunder, but, in the case of conveyance,
transfer or lease of all or substantially all its assets, the predecessor
Company will not be released from the obligation to pay the principal of and
interest on the Notes.
ARTICLE NINE. SUPPLEMENTS AND AMENDMENTS TO INDENTURE
900.
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, the
Subsidiary Guarantors, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(i) to cure any ambiguity, defect or inconsistency; or
(ii) to 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); or
(iii) to add Guarantees with respect to the Notes
(including those of Subsidiary Guarantors); or
(iv) to provide for the assumption by a successor
corporation, partnership, trust or limited liability company of the
obligations of the Company hereunder; or
(v) to secure the Notes; or
(vi) to confirm and evidence the release and discharge of
any Guarantee of the Notes or Lien with respect to or securing the
Notes when such release and discharge is permitted by and provided for
hereunder; or
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(vii) to provide that any Indebtedness that becomes or will
become an obligation of the Successor Company pursuant to a
transaction governed by Section 801 (and that is not a Subordinated
Obligation) is Senior Subordinated Indebtedness for purposes of this
Indenture; or
(viii) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power conferred
upon the Company; or
(ix) to make any other change that does not adversely
affect the rights of any Holder; or
(x) to comply with any requirement of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act.
However, no amendment may be made to the subordination
provisions of the Indenture that adversely affects the rights of any holder of
Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of at least a majority in
principal amount of the Outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes), the Company,
the Subsidiary Guarantors, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby (with respect
to any Notes held by a nonconsenting Holder of the Notes):
(i) reduce the amount of Notes whose Holders must consent
to an amendment; or
(ii) reduce the stated rate of or extend the stated time
for payment of interest on any Note; or
(iii) reduce the principal of or extend the Stated Maturity
of any Note; or
(iv) reduce the premium payable upon the redemption or
repurchase of any Note or change the time at which any Note may be
redeemed as described in Section 1101; or
(v) make any Note payable in money other than that stated
in the Note; or
(vi) impair the right of any Holder to receive payment of
principal of and 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
(vii) make any change in the amendment provisions which
require each Holder's consent or in the waiver provisions; or
(viii) make any change to the subordination provisions of
this Indenture that adversely affects the rights of any Holder.
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The consent of the Holders is not necessary under this
Indenture to approve the particular form of any proposed supplemental
indenture. It is sufficient if such consent approves the substance of the
proposed supplemental indenture.
SECTION 903. Execution of Supplemental Indentures.
The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities, as determined by the Trustee in its sole discretion under this
Indenture or otherwise. In signing or refusing to sign any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby (except as provided in Section 902).
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
shall so determine, new Notes so modified as to conform to any such
supplemental indenture may be prepared and executed by the Company, and the
Subsidiary Guarantors and the Company shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms, the cost and expense
of which will be borne by the Company in exchange for Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, the Subsidiary
Guarantors and the Trustee of any supplemental indenture pursuant to the
provisions of Section 902, the Company shall give notice thereof to the Holders
of each Outstanding Note affected, in the manner provided for in Section 106,
setting forth in general terms the substance of such supplemental indenture.
The failure to give such notice to all the Holders, or any defect therein, will
not impair or affect the validity of the supplemental indenture.
SECTION 908. Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the rights of
any holders of Senior Indebtedness under Article Thirteen unless the requisite
holders of each issue of Senior Indebtedness affected thereby shall have
consented to such supplemental indenture.
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ARTICLE TEN. COVENANTS
1000.
SECTION 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders that it will duly and punctually pay the principal of (and premium, if
any) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office
or agency where the Notes may be presented or surrendered for payment, where,
if applicable, the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Corporate Trust Office of the
Trustee shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any 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.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (or premium, if any) or
interest on any of the Notes, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal of (or
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure to so act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date of the principal of (or premium,
if any) or interest on any Notes, deposit with a Paying Agent a sum in same day
funds (or New York Clearing House funds if such deposit is made prior to the
date on which such deposit is required to be made) that shall be available to
the Trustee by 11:00 a.m. Eastern Standard Time on such due date sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure to so act.
The Company will cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Notes in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
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(ii) give the Trustee notice of any default by the Company
(or any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest; and
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
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 (or
premium, if any) or interest on any Note and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general 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 to the Company, may at the
expense of the Company cause to be published once, in a leading daily newspaper
(if practicable, The Wall Street Journal (Eastern Edition)) printed in the
English language and of general circulation in New York City, 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 publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and that of each Restricted Subsidiary and the corporate
rights (charter and statutory) licenses and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be
required to preserve any such existence (except the Company) right, license or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Restricted Subsidiaries, taken as a whole, and that
the loss thereof is not, and will not be, disadvantageous in any material
respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (ii) all lawful claims for labor, materials and supplies, which,
if unpaid, might by law become a material liability or lien upon the property
of the Company or any Restricted Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company) are being maintained in accordance with
GAAP.
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SECTION 1006. Maintenance of Properties.
The Company will cause all material properties owned by the
Company or any Restricted Subsidiary or used or held for use in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in normal condition, repair and working order and will cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly conducted at all
times; provided, however, that nothing in this Section shall prevent the
Company or any of its Restricted Subsidiaries from discontinuing the
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not adverse in any material respect
to the Holders.
SECTION 1007. Insurance.
To the extent available at commercially reasonable rates, the
Company will maintain, and will cause its Restricted Subsidiaries to maintain,
insurance with responsible carriers against such risks and in such amounts, and
with such deductibles, retentions, self-insured amounts and co-insurance
provisions, as are customarily carried by similar businesses, of similar size
in their country of organization, including professional and general liability,
property and casualty loss, workers' compensation and interruption of business
insurance. In the event the Company determines that insurance satisfying the
first sentence of this Section 1007 is not available at commercially available
rates, it shall provide an Officers' Certificate to such effect to the Trustee
and the Trustee may conclusively rely on the determinations set forth therein.
SECTION 1008. Compliance with Laws.
The Company shall comply, and shall cause each of its
Restricted Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of America, all
states and municipalities thereof, and of any governmental regulatory
authority, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as
would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION 1009. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary, directly or indirectly, to (i) declare or pay any
dividend or make any distribution on or in respect of its Capital Stock
(including any payment to its stockholders in connection with any merger or
consolidation involving the Company) except (A) dividends or distributions
payable solely in its Capital Stock (other than Disqualified Stock) and (B)
dividends or distributions payable to the Company or any Restricted Subsidiary
(and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to its
other shareholders on no more than a pro rata basis, measured by value), (ii)
purchase, redeem, retire or otherwise acquire for value any Capital Stock of
the Company or any Restricted Subsidiary held by Persons other than the Company
or another Restricted Subsidiary, (iii) purchase, repurchase, redeem, defease
or otherwise acquire or retire for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment, any Subordinated
Obligations (other than the purchase, repurchase, redemption or other
acquisition of Subordinated Obligations in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due
within one year of the date of acquisition) or (iv) make any Investment (other
than a Permitted Investment) in any Person (any such dividend, distribution,
purchase, redemption, repurchase, defeasance, other acquisition, retirement or
Investment being herein referred to as a "Restricted Payment") if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment: (A) a
Default shall have occurred and be continuing (or would result therefrom); (B)
the Company could not incur at least an additional $1.00 of Indebtedness under
paragraph (a) of the covenant contained in Section 1010; or (C) the aggregate
amount of such Restricted Payment and all other Restricted Payments (the amount
so expended, if other
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than in cash, to be determined in good faith by the Company's Board of
Directors, whose determination shall be conclusive and evidenced by a
resolution of the Company's Board of Directors) declared or made subsequent to
the date of this Indenture would exceed the sum of: (1) 50% of the
Consolidated Net Income accrued during the period (treated as one accounting
period) from the end of the most recent fiscal quarter ending prior to the
Issue Date to the end of the most recent fiscal quarter ending prior to the
date of such Restricted Payment for which consolidated financial statements of
the Company are available (or, in case such Consolidated Net Income shall be a
deficit, minus 100% of such deficit); (2) the aggregate Net Cash Proceeds
received by the Company from the issuance or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Issue Date (other than an issuance
or sale to a Restricted Subsidiary of the Company); provided that in the event
such issuance or sale is to an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries for the benefit of their
employees, to the extent the purchase by such plan or trust is financed by
Indebtedness of such plan or trust and for which the Company is liable as a
guarantor or otherwise, such aggregate amount of Net Cash Proceeds shall be
limited to the aggregate amount of principal payments made by such plan or
trust with respect to such Indebtedness); and (3) in the case of the
disposition or repayment of any Investment constituting a Restricted Payment
(without duplication of any amount deducted in calculating the amount of
Investments at any time outstanding included in the amount of Restricted
Payments), an amount equal to the lesser of (x) the return of capital or
similar repayment with respect to such Investment and (y) the initial amount of
such Investment, in either case, less the cost of the disposition of such
Investment.
