false
0000840489
0000840489
2024-02-21
2024-02-21
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
(Date of Report - Date of Earliest Event Reported):
February 21, 2024
FIRSTCASH
HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
001-10960 |
87-3920732 |
(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
1600 West 7th Street, Fort Worth, Texas 76102
(Address of principal executive offices, including zip code)
(817) 335-1100
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed since
last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock, par value $.01 per share |
FCFS |
The Nasdaq Stock Market |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into
a Material Definitive Agreement.
On
February 21, 2024, FirstCash Holdings, Inc. (the “Company”) closed its previously announced private offering
of $500,000,000 of 6.875% senior notes due 2032 (the “Notes”) issued by the Company’s wholly-owned subsidiary,
FirstCash, Inc. (the “Issuer”). The Notes are unsecured senior obligations of the Issuer and are guaranteed by the
Company and its domestic subsidiaries that guarantee its revolving unsecured credit facility and existing senior unsecured notes.
The Notes were sold in a private placement in reliance on Rule 144A and Regulation S under the Securities Act of 1933, as
amended, pursuant to a purchase agreement among the Issuer, the Company and the other guarantors listed therein and Jefferies LLC,
as representative of the initial purchasers.
The Notes were issued
pursuant to an indenture (the “Indenture”), dated as of February 21, 2024, by and among the Issuer, the Company and the
other guarantors listed therein and BOKF, NA, as trustee. The Indenture provides that interest on the Notes will accrue from February 21,
2024 and is payable semi-annually in arrears on March 1 and September 1 of each year, beginning on September 1, 2024, and
that the Notes mature on March 1, 2032.
The Issuer may redeem
some or all of the Notes at any time on or after March 1, 2027, at the redemption prices set forth in the Indenture, plus accrued
and unpaid interest up to, but not including, the redemption date. Prior to March 1, 2027, the Issuer may redeem some or all of the
Notes at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, plus the “make-whole”
premium set forth in the Indenture. The Issuer may redeem up to 40% of the Notes on or prior to March 1, 2027 with the proceeds of
certain equity offerings at the redemption prices set forth in the Indenture. If the Company or any of its restricted subsidiaries sells
certain assets or if the Company consummates certain change in control transactions, the Issuer will be required to make an offer to repurchase
the Notes.
The Indenture contains
certain covenants that, among other things, limit the Company’s ability and the ability of its restricted subsidiaries to incur
additional indebtedness, make certain dividends, repurchase Company stock or make other distributions, make certain investments, create
liens, transfer or sell assets, merge or consolidate, and enter into transactions with the Company’s affiliates. Such covenants
are subject to a number of important exceptions and qualifications set forth in the Indenture. The Indenture also contains certain customary
events of default, including failure to make payments in respect of the principal amount of the Notes, failure to make payments of interest
on the Notes when due and payable, failure to comply with certain covenants and agreements and certain events of bankruptcy or insolvency.
The preceding description
of the Indenture and the Notes are summaries and are qualified in their entirety by the Indenture and the form of Notes, filed as Exhibit 4.1
hereto, which is incorporated by reference herein.
Item 2.03 Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth
in Item 1.01 above and the full text of the Indenture, which is attached hereto as Exhibit 4.1 is incorporated by reference into
this Item 2.03.
Item 9.01 Financial Statements and Exhibits.
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
Dated: February 21, 2024 |
FIRSTCASH HOLDINGS, INC. |
|
(Registrant) |
|
|
|
/s/ R.
DOUGLAS ORR |
|
R. Douglas Orr |
|
Executive Vice President and Chief Financial Officer |
|
(As Principal Financial and Accounting Officer) |
Exhibit 4.1
FIRSTCASH, INC.
AND EACH OF THE GUARANTORS PARTY HERETO
6.875% SENIOR NOTES DUE 2032
INDENTURE
Dated as of February 21, 2024
BOKF, NA
Trustee
TABLE OF CONTENTS
|
|
|
|
Page |
|
|
|
|
|
Article 1
DEFINITIONS AND INCORPORATION
BY REFERENCE |
|
|
|
|
|
Section 1.01. |
|
Definitions |
|
1 |
Section 1.02. |
|
Other Definitions |
|
30 |
Section 1.03. |
|
Trust Indenture Act |
|
30 |
Section 1.04. |
|
Rules of Construction |
|
30 |
|
|
|
|
|
Article 2
THE NOTES |
|
|
|
|
|
Section 2.01. |
|
Form and Dating |
|
31 |
Section 2.02. |
|
Execution and Authentication |
|
32 |
Section 2.03. |
|
Registrar and Paying Agent |
|
32 |
Section 2.04. |
|
Paying Agent to Hold Money in Trust |
|
32 |
Section 2.05. |
|
Holder Lists |
|
33 |
Section 2.06. |
|
Transfer and Exchange |
|
33 |
Section 2.07. |
|
Replacement Notes |
|
43 |
Section 2.08. |
|
Outstanding Notes |
|
44 |
Section 2.09. |
|
Treasury Notes |
|
44 |
Section 2.10. |
|
Temporary Notes |
|
44 |
Section 2.11. |
|
Cancellation |
|
45 |
Section 2.12. |
|
Defaulted Interest |
|
45 |
Section 2.13. |
|
Issuance of Additional Notes |
|
45 |
|
|
|
|
|
Article 3
REDEMPTION AND PREPAYMENT |
|
|
|
|
|
Section 3.01. |
|
Notices to Trustee |
|
45 |
Section 3.02. |
|
Selection of Notes to Be Redeemed or Purchased |
|
46 |
Section 3.03. |
|
Notice of Redemption |
|
46 |
Section 3.04. |
|
Effect of Notice of Redemption |
|
47 |
Section 3.05. |
|
Deposit of Redemption or Purchase Price |
|
47 |
Section 3.06. |
|
Notes Redeemed or Purchased in Part |
|
48 |
Section 3.07. |
|
Optional Redemption |
|
48 |
Section 3.08. |
|
Mandatory Redemption |
|
49 |
Section 3.09. |
|
Offer to Purchase by Application of Excess Proceeds |
|
49 |
|
|
|
|
|
Article 4 COVENANTS |
|
|
|
|
|
Section 4.01. |
|
Payment of Notes |
|
51 |
Section 4.02. |
|
Maintenance of Office or Agency |
|
51 |
Section 4.03. |
|
Reports |
|
51 |
Section 4.04. |
|
Compliance Certificate |
|
52 |
|
|
|
|
Page |
|
|
|
|
|
Section 4.05. |
|
Taxes |
|
53 |
Section 4.06. |
|
Stay, Extension and Usury Laws |
|
53 |
Section 4.07. |
|
Restricted Payments |
|
53 |
Section 4.08. |
|
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
|
57 |
Section 4.09. |
|
Incurrence of Indebtedness and Issuance of Preferred Stock |
|
60 |
Section 4.10. |
|
Asset Sales |
|
65 |
Section 4.11. |
|
Transactions with Affiliates |
|
67 |
Section 4.12. |
|
Liens |
|
69 |
Section 4.13. |
|
Business Activities |
|
70 |
Section 4.14. |
|
Corporate Existence |
|
70 |
Section 4.15. |
|
Repurchase at the Option of Holders |
|
70 |
Section 4.16. |
|
Limitation on Sale and Leaseback Transactions |
|
72 |
Section 4.17. |
|
Payments for Consent |
|
72 |
Section 4.18. |
|
Additional Note Guarantees |
|
73 |
Section 4.19. |
|
Designation of Restricted and Unrestricted Subsidiaries |
|
73 |
Section 4.20. |
|
Suspension of Certain Covenants |
|
74 |
|
|
|
|
|
Article 5
SUCCESSORS |
|
|
|
|
|
Section 5.01. |
|
Merger, Consolidation or Sale of Assets |
|
74 |
Section 5.02. |
|
Successor Corporation Substituted |
|
76 |
|
|
|
|
|
Article 6
DEFAULTS AND REMEDIES |
|
|
|
|
|
Section 6.01. |
|
Events of Default |
|
76 |
Section 6.02. |
|
Acceleration |
|
78 |
Section 6.03. |
|
Other Remedies |
|
79 |
Section 6.04. |
|
Waiver of Past Defaults |
|
79 |
Section 6.05. |
|
Control by Majority |
|
79 |
Section 6.06. |
|
Limitation on Suits |
|
80 |
Section 6.07. |
|
Rights of Holders of Notes to Receive Payment |
|
80 |
Section 6.08. |
|
Collection Suit by Trustee |
|
80 |
Section 6.09. |
|
Trustee May File Proofs of Claim |
|
81 |
Section 6.10. |
|
Priorities |
|
81 |
Section 6.11. |
|
Undertaking for Costs |
|
81 |
|
|
|
|
|
Article 7
TRUSTEE |
|
|
|
|
|
Section 7.01. |
|
Duties of Trustee |
|
81 |
Section 7.02. |