(b) The provisions of the foregoing paragraph (a) will
not prohibit: (i) any purchase, redemption, repurchase, defeasance, retirement
or other acquisition of Capital Stock of the Company or Subordinated
Obligations made by exchange (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which cash is
paid in lieu of the issuance of fractional shares) 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 or an employee stock ownership plan or other trust established by
the Company or any of its Subsidiaries); provided, however, that (A) such
purchase, redemption, repurchase, defeasance, retirement or other acquisition
shall be excluded in subsequent calculations of the amount of Restricted
Payments and (B) the Net Cash Proceeds or reduction of Indebtedness from such
sale shall be excluded in calculations under clauses (B) and (C) of the
previous paragraph; (ii) any purchase, redemption, repurchase, defeasance,
retirement or other acquisition of Subordinated Obligations made by exchange
for, or out of the proceeds of the substantially concurrent sale of,
Subordinated Obligations of the Company that is permitted to be Incurred
pursuant to the covenant contained in Section 1010; provided, however, that
such purchase, redemption, repurchase, defeasance, retirement or other
acquisition shall be excluded in subsequent calculations of the amount of
Restricted Payments; (iii) any purchase, redemption, repurchase, defeasance,
retirement or other acquisition of Subordinated Obligations from Net Available
Cash to the extent permitted by the covenant contained in Section 1017;
provided, however, that such purchase, redemption, repurchase, defeasance,
retirement or other acquisition shall be excluded in subsequent calculations of
the amount of Restricted Payments; (iv) dividends paid within 60 days after the
date of declaration thereof if at such date of declaration such dividend would
have complied with paragraph (a); provided, however, that such dividend shall
be included in subsequent calculations of the amount of Restricted Payments;
(v) any purchase or redemption of any shares of Capital Stock of the Company
from employees of the Company and its Subsidiaries pursuant to the repurchase
provisions under employee stock option or stock purchase agreements or other
agreements to compensate management employees in an aggregate amount after the
date of this Indenture not in excess of $2.5 million in any fiscal year, plus
any unused amounts under this clause (v) from prior fiscal years; provided,
however, that such purchases or redemptions shall be excluded in subsequent
calculations of the amount of Restricted Payments; or (vi) the repurchase of
the Company's common stock in an aggregate amount not to exceed the amount by
which the proceeds from the issuance of the Convertible Preferred Stock exceeds
$235 million; provided, however, the aggregate amount of repurchases pursuant
to this clause (vi) shall not exceed $25 million.
(c) Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and
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setting forth the basis upon which the calculations required by this Section
1009 were computed, which calculations may be based upon the Company's latest
available financial statements. The Trustee shall have no duty to recompute or
recalculate or verify the accuracy of the information set forth in such
Officers' Certificate.
(d) The Company will not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the second to
last sentence of the definition of "Unrestricted Subsidiary."
SECTION 1010. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, Incur any Indebtedness; provided, however, that the
Company and any Restricted Subsidiary which is a Subsidiary Guarantor may Incur
Indebtedness if on the date of the Incurrence of such Indebtedness the
Consolidated Coverage Ratio would be greater than (i) 2.25 to 1.00, if such
Indebtedness is Incurred on or prior to the second anniversary of the Issue
Date and (ii) 2.50 to 1.00 if such Indebtedness is Incurred thereafter.
(b) Notwithstanding the foregoing paragraph (a), the
Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to the Senior Credit Facility (or any
refinancing thereof) in a maximum principal amount not to exceed $962.25
million; (ii) the Subsidiary Guarantees and Guarantees of Indebtedness incurred
pursuant to paragraph (a) or clause (i) of this paragraph (b); (iii)
Indebtedness (A) of the Company to any Restricted Subsidiary and (B) of any
Wholly Owned Subsidiary to the Company or any Restricted Subsidiary; provided,
however, that any subsequent issuance or transfer of any Capital Stock or any
other event that results in any such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Company or a Wholly Owned Subsidiary) will be
deemed, in each case, an Incurrence of Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, in the amount that remains
outstanding following such issuance or transfer of such securities; (iv)
Indebtedness represented by the Notes, any Indebtedness (other than the
Indebtedness described in clauses (i), (ii) or (iii) above) outstanding on the
date of this Indenture and any Refinancing Indebtedness Incurred in respect of
any Indebtedness described in this clause (iv) or the previous paragraph; (v)
Indebtedness of the Company or any Restricted Subsidiary in the form of
Capitalized Lease Obligations, Purchase Money Obligations or Attributable Debt,
and any Refinancing Indebtedness with respect thereto, in an aggregate amount
not in excess of 2.5% of Consolidated Tangible Assets at any one time
outstanding; (vi) Indebtedness under Hedging Obligations; provided, however,
that such Hedging Obligations are entered into for bona fide hedging purposes
of the Company or any Restricted Subsidiary and are in the ordinary course of
business or are required by the Senior Credit Facility; (vii) Indebtedness
evidenced by letters of credit assumed in the Transactions or issued in the
ordinary course of business of the Company to secure workers' compensation and
other insurance coverages; (viii) Guarantees of the Company in respect of
Indebtedness of franchisees not to exceed $50 million at any one time
outstanding; and (ix) Indebtedness (which may comprise Bank Indebtedness) in an
aggregate principal amount at any one time outstanding not in excess of $25.0
million.
(c) Notwithstanding the foregoing, neither the Company
nor any Restricted Subsidiary shall Incur any Indebtedness pursuant to the
foregoing paragraph that permits Refinancing Indebtedness in respect of
Indebtedness constituting Subordinated Obligations if the proceeds of such
Refinancing Indebtedness are used, directly or indirectly, to Refinance such
Subordinated Obligations, unless such Refinancing Indebtedness will be
subordinated to the Notes at least to the same extent as such Subordinated
Obligations. No Subsidiary Guarantor will Incur any Indebtedness pursuant to
the foregoing paragraph that permits Refinancing Indebtedness in respect of
Indebtedness constituting Guarantor Subordinated Obligations if the proceeds of
such Refinancing Indebtedness are used, directly or indirectly, to Refinance
such Guarantor Subordinated Obligations of such Subsidiary Guarantor unless
such Refinancing Indebtedness will be subordinated to the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee to at least the same extent
as such Guarantor Subordinated Obligations.
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(d) For purposes of determining compliance with, and the
outstanding principal amount of any particular Indebtedness Incurred pursuant
to and in compliance with, this covenant, (i) in the event that Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
paragraph (b) of this Section, the Company, in its sole discretion, shall
classify such item of Indebtedness and only be required to include the amount
and type of such Indebtedness in one of such clauses; and (ii) the amount of
Indebtedness issued at a price that is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
(e) The Company will not permit any Unrestricted
Subsidiary to Incur any Indebtedness other than Non-Recourse Debt; provided,
however, if any such Indebtedness ceases to be Non-Recourse Debt, such event
shall be deemed to constitute an incurrence of Indebtedness by the Company or a
Restricted Subsidiary.
SECTION 1011. Limitation on Layering.