|
Rights of Trustee |
|
82 |
Section 7.03. |
|
Individual Rights of Trustee |
|
83 |
Section 7.04. |
|
Trustee’s Disclaimer |
|
83 |
Section 7.05. |
|
Notice of Defaults |
|
83 |
Section 7.06. |
|
[Reserved] |
|
84 |
|
|
|
|
Page |
|
|
|
|
|
Section 7.07. |
|
Compensation and Indemnity |
|
84 |
Section 7.08. |
|
Replacement of Trustee |
|
84 |
Section 7.09. |
|
Successor Trustee by Merger, etc. |
|
85 |
Section 7.10. |
|
Eligibility; Disqualification |
|
85 |
Section 7.11. |
|
[Reserved] |
|
86 |
|
|
|
|
|
Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
|
|
|
|
|
Section 8.01. |
|
Option to Effect Legal Defeasance or Covenant Defeasance |
|
86 |
Section 8.02. |
|
Legal Defeasance and Discharge |
|
86 |
Section 8.03. |
|
Covenant Defeasance |
|
87 |
Section 8.04. |
|
Conditions to Legal or Covenant Defeasance |
|
87 |
Section 8.05. |
|
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions |
|
88 |
Section 8.06. |
|
Repayment to Company |
|
88 |
Section 8.07. |
|
Reinstatement |
|
89 |
|
|
|
|
|
Article 9
AMENDMENT, SUPPLEMENT AND WAIVER |
|
|
|
|
|
Section 9.01. |
|
Without Consent of Holders of Notes |
|
89 |
Section 9.02. |
|
With Consent of Holders of Notes |
|
90 |
Section 9.03. |
|
[Reserved] |
|
92 |
Section 9.04. |
|
Revocation and Effect of Consents |
|
92 |
Section 9.05. |
|
Notation on or Exchange of Notes |
|
92 |
Section 9.06. |
|
Trustee to Sign Amendments, etc. |
|
92 |
|
|
|
|
|
Article 10
NOTE GUARANTEES |
|
|
|
|
|
Section 10.01. |
|
Guarantee |
|
92 |
Section 10.02. |
|
Limitation on Guarantor Liability |
|
93 |
Section 10.03. |
|
Execution and Delivery of Note Guarantee |
|
94 |
Section 10.04. |
|
Guarantors May Consolidate, etc., on Certain Terms |
|
94 |
Section 10.05. |
|
Releases |
|
96 |
|
|
|
|
|
Article 11
SATISFACTION AND DISCHARGE |
|
|
|
|
|
Section 11.01. |
|
Satisfaction and Discharge |
|
97 |
Section 11.02. |
|
Application of Trust Money |
|
98 |
|
|
|
|
|
Article 12
MISCELLANEOUS |
|
|
|
|
|
Section 12.01. |
|
[Reserved] |
|
98 |
Section 12.02. |
|
Notices |
|
98 |
|
|
|
|
Page |
|
|
|
|
|
Section 12.03. |
|
[Reserved] |
|
99 |
Section 12.04. |
|
Certificate and Opinion as to Conditions Precedent |
|
99 |
Section 12.05. |
|
Statements Required in Certificate or Opinion |
|
99 |
Section 12.06. |
|
Rules by Trustee and Agents |
|
100 |
Section 12.07. |
|
No Personal Liability of Directors, Officers, Employees and Stockholders |
|
100 |
Section 12.08. |
|
Governing Law |
|
100 |
Section 12.09. |
|
No Adverse Interpretation of Other Agreements |
|
100 |
Section 12.10. |
|
Successors |
|
100 |
Section 12.11. |
|
Severability |
|
100 |
Section 12.12. |
|
Counterpart Originals |
|
100 |
Section 12.13. |
|
Table of Contents, Headings, etc. |
|
101 |
EXHIBITS
|
|
|
Exhibit A |
|
FORM OF NOTE |
Exhibit B |
|
FORM OF CERTIFICATE OF TRANSFER |
Exhibit C |
|
FORM OF CERTIFICATE OF EXCHANGE |
Exhibit D |
|
FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR |
Exhibit E |
|
FORM OF SUPPLEMENTAL INDENTURE |
INDENTURE, dated as of February 21,
2024, among FirstCash, Inc., a Delaware corporation, the Guarantors from time-to-time party hereto (as defined below) and BOKF, NA,
as trustee (in such capacity, the “Trustee”).
The Company, the Guarantors
and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined below)
of the 6.875% Senior Notes due 2032 (the “Notes”):
Article 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
“144A Global Note”
means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
“2028 Notes”
means the Company’s $500 million in aggregate principal amount of 4.625% senior notes due 2028.
“2028 Notes Issue
Date” means August 26, 2020, the issue date of the 2028 Notes.