The Company shall not incur any Indebtedness that is expressly
subordinate in right of payment to any Senior Indebtedness unless such
Indebtedness is Senior Subordinated Indebtedness or is contractually
subordinated in right of payment to Senior Subordinated Indebtedness. No
Subsidiary Guarantor will incur any Indebtedness that is expressly subordinate
in right of payment to any Guarantor Senior Indebtedness of such Subsidiary
Guarantor unless such Indebtedness is Guarantor Senior Subordinated
Indebtedness of such Subsidiary Guarantor or is contractually subordinated in
right of payment to Guarantor Senior Subordinated Indebtedness of such
Subsidiary Guarantor. Unsecured Indebtedness is not deemed to be subordinate
or junior to Secured Indebtedness merely because it is unsecured, and
Indebtedness that is not guaranteed by a particular Person is not deemed to be
subordinate or junior to Indebtedness that is so guaranteed merely because it
is not so guaranteed.
SECTION 1012. Limitation on Affiliate Transactions.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, enter into or conduct any
transaction or series of transactions (including the purchase, sale, lease or
exchange of any property or the rendering of any service with any Affiliate of
the Company (an "Affiliate Transaction") on terms (i) that taken as a whole are
less favorable to the Company or such Restricted Subsidiary, as the case may
be, than those that could be obtained at the time of such transaction in arm's-
length dealings with a Person who is not such an Affiliate and (ii) that, in
the event such Affiliate Transaction involves an aggregate amount in excess of
$10.0 million, are not in writing and have not been approved by a majority of
the members of the Board of Directors having no material personal financial
interest in such Affiliate Transaction or, in the event there are no such
members, as to which the Company has not obtained a Fairness Opinion (as
hereinafter defined). In addition, any transaction involving aggregate
payments or other transfers by the Company and its Restricted Subsidiaries in
excess of $20.0 million will also require an opinion (a "Fairness Opinion")
from an independent investment banking firm or appraiser, as appropriate, of
national prominence, to the effect that the terms of such transaction are fair
to the Company or such Restricted Subsidiary, as the case may be, from a
financial point of view.
(b) The provisions of the foregoing paragraph (a) shall not
prohibit (i) any Restricted Payment permitted by Section 1009, or any Permitted
Investment, (ii) the performance of the Company's or Restricted Subsidiary's
obligations under any employment contract, collective bargaining agreement,
agreement for the provision of services, employee benefit plan, related trust
agreement or any other similar arrangement heretofore or hereafter entered into
in the ordinary course of business, (iii) payment of compensation, performance
of indemnification or contribution obligations, or any issuance, grant or award
of stock, options or other securities, to employees, officers or directors in
the ordinary course of business, (iv) any transaction between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries, (v) the Transactions
and the incurrence and payment of all fees and expenses payable in connection
therewith as described in or contemplated by the Offering Memorandum, (vi) any
other transaction arising out of agreements in existence on the Issue Date and
(vii) transactions with suppliers
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or other purchasers or sellers of goods or services, in each case in the
ordinary course of business and on terms no less favorable to the Company or
the Restricted Subsidiary, as the case may be, than those that could be
obtained at such time in arm's-length dealings with a Person which is not an
Affiliate.
SECTION 1013. Limitation on Restrictions on Distributions
from Restricted Subsidiaries.
The Company will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company, (ii)
make any loans or advances to the Company or (iii) transfer any of its property
or assets to the Company, except (A) any encumbrance or restriction pursuant to
an agreement in effect at or entered into on the date of this Indenture
(including, without limitation, the Senior Credit Facility); (B) any
encumbrance or restriction with respect to a Restricted Subsidiary (1) pursuant
to an agreement relating to any Indebtedness Incurred by a Restricted
Subsidiary prior to the date on which such Restricted Subsidiary was acquired
by the Company, or of another Person that is assumed by the Company or a
Restricted Subsidiary in connection with the acquisition of assets from, or
merger or consolidation with, such Person (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company, or such acquisition of assets,
merger or consolidation) and outstanding on the date of such acquisition,
merger or consolidation or (2) pursuant to any agreement (not relating to any
Indebtedness) in existence when a Person becomes a Subsidiary of the Company or
when such agreement is acquired by the Company or any Subsidiary thereof, that
is not created in contemplation of such Person becoming such a Subsidiary or
such acquisition (for purposes of this clause (B), if another Person is the
Successor Company, any Subsidiary or agreement thereof shall be deemed acquired
or assumed, as the case may be, by the Company when such Person becomes the
Successor Company); (C) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement (a "Refinancing Agreement")
effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise
extends, renews, refinances or replaces, an agreement referred to in clause (A)
or (B) of this covenant or this clause (C) or contained in any amendment to an
agreement referred to in clause (A) or (B) of this covenant or this clause (C)
(an "Initial Agreement") or contained in any amendment to an Initial Agreement;
provided, however, that the encumbrances and restrictions contained in any such
Refinancing Agreement or amendment are no less favorable to the Holders of the
Notes taken as a whole than encumbrances and restrictions contained in the
Initial Agreement or Agreements to which such Refinancing Agreement or
amendment relates; (D) any encumbrance or restriction (1) that restricts in a
customary manner the subletting, assignment or transfer of any property or
asset that is subject to a lease, license or similar contract, or the
assignment or transfer of any lease, license or other contract, (2) by virtue
of any transfer of, agreement to transfer, option or right with respect to, or
Lien on, any property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by this Indenture, (3) contained in mortgages, pledges or
other security agreements securing Indebtedness of a Restricted Subsidiary to
the extent such encumbrance or restrictions restrict the transfer of the
property subject to such mortgages, pledges or other security agreements or (4)
pursuant to customary provisions restricting dispositions of real property
interests set forth in any reciprocal easement agreements of the Company or any
Restricted Subsidiary; (E) any restriction with respect to a Restricted
Subsidiary (or any of its property or assets) imposed pursuant to an agreement
entered into for the direct or indirect sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary (or
the property or assets that are subject to such restriction) pending the
closing of such sale or disposition; and (F) any encumbrance or restriction on
the transfer of property or assets required by any regulatory authority having
jurisdiction over the Company or any Restricted Subsidiary or any of their
businesses.
SECTION 1014. Limitation on Sale or Issuance of Preferred
Stock of Restricted Subsidiaries.
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The Company shall not sell any shares of Preferred Stock of a
Restricted Subsidiary, and shall not permit any Restricted Subsidiary, directly
or indirectly, to issue or sell any shares of its Preferred Stock to any Person
(other than to the Company or a Restricted Subsidiary).
SECTION 1015. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or permit to exist any Lien
(other than Permitted Liens) on any of its property or assets (including
Capital Stock), whether owned on the date of this Indenture or thereafter
acquired, securing any Indebtedness that is not Senior Indebtedness (the
"Initial Lien"), unless contemporaneously therewith effective provision is made
to secure the obligations due under this Indenture and the Notes or, in respect
of Liens on any Restricted Subsidiary's property or assets, equally and ratably
with such obligation for so long as such obligation is secured by such Initial
Lien. Any such Lien thereby created in favor of the Notes will be
automatically and unconditionally released and discharged upon (i) the release
and discharge of the Initial Lien to which it relates, or (ii) any sale,
exchange or transfer to any Person not an Affiliate of the Company of the
property or assets secured by such Initial Lien, or of all of the Capital Stock
held by the Company or any Restricted Subsidiary in, or all or substantially
all the assets of, any Restricted Subsidiary creating such Lien.
SECTION 1016. Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder will have the right to require the Company to repurchase all or any part
of such Holder's Notes at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) (the
"Change of Control Offer"); provided, however, that notwithstanding the
occurrence of a Change of Control, the Company shall not be obligated to
purchase the Notes pursuant to this covenant in the event that it has exercised
its right to redeem all of the Notes pursuant to Section 1101.
(b) Within 30 days following any Change of Control (or at
the Company's option, prior to such Change of Control but after the public
announcement thereof), unless the Company has mailed a redemption notice in
connection with such Change of Control as described in Section 1105, the
Company shall mail a notice to each holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred or will occur
and that such Holder has (or upon such occurrence will have) the right
to require the Company to purchase such Holder's Notes at a purchase
price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase (subject
to the right of Holders of record on a record date to receive interest
on the relevant interest payment date);
(ii) the circumstances and relevant facts and financial
information regarding such Change of Control;
(iii) the date of purchase (which shall be no earlier than
30 days nor later than 90 days from the date such notice is mailed);
(iv) the instructions determined by the Company,
consistent with this covenant, that a Holder must follow in order to
have its Notes purchased; and
(v) that, if such offer is made prior to such Change of
Control, payment is conditioned on the occurrence of such Change of
Control.
(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
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repurchase of Notes pursuant to this covenant. To the extent that the
provisions of any securities laws or regulations conflict with provisions of
this Indenture, the Company will comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations described
in this Indenture by virtue thereof.
SECTION 1017. Limitation on Sales of Assets.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, make any Asset Disposition unless the Company or such
Restricted Subsidiary receives consideration (including by way of relief from,
or by any other Person assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal
to the fair market value of the shares and assets subject to such Asset
Disposition of such fair market value shall be determined in good faith by the
Board of Directors, whose determination shall be conclusive (including as to
the value of all non-cash consideration), (ii) at least 75% of the
consideration therefor (excluding, in the case of an Asset Disposition of
assets, any consideration by way of relief from, or by any other person
assuming responsibility for, any liabilities, contingent or otherwise, which
are not Indebtedness) received by the Company or such Restricted Subsidiary is
in the form of cash and (iii) an amount equal to 100% of the Net Available Cash
from such Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be) (A) first, to the extent the Company elects (or
is required by the terms of any Senior Indebtedness or Indebtedness (other than
Preferred Stock) of a Restricted Subsidiary), to prepay, repay or purchase
Senior Indebtedness or such Indebtedness of a Restricted Subsidiary (in each
case other than Indebtedness owed to the Company or a Restricted Subsidiary of
the Company) within 365 days after the date of such Asset Disposition; (B)
second, to the extent of the balance of Net Available Cash after application in
accordance with clause (A), to the extent the Company or such Restricted
Subsidiary elects, 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) within 365 days
from the date of such Asset Disposition or, if such reinvestment in Additional
Assets is a project authorized by the Board of Directors that will take longer
than 365 days to complete, the period of time necessary to complete such
project; (C) third, to the extent of the balance of such Net Available Cash
after application in accordance with clauses (A) and (B) (such balance, the
"Excess Proceeds"), to make an offer to purchase Notes at a price in cash equal
to 100% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the purchase date, and (to the extent required by the terms thereof)
any other Senior Subordinated Indebtedness pursuant and subject to the
conditions of the agreements governing such other Indebtedness at a purchase
price of 100% of the principal amount thereof plus accrued and unpaid interest
to the purchase date and (D) fourth, to the extent of the balance of such
Excess Proceeds after application in accordance with clauses (A), (B) and (C)
above, to fund (to the extent consistent with any other applicable provision of
this Indenture) any general corporate purpose (including the repayment of
Subordinated Obligations); provided, however, that in connection with any
prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C)
above, the Company or such Restricted Subsidiary will retire such Indebtedness
and will cause the related loan commitment (if any) to be permanently reduced
in an amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this covenant, the Company and the
Restricted Subsidiaries shall not be required to apply any Net Available Cash
in accordance with this covenant except to the extent that the aggregate Net
Available Cash from all Asset Dispositions that is not applied in accordance
with this covenant exceeds $10.0 million.
To the extent that the aggregate principal amount of the Notes
and other Senior Subordinated Indebtedness tendered pursuant to an offer to
purchase made in accordance with clause (C) above exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and Senior Subordinated
Indebtedness to be purchased on a pro rata basis, based on the aggregate
principal amount thereof surrendered in such offer to purchase. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset to zero.
For the purposes of this covenant, the following are deemed to
be cash: (v) Cash Equivalents, (w) the assumption of Indebtedness of the
Company (other than Disqualified Stock of the
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Company) or any Restricted Subsidiary and the release of the Company or such
Restricted Subsidiary from all liability on such Indebtedness in connection
with such Asset Disposition, (x) Indebtedness of any Restricted Subsidiary that
is no longer a Restricted Subsidiary as a result of such Asset Disposition, to
the extent that the Company and each other Restricted Subsidiary is released
from any Guarantee (or is the beneficiary of any indemnity with respect thereto
which is secured by any letter of credit or cash equivalents) of such
Indebtedness in connection with such Asset Disposition, (y) securities received
by the Company or any Restricted Subsidiary from the transferee that are
promptly converted by the Company or such Restricted Subsidiary into cash, and
(z) consideration consisting of Indebtedness of the Company or any Restricted
Subsidiary.
(b) 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 covenant. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this covenant, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this covenant by virtue thereof.
SECTION 1018. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Restricted Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether it has kept, observed, performed
and fulfilled, and has caused each of its Restricted Subsidiaries to keep,
observe, perform and fulfill 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 during such preceding fiscal year has kept,
observed, performed and fulfilled, and has caused each of its Restricted
Subsidiaries to keep, observe, perform and fulfill, each and every such
covenant contained in this Indenture and no Default or Event of Default
occurred during such year and at the date of such certificate there is no
Default or Event of Default which has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe its status, with particularity and that, to the best of his or her
knowledge, no event has occurred and remains by reason of which payments on the
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 each is
taking or proposes to take with respect thereto. The Officers' Certificate
shall also notify the Trustee should the Company elect to change the manner in
which it fixes its fiscal year end. For purposes of this Section 1018(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under
this Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Significant Subsidiary gives any notice or
takes any other action with respect to a claimed default (other than with
respect to Indebtedness in the principal amount of less than $20 million), the
Company shall deliver to the Trustee by registered or certified mail or
facsimile transmission an Officers' Certificate specifying such event, notice
or other action within five Business Days of its occurrence.
SECTION 1019. Reporting Requirements.
As long as any of the Notes is outstanding, the Company will
file with the Commission (unless the Commission will not accept such a filing)
the annual reports, quarterly reports and other documents required to be filed
with the Commission pursuant to Sections 13 and 15 of the Exchange Act, whether
or not the Company is then obligated to file reports pursuant to such sections.
The Company will be required to file with the Trustee and provide to each
holder of Notes within 15 days after filing with the Commission (or if any such
filing is not required under the Exchange Act, 15 days after the Company would
have been required to make such filing) copies of such reports and documents.
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SECTION 1020. Future Subsidiary Guarantors.
After the Issue Date, the Company will cause each Restricted
Subsidiary created or acquired by the Company to execute and deliver to the
Trustee a Subsidiary Guarantee pursuant to which such Restricted Subsidiary
will unconditionally Guarantee, on a joint and several basis, the full and
prompt payment of the principal of, premium, if any, and interest on the Notes
on a senior unsecured basis. Such Guarantee shall be in the form of a
supplemental indenture to this Indenture in accordance with Section 901.
SECTION 1021. Designation of Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if such designation
would not cause a default. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated will be deemed to
be Restricted Payments at the time of such designation and will reduce the
amount available for Restricted Payments under clause (C) of paragraph (a) of
Section 1009. All such outstanding Investments will be deemed to constitute
Investments in an amount equal to the greater of the fair market value or the
book value of such Subsidiary at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
SECTION 1022. Limitation on Sale/Leaseback Transactions.
The Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale/Leaseback Transaction with respect to any
property unless: (i) the Company or such Restricted Subsidiary would be
entitled to Incur Indebtedness in an amount equal to the Attributable Debt with
respect to such Sale/Leaseback Transaction pursuant to Section 1010; (ii) the
net proceeds received by the Company or any Restricted Subsidiary in connection
with such Sale/Leaseback Transaction are at least equal to the fair value (as
determined by the Board of Directors) of such property; and (iii) the transfer
of such property is permitted by, and the Company or such Restricted Subsidiary
applies the proceeds of such transaction in compliance with, the covenant
described under Section 1017.