“2030 Notes”
means the Company’s $550 million in aggregate principal amount of 5.625% senior notes due 2030.
“2030 Notes Issue
Date” means December 13, 2021, the issue date of the 2030 Notes.
“Acquired Debt”
means, with respect to any specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, or
expressly assumed in connection with the acquisition of assets from any such Person, whether or not such Indebtedness is incurred in connection
with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.
“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 purposes of this definition, “control,” as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
“Additional Notes”
means additional Notes (other than the Initial Notes) issued under this Indenture in accordance with Sections 2.02, 2.13 and 4.09 hereof,
as part of the same series as the Initial Notes.
“Agent”
means any Registrar, co-registrar, Paying Agent or additional paying agent.
“Applicable Procedures”
means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
“Applicable Premium”
means, with respect to any Note on any redemption date, the greater of:
(1) 1.0%
of the principal amount of the Note; or
(2) the
excess of:
(a) the
present value at such redemption date of (i) the redemption price of the Note at March 1, 2027 (such redemption price being
set forth in the table appearing under Section 3.07(e)) plus (ii) all required interest payments due on the Note through March 1,
2027 (excluding accrued but unpaid interest to, but not including, the redemption date), computed using a discount rate equal to the Treasury
Rate as of such redemption date plus 50 basis points; over
(b) the
principal amount of the Note.
“Asset Sale”
means:
(1) the
sale, lease, conveyance or other disposition of any assets or rights by the Parent or any of its Restricted Subsidiaries; provided
that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Parent and its Restricted Subsidiaries
taken as a whole will be governed by the provisions of Section 4.15 and/or the provisions of Section 5.01 and not by the provisions
of Section 4.10; and
(2) the
issuance of Equity Interests by any of the Parent’s Restricted Subsidiaries or the sale by the Parent or any of its Restricted Subsidiaries
of Equity Interests in any of the Parent’s Subsidiaries (in each case, other than directors’ qualifying shares, shares to
be held by third parties to meet the applicable legal requirements and Disqualified Stock and preferred stock issued in compliance with
Section 4.07),
in the case of either clause (1) or (2),
whether in a single transaction or a series of related transactions:
(A) that
have a Fair Market Value in excess of $35.0 million; or
(B) for
Net Proceeds in excess of $35.0 million.
Notwithstanding the preceding,
none of the following items will be deemed to be an Asset Sale:
(1) a
transfer of assets between or among the Parent and its Restricted Subsidiaries (including any transfer to any Person that concurrently
becomes a Restricted Subsidiary);
(2) an
issuance of Equity Interests by a Restricted Subsidiary of the Parent to the Parent or to a Restricted Subsidiary thereof;
(3) the
sale, lease or other transfer of inventory, products, services, accounts receivable or other assets in the ordinary course of business
(whether or not for cash), and any sale or other disposition of surplus, damaged, worn-out or obsolete assets in the ordinary course of
business (including the abandonment, cancellation or other disposition of intellectual property that is, in the reasonable judgment of
the Parent, no longer economically practicable to maintain or useful in the conduct of the business of the Parent and its Restricted Subsidiaries
taken as whole);
(4) dispositions
of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property
or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(5) leases,
subleases, non-exclusive licenses or sublicenses of any property (including intellectual property) in the ordinary course of business;
(6) any
surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary
course of business;
(7) the
creation, granting or perfection of Liens not prohibited by Section 4.12 hereof, or foreclosures, expropriations, condemnations or
similar actions with respect to assets subject to such Liens;
(8) the
sale or other disposition of cash or Cash Equivalents;
(9) transfers
of property or assets subject to casualty, condemnation or similar event upon receipt of the casualty and condemnation proceeds thereof;
(10) assignments
of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease and Liens or rights
reserved in any lease for rent or for compliance with the terms of such lease;
(11) (i) sales,
transfers and other dispositions of joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between
the joint venture parties set forth in joint venture arrangements and similar binding arrangements and (ii) the winding down or dissolution
of joint ventures;
(12) a
Restricted Payment that does not violate Section 4.07 or is a Permitted Investment;
(13) to
the extent allowable under Section 1031 of the Code (or comparable successor provision), any exchange of like property for use in
a Permitted Business;
(14) any
release of intangible claims or rights in connection with a lawsuit, dispute or other controversy;
(15) terminations
of Hedging Obligations;
(16) termination
of a lease or sublease of real or personal property that is not necessary for the ordinary course of business;
(17) the
sale or discount of accounts receivable in connection with the compromise or collection thereof or in bankruptcy or in a similar proceeding;
(18) the
expiration of any contract, contract right or other agreement in accordance with its terms;
(19) a
merger, dissolution, liquidation or consolidation, the purpose of which is to substantially concurrently effect a disposition or merger
that is permitted under this Indenture;
(20) dispositions
of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary;
(21) rights
granted to others pursuant to leases or licenses, to the extent not materially interfering with the operations of the Parent or its Restricted
Subsidiaries;
(22) the
licensing of patents, trademarks, know-how or any other intellectual property to third Persons in the ordinary course of business consistent
with past practice; provided that such licensing does not materially interfere with the business of the Parent or any of its Restricted
Subsidiaries;
(23) any
swap of assets, or lease, assignment or sublease of any real or personal property, in exchange for services (including in connection with
any outsourcing arrangements) of comparable or greater value or usefulness to the business of the Parent and the Restricted Subsidiaries
as a whole, as determined in good faith by the Parent;
(24) any
disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the
Parent or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired
its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case
comprising all or a portion of the consideration in respect of such sale or acquisition;
(25) an
assignment of an account to an insurance company providing credit insurance to the Parent or any of its Subsidiaries for purposes of collecting
insurance proceeds; and
(26) sales
of accounts receivable, or participations therein, and related assets in connection with a Permitted Receivables Financing.