ARTICLE ELEVEN. REDEMPTION OF NOTES
1100.
SECTION 1101. Optional Redemption.
The Notes will be redeemable at the Company's option, in whole
or in part, at any time and from time to time on and after August 15, 2003 and
prior to maturity, upon not less than 30 nor more than 90 days' prior notice
mailed by first-class mail to each Holder's registered address, at the
following redemption prices (expressed as a percentage of principal amount),
plus accrued 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:
REDEMPTION
PERIOD PRICE
------ ----------
2003 . . . . . . . . . . . . 100.000%
2004 . . . . . . . . . . . . 103.667%
2005 . . . . . . . . . . . . 101.833%
2006 and thereafter. . . . . 100.000%
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In addition, at any time and from time to time prior to August
15, 2001, the Company may redeem in the aggregate up to 33.33% of the original
aggregate principal amount of the Notes with the proceeds of one or more Equity
Offerings by the Company at a redemption price (expressed as a percentage of
principal amount thereof) of 111% plus accrued 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 66.67% of the original aggregate principal
amount of the Notes must remain outstanding after each such redemption and that
any such redemption occurs within 90 days following the closing of any such
Equity Offering.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 90 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date, the specific provision of the Indenture pursuant to which such
redemption is being made, the Redemption Price and the principal amount of
Notes to be redeemed and shall deliver to the Trustee such documentation and
records as shall enable the Trustee to select the Notes to be redeemed pursuant
to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed at any time
pursuant to an optional redemption, the particular Notes to be redeemed shall
be selected at least 30 but not more than 90 days prior to the Redemption Date
by the Trustee, from the Outstanding Notes not previously called for
redemption, in compliance with the requirements of the principal securities
exchange, if any, on which such Notes are listed, or, if such Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate (and in such manner as complies with applicable
legal requirements) and which may provide for the selection for redemption of
portions of the principal of the Notes; provided, however, that no Notes of a
principal amount of $1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to the
portion of the principal amount of such Note which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for
in Section 106 not less than 30 nor more than 90 days prior to the Redemption
Date, to each Holder of Notes to be redeemed. The Trustee shall give notice of
redemption in the Company's name and at the Company's expense; provided,
however, that the Company shall deliver to the Trustee, at least 45 days 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 the following items.
All notices of redemption shall state:
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(i) the Redemption Date,
(ii) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in Section 1107,
if any,
(iii) if less than all Outstanding Notes are to be
redeemed, the identification of the particular Notes (or portion
thereof) to be redeemed, as well as the aggregate principal amount of
Notes to be redeemed and the aggregate principal amount of Notes to be
Outstanding after such partial redemption,
(iv) in case any Note is to be redeemed in part only, the
notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the holder will receive,
without charge, a new Note or Notes of authorized denominations for
the principal amount thereof remaining unredeemed,
(v) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1107) will become due and payable upon each such Note, or
the portion thereof, to be redeemed, and, unless the Company defaults
in making the redemption payment, that interest on Notes called for
redemption (or the portion thereof) will cease to accrue on and after
said date,
(vi) the place or places where such Notes are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(vii) the name and address of the Paying Agent,
(viii) that Notes called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price,
(ix) the CUSIP number, and that no representation is made
as to the accuracy or correctness of the CUSIP number, if any, listed
in such notice or printed on the Notes, and
(x) the paragraph of the Notes or Section of the
Indenture pursuant to which the Notes are to be redeemed.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and accrued interest
on, all the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Notes
shall cease to bear interest. Upon surrender of any such Note for redemption
in accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Regular Record Date or Special Record Date, as the
case may be, according to their terms and the provisions of Section 311.
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If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part (pursuant to the
provisions of this Article) shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to Section 1002 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note at the expense of the Company, a new Note or Notes,
of any authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered, provided, that each such new Note will be
in a principal amount of $1,000 or integral multiple thereof.
ARTICLE TWELVE. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
1200.
SECTION 1201. Company's Option to Effect Legal Defeasance or
Covenant Defeasance.
The Company may, at its option, at any time, with respect to
the Notes, elect to have either Section 1202 or Section 1203 be applied to all
Outstanding Notes upon compliance with the conditions set forth in this Article
Twelve.
SECTION 1202. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and any Subsidiary Guarantor shall
be deemed to have been discharged from its obligations with respect to all
Outstanding Notes on the date the conditions set forth in Section 1204 are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company and any such Subsidiary Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
Outstanding Notes, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1205 and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of Outstanding Notes to receive, solely from the trust fund described
in Section 1204 and as more fully set forth in such Section, payments in
respect of the principal of (and premium, if any, on) and interest on such
Notes when such payments are due, (ii) the Company's obligations with respect
to such Notes under Sections 304, 305, 310, 1002 and 1003, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, and the
Company's obligations in connection therewith and (iv) this Article Twelve.
If the Company exercises its Legal Defeasance Option, payment
of the Notes may not be accelerated because of an Event of Default.
Subject to compliance with this Article Twelve, the Company
may exercise its option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203 with respect to the Notes.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, the Company may terminate (i) its obligations
under any covenant contained in
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Sections 1004 through 1022, (ii) the operation of Section 501(vi), Section
501(vii) (with respect only to Significant Subsidiaries), Section 501(viii)
(with respect only to Significant Subsidiaries) and Section 501(ix) and (iii)
the limitations contained in Sections 801(a)(iii) and (iv) with respect to the
Outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not to be "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 will not be outstanding for accounting purposes). If the Company
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified under Section 501(iv),
(vi), (vii) (with respect only to Significant Subsidiaries), (viii) (with
respect only to Significant Subsidiaries) and (ix) or because of the failure of
the Company to comply with Sections 801(a)(iii) and (iv). For this purpose,
such 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 501(iv), but, except
as specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 1204. Conditions to Legal Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Notes:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of this Indenture who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds,
money or U.S. Government Obligations, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to pay the
principal of, premium, if any, and interest due on the Outstanding
Notes on the Stated Maturity or on the applicable Redemption Date as
the case may be, of such principal, premium, if any, or interest on
the Outstanding Notes;
(ii) in the case of Legal Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee (which opinion may be
subject to customary assumptions and exclusions) confirming that (A)
the Company has received from, or there has been published by, the
United States Internal Revenue Service a ruling or (B) since the Issue
Date, there has been a change in the applicable U.S. Federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel in the United States (which opinion may be subject
to customary assumptions and exclusions) shall confirm that, the
Holders of the Outstanding Notes will not recognize income, gain or
loss for U.S. Federal income tax purposes as a result of such Legal
Defeasance and will be subject to U.S. Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that, subject
to customary assumptions and exclusions, the Holders of the
Outstanding Notes will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such Covenant Defeasance
and will be subject to such 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;
(iv) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or insofar as Events of
Default from bankruptcy or insolvency events are concerned, at any
time in the period ending on the 123rd day after the date of deposit;
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(v) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under,
any material agreement or instrument (other than this Indenture) to
which the Company or any Subsidiary Guarantor is a party or by which
the Company or any Subsidiary Guarantor is bound;
(vi) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, as of the date of such opinion
and subject to customary assumptions and exclusions following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally under any applicable U.S.
Federal or state law, and that the Trustee has a perfected security
interest in such trust funds for the ratable benefit of the Holders;
(vii) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or any Subsidiary Guarantor or
others;
(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in the United States
(which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance, as the
case may be, have been complied with; and
(ix) the Company shall have delivered to the Trustee the
opinion of a nationally recognized firm of independent public
accountants stating the matters set forth in paragraph (i) above.
SECTION 1205. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 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 its own 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
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust are not subject to Article Thirteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company request any money or U.S. Government Obligations held by it
as provided in Section 1204 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent legal defeasance
or covenant defeasance, as applicable, in accordance with this Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any
money or Government Obligations in accordance with Section 1205 by reason of
any legal proceeding or by any 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
shall be revived
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and reinstated as though no deposit had occurred pursuant to Section 1202 or
1203, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1205; provided,
however, that if the Company makes any payment of principal of (or premium, if
any) or interest on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money and U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE THIRTEEN. SUBORDINATION OF NOTES
1300.
SECTION 1301. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Note,
by his acceptance thereof, likewise covenants and agrees, for the benefit of
the holders, from time to time, of Senior Indebtedness that, to the extent and
in the manner hereinafter set forth in this Article, the Indebtedness
represented by the Notes and the payment of the principal of (and premium, if
any) and interest on each and all of the Notes and all other Subordinated
Obligations are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full in cash or
Cash Equivalents of all Senior Indebtedness, whether outstanding on the Issue
Date or thereafter incurred, created, assumed or, except as set forth in
Section 1014, guaranteed. The Notes will in all respects rank pari passu with
all other Senior Subordinated Indebtedness of the Company.
SECTION 1302. Payment over of Proceeds upon Dissolution, Etc.
Upon any payment or distribution of the assets of the Company
upon a total or partial liquidation or dissolution or reorganization or
bankruptcy of or similar proceeding relating to the Company or its property:
(i) the holders of Senior Indebtedness will be entitled
to receive payment in full in cash or Cash Equivalents of the Senior
Indebtedness (including interest after, or which would accrue but for,
the commencement of any proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not a claim for such
interest would be allowed in a proceeding) before the holders of the
Notes are entitled to receive any payment, and
(ii) until the Senior Indebtedness is paid in full in cash
or Cash Equivalents, any payment or distribution to which holders of
the Notes would be entitled but for the subordination provisions of
this Indenture will be made to holders of the Senior Indebtedness as
their interests may appear (except that holders of Notes may receive
securities that are subordinated at least to the same extent as the
Notes to the Senior Indebtedness and any securities issued in exchange
for any Senior Indebtedness).
SECTION 1303. Suspension of Payment When Senior Indebtedness
in Default.
(a) The Company may not pay principal of, premium, if
any, or interest on, the Notes or make any deposit pursuant to the provisions
described under "Defeasance" and may not otherwise purchase or retire any Notes
(collectively, "pay the Notes") if:
(i) any Senior Indebtedness is not paid when due in cash
or Cash Equivalents; or
(ii) any other default on Senior Indebtedness occurs and
the maturity of such Senior Indebtedness is accelerated in accordance
with its terms unless, in either case, the default has been cured or
waived and any such acceleration has been rescinded or such Senior
Indebtedness has been paid in full in cash or Cash Equivalents;
provided, however, the Company may pay the Notes without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representative of the Senior
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Indebtedness with respect to which either of the events set forth in clause (i)
or (ii) above has occurred and is continuing.
(b) During the continuance of any default (other than a
default described in clause (a) (i) or (a) (ii) above) with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Company may not pay the Notes for a period (a "Payment Blockage
Period") commencing upon the receipt by the Trustee (with a copy to the
Company) of written notice (a "Blockage Notice") of such default from the
Representative of the holders of such Designated Senior Indebtedness specifying
an election to effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by written notice
to the Trustee and the Company from the Person or Persons who gave such
Blockage Notice, (ii) because the default giving rise to such Blockage Notice
is no longer continuing or (iii) because such Designated Senior Indebtedness
has been repaid in full (or such payment has been duly provided for in a manner
acceptable to the holders of such Designated Senior Indebtedness).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to Section 1303(a)), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume
payments on the Notes after the end of such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness during such period. However, if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior
Indebtedness other than Bank Indebtedness, a Representative of Bank
Indebtedness may give one additional Blockage Notice within such period. In no
event, however, may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 360
consecutive day period.
SECTION 1304. Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of the
Designated Senior Indebtedness or the Representative of such holders of the
acceleration. The Company may not pay the Notes until five Business Days after
such holders or the Representative of the Designated Senior Indebtedness
receive notice of such acceleration and, thereafter, may pay the Notes only if
the subordination provisions of this Indenture otherwise permit payment at that
time.
SECTION 1305. When Distribution Must Be Paid Over.
If a distribution is made to Holders of the Notes that, due to
the provisions of this Article Thirteen, should not have been made to them,
such Holders are required to hold it in trust for the Holders of Senior
Indebtedness and pay it over to them as their interests may appear.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article Thirteen, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders or the Company or any other Person money
or assets to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article Thirteen, except if such payment is made as a result of
the willful misconduct or gross negligence of the Trustee.
SECTION 1306. Notice by Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes that violate
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this Article, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Indebtedness as provided in this
Article Thirteen.
SECTION 1307. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Notes shall prevent the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1302 or under the
conditions described in Section 1303, from making payments at any time of
principal of (and premium, if any, on) or interest on the Notes.
SECTION 1308. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness in
cash or Cash Equivalents, the Holders shall be subrogated (equally and ratably
with the holders of all pari passu Indebtedness of the Company) to the rights
of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the Subordinated Obligations shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders of
the Notes or the Trustee would be entitled except for the provisions of this
Article, and no payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Notes or on their behalf or by
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness; it
being understood that the provisions of this Article are intended solely for
the purpose of determining the relative rights of the Holders of the Notes, on
the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 1309. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Notes is intended to or
shall (a) impair, as between the Company and the Holders, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders the
principal of (and premium, if any) and interest on the Notes as and when the
same shall become due and payable in accordance with their terms; (b) affect
the relative rights against the Company of the Holders and creditors of the
Company other than their rights in relation to holders of Senior Indebtedness;
or (c) prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness. If
the Company fails because of this Article to pay principal (or premium, if any)
or interest on a Note on the due date, the failure is still a Default or Event
of Default.
SECTION 1310. Trustee to Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 504 hereof
at least 30 days before the expiration of the time to file such claim, the
agent bank under the Senior Credit Facility (if such facility is still
outstanding) is hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
SECTION 1311. Subordination May Not Be Impaired by Company.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or
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failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Company with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
SECTION 1312. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article Thirteen, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other acts pertinent
thereto or to this Article Thirteen.
SECTION 1313. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Notes. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Notes, unless and until the Trustee shall have received written notice thereof
from the Company, agent bank under the Senior Credit Facility or a holder of
Senior Indebtedness or from any trustee, fiduciary or agent therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to TIA
Sections 315(a) through 315(d), shall be entitled in all respects to assume
that no such facts exist; provided, however, that, if the Trustee shall not
have received the notice provided for in this Section at least three Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest on any Note), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to
the contrary which may be received by it within three Business Days prior to
such date.
(b) Subject to TIA Sections 315(a) through 315(d), the
Trustee shall be entitled to rely on the delivery to it of a written notice by
a Person representing himself to be a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1314. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to TIA Sections 315(a)
through 315(d), and the Holders of the Notes shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee,
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custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Notes, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article; provided that such court, trustee, receiver, custodian,
assignee, agent or other Person has been apprised of, or the order, decree or
certificate makes reference to, the provisions of this Article.
SECTION 1315. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
SECTION 1316. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1315 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1317. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity
of the Notes pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law, except as provided in Article Five.
SECTION 1318. Modification of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this
Article Thirteen or of the Notes relating to the subordination thereof.
SECTION 1319. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of U.S. Government Obligations held in trust
under Article Twelve hereof by the Trustee (or other qualifying trustee) and
which were deposited in accordance with the terms of Article Twelve hereof and
not in violation of Section 1303 hereof for the payment of principal of (and
premium, if any) and interest on the Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Thirteen, and none of the Holders shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness or
any other creditor of the Company.
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This Indenture may be signed in any number of counterparts
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
ARTICLE FOURTEEN. SUBSIDIARY GUARANTEES
1400.
SECTION 1401. Subsidiary Guarantees.