“Attributable Debt”
in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for
which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if
such sale and leaseback transaction results in a Capital Lease Obligation (other than a Deemed Capitalized Lease), the amount of Indebtedness
represented thereby will be determined in accordance with the definition of “Capital Lease Obligation.”
“Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Beneficial Owner”
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person”
will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms
“Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.
“Board of Directors”
means:
(1) with
respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such
board;
(2) with
respect to a partnership, the board of directors of the general partner of the partnership;
(3) with
respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with
respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day”
means any day other than a Legal Holiday.
“Capital Lease Obligation”
means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time
be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the
lessee without payment of a penalty.
“Capital Stock”
means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(3) in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or
not such debt securities include any right of participation with Capital Stock.
“Cash Equivalents”
means:
(1) United
States dollars;
(2) securities
issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States
government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities
of not more than one year from the date of acquisition;
(3) certificates
of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months and overnight bank deposits, in each case, with any lender party to the Credit Agreement or with any
domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or
better;
(4) repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications specified in clause (3) above;
(5) commercial
paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within one year after
the date of acquisition;
(6) money
market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of
this definition; and
(7) instruments
equivalent to those referred to in clauses (1) through (6) above denominated in any foreign currency and comparable in credit
quality and tenor to those referred to above and commonly used by Persons for cash management purposes in any jurisdiction outside the
United States to the extent reasonably required in connection with any business conducted by the Parent or any Restricted Subsidiary.
“Change of Control”
means the occurrence of any of the following:
(1) the
direct or indirect 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 properties or assets of the Parent and its Subsidiaries taken as a
whole to any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act));
(2) the
adoption of a plan relating to the liquidation or dissolution of the Company; or
(3) the
consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any Person (including
any “person” (as defined above) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock
of the Company, measured by voting power rather than number of shares.
Notwithstanding
the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Parent becomes a direct or indirect wholly-owned
Subsidiary of a holding company and (2)(A) the direct or indirect Beneficial Owners of the Voting Stock of such holding company immediately
following that transaction are substantially the same as the Beneficial Owners of the Voting Stock of the Company immediately prior to
that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements
of this sentence) is the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Clearstream”
means Clearstream Banking, S.A.
“Company”
means FirstCash, Inc., and any and all successors thereto.
“Consolidated EBITDA”
means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without
duplication:
(1) provision
for taxes of such Person and its Restricted Subsidiaries, including federal, foreign, state, local, franchise, excise and similar taxes
paid or accrued during such period (including in respect of repatriated funds) for such period, to the extent that such provision for
taxes was deducted in computing such Consolidated Net Income; plus
(2) the
Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing
such Consolidated Net Income; plus
(3) any
foreign currency translation losses (including losses related to currency remeasurements of Indebtedness) of such Person and its Restricted
Subsidiaries for such period, to the extent that such losses were taken into account in computing such Consolidated Net Income; plus
(4) any
(a) salary, benefit and other direct savings resulting from workforce reductions by such Person, (b) relocation costs or expenses
of such Person and (c) costs and expenses incurred related to employment of terminated employees incurred by such Person, in each
case to the extent that such costs and expenses were deducted in computing such Consolidated Net Income; plus
(5) transaction
fees, costs and expenses incurred to the extent actually reimbursed by third parties pursuant to indemnification provisions or insurance;
plus
(6) proceeds
of business interruption insurance in an amount representing the losses for the applicable period that such proceeds are intended to replace;
plus
(7) depreciation,
amortization (including amortization or charge-off of intangibles but excluding amortization of prepaid cash expenses that were paid in
a prior period) and other non-cash charges and expenses (excluding any such non-cash charge or expense to the extent that it represents
an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization
and other non-cash charges or expenses were deducted in computing such Consolidated Net Income; plus
(8) non-cash
loss (minus non-cash gains) from the early extinguishment of Hedging Obligations or other derivative instruments, to the extent
that such losses (or gains) were taken into account in computing such Consolidated Net Income; plus
(9) director
fees, expense reimbursements and indemnification payments paid to directors and board observers; plus
(10) (a) any
non-cash expenses resulting from the grant or periodic remeasurement of stock options, restricted stock grants or other equity incentive
programs (including any stock appreciation and similar rights) and (b) any costs or expenses incurred pursuant to any management
equity plan or stock option plan or other management or employee benefit plan or agreement or any stock subscription or shareholder agreement;
plus
(11) expected
cost savings, operating expense reductions, restructuring charges and expenses and synergies as a result of permitted asset sales, acquisitions,
investments, dispositions, operating improvements, restructurings, cost savings initiatives and specified transactions taken or to be
taken by the Parent and its Subsidiaries, net of the amount of actual benefits realized during such period from such actions; provided
that such cost savings, operating expense reductions, restructuring charges and expenses and synergies shall be reasonably identifiable
and factually supportable and shall be reasonably anticipated to be realized within 18 months after the applicable permitted asset sale,
acquisition, investment, disposition, operating improvement, restructuring, cost savings initiative or specified transaction; plus
(12) expenses,
charges and fees deducted during the specified period and covered by indemnification or purchase price adjustments and earn-out payments
in connection with any acquisition permitted under this Indenture, to the extent actually received in cash; plus
(13) losses
on sales or dispositions of assets outside the ordinary course of business, to the extent that such losses were deducted in computing
such Consolidated Net Income; plus
(14) losses
deducted during the specified period, but for which indemnity recovery is actually received in cash during such period or reasonably expected
to be received within 180 days after the end of such period; plus
(15) expenses
deducted during the specified period and reimbursed by third parties to the extent such reimbursements are actually received in cash during
such period or reasonably expected to be received in cash within 180 days after the end of such period; plus
(16) the
amount of loss on a sale of receivables and related assets to a Securitization Subsidiary in connection with a Permitted Receivables Financing;
minus
(17) non-cash
items increasing such Consolidated Net Income for such period, other than (a) the accrual of revenue in the ordinary course of business,
(b) any such non-cash item to the extent it will result in the receipt of cash payments in any future period or in respect of which
cash was received in a prior period or (c) which represent the reversal of any accrual of, or cash reserve for, anticipated cash
charges in any prior period,
in each case, on a consolidated basis and determined
in accordance with GAAP.
Notwithstanding the preceding,
the provision for taxes based on the income or profits of, and the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Parent will be added to Consolidated Net Income to compute Consolidated EBITDA of the Parent only to the extent that
a corresponding amount would be permitted at the date of determination to be dividend to the Parent by such Restricted Subsidiary without
prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter
and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted
Subsidiary or its stockholders.