(a) Each Subsidiary Guarantor hereby unconditionally and
irrevocably guarantees, jointly and severally, to each Holder and to the
Trustee and its successors and assigns on an unsecured senior subordinated
basis (i) the full and punctual payment of principal of, premium, if any, and
interest on the Notes when due, whether at maturity, by acceleration, by
redemption, by required repurchase or otherwise, and all other monetary
obligations of the Company and the Subsidiary Guarantors under this Indenture
and the Notes and (ii) the full and punctual performance within applicable
grace periods of all other obligations of the Company and the Subsidiary
Guarantors under this Indenture and the Notes (all the foregoing being
hereinafter collectively called the "Guaranteed Obligations"). Each Subsidiary
Guarantor agrees that the Guaranteed Obligations may be extended or renewed, in
whole or in part, without further notice or further assent from such Subsidiary
Guarantor and that such Subsidiary Guarantor will remain bound under this
Article XIV notwithstanding any extension or renewal of any Guaranteed
Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand
of, payment from and protest to the Company of any of the Guaranteed
Obligations and also waives notice of protest for nonpayment. Each Subsidiary
Guarantor waives notice of any default under the Notes or the Guaranteed
Obligations. The Guaranteed Obligations of each Subsidiary Guarantor hereunder
shall not be affected by (a) the failure of any Holder or the Trustee to assert
any claim or demand or to enforce any right or remedy against the Company or
any other Person under this Indenture, the Notes or any other agent or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (d) the release of any security
held by any Holder or the Trustee for the Guaranteed Obligations or any of
them; (e) the failure of any Holder or the Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; (f) subject
to Section 1405, any change in the ownership of such Subsidiary Guarantor; or
(g) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein constitutes a guarantee of payment, performance and
compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security
held for payment of the Guaranteed Obligations.
(d) Except as expressly set forth in Sections 1402, 1404,
1202 and 1203, the obligations of each Subsidiary Guarantor hereunder shall not
be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever or by reason of the invalidity, illegality
or unenforceability of the Guaranteed Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each Subsidiary
Guarantor herein shall not be discharged or impaired or otherwise affected by
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any remedy under this Indenture, the Notes or any other agreement, by
any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations, or by any other
act or thing or omission or delay to do any other act or thing which may or
might in any manner or to any extent vary the risk of such guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of
law or equity.
(e) Each Subsidiary Guarantor further agrees that its
Subsidiary Guarantee herein shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof,
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of principal of or interest on any Guaranteed Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of
any other right which any Holder or the Trustee has at law or in equity against
any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to
pay the principal of or interest on any Guaranteed Obligation when and as the
same shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guaranteed Obligation, each
Subsidiary Guarantor hereby promises to and will, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of
such Guaranteed Obligations, (ii) accrued and unpaid interest on such
Guaranteed Obligations (but only to the extent not prohibited by law) and (iii)
all other monetary Guaranteed Obligations of the Company or the Subsidiary
Guarantors to the Holders and the Trustee.
(g) Each Subsidiary Guarantor agrees that, as between it, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as
provided in Article VIII for the purposes of such Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such Guaranteed
Obligations as provided in Article V, such Guaranteed Obligations (whether or
not due and payable) shall forthwith become due and payable by such Subsidiary
Guarantor for the purposes of this Section 1401.
(h) Each Subsidiary Guarantor also agrees to pay any and all
costs and expenses (including attorneys' fees and disbursements) incurred by
the Trustee or any Holder in enforcing or obtaining advice of counsel in
respect of any rights with respect to or collecting such Subsidiary Guarantor
under this Subsidiary Guarantee under this Section 1401.
SECTION 1402. Limitation on Liability.
Each Subsidiary Guarantor agrees that the Guaranteed
Obligations may at any time and from time to time exceed the amount of the
liability of such Subsidiary Guarantor hereunder without impairing this
Subsidiary Guarantee or affecting the rights and remedies of the Agent or any
Lender hereunder; provided, however, that any term or provision of this
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor shall
not exceed the maximum amount that can be guaranteed hereby without rendering
this Indenture, as it relates to such Subsidiary Guarantor, void or voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
SECTION 1403. No Waiver.
Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this
Article XIV shall operate as a waiver thereof, or shall a single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders
herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article XIV at
law, in equity, by statute or otherwise.
SECTION 1404. Modification.
No modification, amendment or waiver of any provision of this
Article XIV, nor the consent to any departure by any Subsidiary Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Trustee, and then such waiver or consent shall be effective
only in the specific instance and for the purposes for which given. No notice
to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same,
similar or other circumstance.
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SECTION 1405. Release of Subsidiary Guarantor.
Upon the occurrence of a sale or other disposition (including
by way of consolidation or merger) of a Subsidiary Guarantor or the sale or
disposition of all or substantially all the assets of such Subsidiary Guarantor
(in each case other than to the Company or an Affiliate of the Company)
pursuant to and in accordance with the terms and provisions of this Indenture,
such Subsidiary Guarantor shall be deemed released from all obligations under
this Article XIV without any further action required on the part of the Trustee
or any Holder; provided, however, that any such release will occur only to the
extent that all obligations of such Subsidiary Guarantor under the Senior
Credit Facility and all of its Guarantees of, and under all of its pledges of
assets or other security interests which secure, any other Indebtedness of the
Company will also terminate concurrently with such release. At the request of
the Company and upon receipt of an Officers' Certificate, the Trustee shall
execute and deliver an appropriate instrument evidencing such release.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
RENTERS CHOICE, INC.
By
---------------------------
Name:
Title:
COLORTYME, INC., as a Subsidiary Guarantor
By
---------------------------
Name:
Title:
RENT-A-CENTER, INC., as a Subsidiary Guarantor
By
---------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
By
---------------------------
Name:
Title:
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EXECUTION COPY
===============================================================================
RENTERS CHOICE, INC.,
as Issuer
COLORTYME, INC.
and
RENT-A-CENTER, INC.,
as Subsidiary Guarantors
and
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
____________________
INDENTURE
Dated as of August 18, 1998
_____________________
11% Senior Subordinated Notes due 2008
===============================================================================
105
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF NOVEMBER 4, 1997*/
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) . . . . . . . . . . . . . . 608
(a)(2) . . . . . . . . . . . . . . 608
(b) . . . . . . . . . . . . . . 609
Section 312(a) . . . . . . . . . . . . . . 701
(c) . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . 703
Section 314(a)(4) . . . . . . . . . . . . . . 1018(a)
(c)(1) . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . 601(c), 603
316(a)(last sentence) . . . . . . . . . . . . . .
101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . 104(d)
Section 317(a)(1) . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . 111
__________________________________
*/Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
106
TABLE OF CONTENTS,/
Page
----
ARTICLE ONE. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 18
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 18
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . 19
SECTION 105. Notices, Etc., to Trustee, the Company and any
Guarantor . . . . . . . . . . . . . . . . . . . . . 20
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . 20
SECTION 107. Effect of Headings and Table of Contents . . . . . . 20
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . 20
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . 21
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . 21
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . 21
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . 21
SECTION 113. No Personal Liability of Directors, Officers,
Employees, Stockholders or Incorporators . . . . . . 21
SECTION 114. Counterparts . . . . . . . . . . . . . . . . . . . . 22
SECTION 115. Communications by Holders with Other Holders . . . . 22
ARTICLE TWO. NOTE FORMS . . . . . . . . . . . . 22
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . 22
SECTION 202. Restrictive Legends . . . . . . . . . . . . . . . . 23
SECTION 203. Form of Initial Note . . . . . . . . . . . . . . . . 25
SECTION 204. Form of Exchange Note . . . . . . . . . . . . . . . 40
SECTION 205. Form of Trustee's Certificate of Authentication . . 52
ARTICLE THREE. THE NOTES . . . . . . . . . . . 52
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . . . 52
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . 53
SECTION 303. Execution, Authentication, Delivery and Dating . . . 53
SECTION 304. Temporary Notes . . . . . . . . . . . . . . . . . . 54
SECTION 305. Registration, Registration of Transfer and Exchange 54
SECTION 306. Book-Entry Provisions for Global Notes . . . . . . . 55
SECTION 307. Special Transfer Provisions . . . . . . . . . . . . 56
SECTION 308. Form of Certificate to Be Delivered in Connection
with Transfers to Institutional Accredited
Investors . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 309. Form of Certificate to Be Delivered in Connection
with Transfers Pursuant to Regulation S . . . . . . . 60
SECTION 310. Mutilated, Destroyed, Lost and Stolen Notes . . . . 61
SECTION 311. Payment of Interest; Interest Rights Preserved . . . 61
SECTION 312. Persons Deemed Owners . . . . . . . . . . . . . . . 62
SECTION 313. Cancellation . . . . . . . . . . . . . . . . . . . . 62
SECTION 314. Computation of Interest . . . . . . . . . . . . . . 62
SECTION 315. CUSIP Numbers . . . . . . . . . . . . . . . . . . . 63
ARTICLE FOUR. SATISFACTION AND DISCHARGE . . . . . . . 63
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . 63
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . 64
----------------------------------
,/ Note: This table of contents shall not, for any purpose, be deemed
to be a part of the Indenture.