“Consolidated Net
Income” means, with respect to any specified Person for any period, the aggregate of the net income (loss) of such Person and
its Restricted Subsidiaries for such period, on a consolidated basis (excluding the net income (loss) of any Unrestricted Subsidiary of
such Person), determined in accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:
| (1) | all gains or losses realized in connection with the early extinguishment of Indebtedness will be excluded; |
| (2) | any after-tax gains or non-cash losses attributable to asset sales or returned surplus assets of any employee
pension benefit plan will be excluded; |
| (3) | the net income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for
by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash
to the specified Person or a Restricted Subsidiary of the Person; |
| (4) | the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or is
merged into or consolidated with the Parent or any of its Restricted Subsidiaries or that Person’s assets are acquired by the Parent
or any of its Restricted Subsidiaries, will be excluded; |
| (5) | the net income (but not loss) of any Restricted Subsidiary that is not the Company or a Subsidiary Guarantor
will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of
that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its stockholders (other than (x) restrictions that have been
waived or otherwise released, and (y) restrictions pursuant to the Notes or this Indenture), except that (A) the Parent’s
equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the
aggregate amount of any dividend or distribution that was or that could have been made by such Restricted Subsidiary during such period
to the Parent or another Restricted Subsidiary and (B) the net loss of such Restricted Subsidiary shall be included to the extent
of the aggregate Investment of the Parent or any of its other Restricted Subsidiaries in such Restricted Subsidiary; |
| (6) | any unrealized foreign currency translation or transaction gains or losses (including gains related to
currency remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for such period will be excluded; |
| (7) | the cumulative effect of a change in accounting principles or accounting standards (including prospective
effects) will be excluded; |
| (8) | any net gains, charges or losses on disposed, abandoned and discontinued operations (other than assets
held for sale) and any accretion or accrual of discontinued operations will be excluded; |
| (9) | effects of purchase accounting adjustments (including the effects of such adjustments pushed down to such
Person and its Restricted Subsidiaries) in component amounts required or permitted by GAAP, resulting from the application of purchase
accounting in relation to any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, will be excluded; |
| (10) | non-cash gains and losses attributable to movement in the mark-to-market valuation of Hedging Obligations
pursuant to ASC Topic 815 will be excluded; |
| (11) | the reduction in any Person’s federal income tax liability in connection with an offsetting benefit
resulting from the issue or sale of Qualifying Equity Interests of such Person upon the exercise of stock options, warrants or other convertible
or exchangeable securities as determined in accordance with GAAP will be included, without duplication; |
| (12) | any non-recurring fees, costs and expenses of such Person and its Restricted Subsidiaries Incurred as
a result of (a) Investments or sales or dispositions of assets permitted hereunder, (b) the issuance, repayment or amendment
or Equity Interests or Indebtedness permitted under this Indenture, and (c) litigation settlements will be excluded; |
| (13) | unusual or non-recurring charges in connection with employee severance, lease terminations and lease buyouts
related to closure or consolidation of stores, termination or restructuring of merchant relationships and related contracts, termination
or restructuring of bank partnerships and related contracts and write-off of assets related to asset sales, acquisitions, investments,
restructurings and dispositions will be excluded; |
| (14) | any out-of-pocket fees or expenses, losses or charges (other than depreciation or amortization expense)
related to any issuance, Investment, acquisition, disposition, conveyance or recapitalization or the incurrence or repayment of Indebtedness
(including a refinancing or amendment, waiver or modification thereof), in each case, permitted under this Indenture (including any such
transaction consummated prior to or after the Issue Date and any such transaction undertaken whether or not successful) will be excluded; |
| (15) | non-recurring restructuring charges or reserves and business optimization expense, including any restructuring
costs and integration costs, cost-savings initiatives, retention charges, contract termination costs, retention, recruiting, relocation,
severance and signing bonuses and expenses, costs and expenses relating to out-placement services, future lease commitments, systems establishment
costs, conversion costs and excess pension charges, consulting fees; and |
| (16) | to the extent not included in clauses (1) through (15) above, any net extraordinary gains or net
extraordinary losses will be excluded. |
“Consolidated Total
Assets” of any Person as of any date means the total assets of such Person and its Restricted Subsidiaries as of the most recent
fiscal quarter end for which a consolidated balance sheet of such Person and its Restricted Subsidiaries is available, calculated on a
consolidated basis in accordance with generally accepted accounting principles (with pro forma adjustments as are appropriate and
consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio”).
“Consolidated Total Debt” shall
mean, at any date, the aggregate principal amount of all Indebtedness of the Parent and its Restricted Subsidiaries at such date under
clauses (1), (2), (3), (4) and (5) of the definition of Indebtedness.
“Consolidated Total
Debt Ratio” shall mean, as of any date of determination, the ratio of (1) Consolidated Total Debt of the Parent and its
Restricted Subsidiaries minus cash and Cash Equivalents of the Parent and its Restricted Subsidiaries at such date to (2) Consolidated
EBITDA of the Parent for the most recently ended four full fiscal quarters for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments
to Consolidated Total Debt and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set
forth in the definition of “Fixed Charge Coverage Ratio.”
“continuing”
means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
“Corporate Trust
Office of the Trustee” means the address of the Trustee specified in Section 12.01 hereof or such other address as to which
the Trustee may give notice to the Company.
“Credit Agreement”
means that certain Credit Agreement, dated as of July 25, 2016, by and among the Company, certain subsidiaries of the Company from
time to time party thereto, the lenders party thereto and Wells Fargo Bank, National Association, including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified,
renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced in whole or in part from time
to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the
amount of available borrowings thereunder or adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all
or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other
agent, lender or group of lenders.