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ARTICLE FIVE. REMEDIES . . . . . . . . . . . 64
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . 64
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . 66
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 67
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . 67
SECTION 505. Trustee May Enforce Claims Without Possession of
Notes . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 506. Application of Money Collected . . . . . . . . . . . 68
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . 68
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . 69
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . 69
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . 69
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . 69
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . 69
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . 70
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . 70
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . 70
ARTICLE SIX. THE TRUSTEE . . . . . . . . . . . 71
SECTION 601. Certain Duties and Responsibilities . . . . . . . . 71
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . 72
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . 72
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Notes . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 605. May Hold Notes . . . . . . . . . . . . . . . . . . . 73
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . 73
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . 74
SECTION 608. Corporate Trustee Required; Eligibility . . . . . . 74
SECTION 609. Resignation and Removal; Appointment of Successor . . 75
SECTION 610. Acceptance of Appointment by Successor . . . . . . . 76
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 612. Trustee's Application for Instructions from the
Company . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE SEVEN. HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY . . 77
SECTION 701. Company to Furnish Trustee Names and Addresses . . . 77
SECTION 702. Disclosure of Names and Addresses of Holders . . . . 77
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . 77
SECTION 704. Notice of Defaults . . . . . . . . . . . . . . . . . 77
ARTICLE EIGHT. MERGER AND CONSOLIDATION . . . . . . . . 77
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . 78
ARTICLE NINE. SUPPLEMENTS AND AMENDMENTS TO INDENTURE . . . . 79
SECTION 901. Supplemental Indentures Without Consent of Holders. . 79
SECTION 902. Supplemental Indentures with Consent of Holders . . 79
SECTION 903. Execution of Supplemental Indentures . . . . . . . . 80
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . 80
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . 80
SECTION 906. Reference in Notes to Supplemental Indentures . . . 81
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . 81
SECTION 908. Effect on Senior Indebtedness . . . . . . . . . . . 81
ARTICLE TEN. COVENANTS . . . . . . . . . . . . 81
SECTION 1001. Payment of Principal, Premium, if any, and
Interest . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . 81
SECTION 1003. Money for Note Payments to Be Held in Trust. . . . . 82
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SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . 83
SECTION 1005. Payment of Taxes and Other Claims . . . . . . . . . 83
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . 83
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1008. Compliance with Laws. . . . . . . . . . . . . . . . 83
SECTION 1009. Limitation on Restricted Payments . . . . . . . . . 84
SECTION 1010. Limitation on Indebtedness . . . . . . . . . . . . 85
SECTION 1011. Limitation on Layering . . . . . . . . . . . . . . 86
SECTION 1012. Limitation on Affiliate Transactions . . . . . . . 87
SECTION 1013. Limitation on Restrictions on Distributions from
Restricted Subsidiaries . . . . . . . . . . . . . . 87
SECTION 1014. Limitation on Sale or Issuance of Preferred Stock
of Restricted Subsidiaries . . . . . . . . . . . . 88
SECTION 1015. Limitation on Liens . . . . . . . . . . . . . . . . 88
SECTION 1016. Change of Control . . . . . . . . . . . . . . . . . 88
SECTION 1017. Limitation on Sales of Assets . . . . . . . . . . . 89
SECTION 1018. Statement by Officers as to Default . . . . . . . . 90
SECTION 1019. Reporting Requirements . . . . . . . . . . . . . . 91
SECTION 1020. Future Subsidiary Guarantors . . . . . . . . . . . 91
SECTION 1021. Designation of Unrestricted Subsidiaries . . . . . 91
SECTION 1022. Limitation on Sale/Leaseback Transactions . . . . . 91
ARTICLE ELEVEN. REDEMPTION OF NOTES . . . . . . . . 92
SECTION 1101. Optional Redemption . . . . . . . . . . . . . . . . 92
SECTION 1102. Applicability of Article . . . . . . . . . . . . . 92
SECTION 1103. Election to Redeem; Notice to Trustee . . . . . . . 92
SECTION 1104. Selection by Trustee of Notes to Be Redeemed . . . 93
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . 93
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . . 94
SECTION 1107. Notes Payable on Redemption Date . . . . . . . . . 94
SECTION 1108. Notes Redeemed in Part . . . . . . . . . . . . . . 94
ARTICLE TWELVE. LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . 95
SECTION 1201. Company's Option to Effect Legal Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . 95
SECTION 1202. Legal Defeasance and Discharge . . . . . . . . . . 95
SECTION 1203. Covenant Defeasance . . . . . . . . . . . . . . . . 95
SECTION 1204. Conditions to Legal Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . 97
SECTION 1205. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . 97
SECTION 1206. Reinstatement . . . . . . . . . . . . . . . . . . . 97
ARTICLE THIRTEEN. SUBORDINATION OF NOTES . . . . . . . 98
SECTION 1301. Notes Subordinate to Senior Indebtedness . . . . . 98
SECTION 1302. Payment over of Proceeds upon Dissolution, Etc. . . 98
SECTION 1303. Suspension of Payment When Senior Indebtedness in
Default . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 1304. Acceleration of Notes . . . . . . . . . . . . . . . 99
SECTION 1305. When Distribution Must Be Paid Over . . . . . . . . 99
SECTION 1306. Notice by Company . . . . . . . . . . . . . . . . . 99
SECTION 1307. Payment Permitted If No Default . . . . . . . . . . 100
SECTION 1308. Subrogation to Rights of Holders of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . 100
SECTION 1309. Provisions Solely to Define Relative Rights . . . . 100
SECTION 1310. Trustee to Effectuate Subordination . . . . . . . . 100
SECTION 1311. Subordination May Not Be Impaired by Company . . . 100
SECTION 1312. Distribution or Notice to Representative . . . . . 101
SECTION 1313. Notice to Trustee . . . . . . . . . . . . . . . . . 101
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SECTION 1314. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . 101
SECTION 1315. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights . . 102
SECTION 1316. Article Applicable to Paying Agents . . . . . . . . 102
SECTION 1317. No Suspension of Remedies . . . . . . . . . . . . . 102
SECTION 1318. Modification of Terms of Senior Indebtedness . . . 102
SECTION 1319. Trust Moneys Not Subordinated . . . . . . . . . . . 102
ARTICLE FOURTEEN. SUBSIDIARY GUARANTEES . . . . . . . 103
SECTION 1401. Subsidiary Guarantees . . . . . . . . . . . . . . . 103
SECTION 1402. Limitation on Liability . . . . . . . . . . . . . . 104
SECTION 1403. No Waiver . . . . . . . . . . . . . . . . . . . . . 104
SECTION 1404. Modification . . . . . . . . . . . . . . . . . . . 104
SECTION 1405. Release of Subsidiary Guarantor . . . . . . . . . . 105
iv