“Credit Facilities”
means, one or more debt facilities (including, without limitation, any Credit Agreement), debt securities, indentures, commercial paper
facilities, other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’
acceptances) or instruments or agreements evidencing any other Indebtedness, in each case, with the same or different borrowers or issuers
and with banks or other institutional lenders, accredited investors or institutional investors providing for revolving credit loans, term
loans, term debt, debt securities, receivables financing (including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables and including any Permitted Receivables Financing) or letters of
credit, in each case, as amended, restated, modified, renewed, extended, increased, refunded, replaced in any manner (whether upon or
after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or
in part from time to time (and without limitation as to amount, terms, conditions, covenants and other provisions, including increasing
the amount of available borrowings thereunder, changing or replacing agent banks and lenders thereunder or adding, removing or reclassifying
Subsidiaries of the Parent as borrowers or guarantors thereunder).
“CSO Obligations”
means obligations to purchase, or other Guarantees of, consumer loans the making of which were facilitated by the Parent or any Restricted
Subsidiary acting as a credit services organization or other similar service provider.
“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Deemed Capitalized
Leases” means obligations of the Parent or any Restricted Subsidiary thereof that are classified as “capital lease obligations”
under GAAP due to the application of ASC Topic 840 or any subsequent pronouncement having similar effect and, except for such regulation
or pronouncement, such obligation would not constitute a Capital Lease Obligation.
“Default”
means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Definitive Note”
means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.
“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
“Derivative Instrument”
with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which
such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment
in the Notes (other than a Regulated Bank or a Screened Affiliate) is a party (whether or not requiring further performance by such Person),
the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the
Notes and/or the creditworthiness of the Company and/or any one or more of the Note Guarantors (the “Performance References”).
“Designated Noncash
Consideration” means the fair market value of noncash consideration received by the Parent or a Restricted Subsidiary in connection
with an Asset Sale that is so designated as Designated Noncash Consideration pursuant to an Officers’ Certificate, setting forth
the basis of such valuation, executed by an executive vice president and the principal financial officer of the Parent, less the amount
of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Noncash Consideration.
“Disqualified Stock”
means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable,
in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part,
on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, (1) any
Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Parent
to repurchase such Capital Stock upon the occurrence of a Change of Control or an asset sale will not constitute Disqualified Stock if
the terms of such Capital Stock provide that the Parent may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies Section 4.07 hereof, (2) if such Capital Stock is issued to any employee or to
any plan for the benefit of employees of the Parent or its Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be repurchased in order to satisfy applicable statutory or regulatory
obligations and (3) any Capital Stock held by any future, current or former employee, director, manager or consultant (or their respective
trusts, estates, investment funds, investment vehicles or immediate family members) of the Parent, any of its Subsidiaries or any direct
or indirect parent entity of the Parent upon the termination of employment, death or disability of such person pursuant to any stockholders’
agreement, management equity plan, stock option plan or any other management or employee benefit plan or agreement shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the Parent or its Subsidiaries. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Parent and its Restricted Subsidiaries
may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive
of accrued dividends.
“Domestic Subsidiary”
means any Restricted Subsidiary of the Parent that was formed under the laws of the United States or any state of the United States or
the District of Columbia or that guarantees any Indebtedness of the Company, other than any such Restricted Subsidiary of the Parent that
has no material assets other than equity, or equity and indebtedness, of one or more Foreign Subsidiaries or that is owned by a Foreign
Subsidiary.
“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
“Equity Offering”
means a public sale either (1) of Equity Interests of the Parent by the Parent (other than Disqualified Stock and other than to a
Subsidiary of the Parent) or (2) of Equity Interests of a direct or indirect parent entity of the Parent (other than to the Parent
or a Subsidiary thereof) to the extent that the net proceeds therefrom are contributed to the common equity capital of the Parent.
“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Existing Indebtedness”
means all Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Credit Agreement or the Notes) in existence
on the date of this Indenture, until such amounts are repaid.
“Fair Market Value”
means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity
of either party, determined in good faith by senior management of the Parent and, with respect to any transaction involving aggregate
value in excess of $25 million, by the Board of Directors of the Parent (unless otherwise provided in this Indenture).
“Fixed Charge Coverage
Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated EBITDA of such Person for such
period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working
capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro
forma effect (in accordance with Regulation S-X under the Securities Act) to such incurrence, assumption, Guarantee, repayment, repurchase,
redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use
of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes
of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions
that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, Investments,
dispositions and discontinued operations that have been made by the specified Person or any of its Restricted Subsidiaries or any Person
or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including all related
financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro
forma effect (in accordance with Regulation S-X under the Securities Act) as if they had occurred on the first day of the four-quarter
reference period;
(2) the
Consolidated EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date, will be excluded;
(3) the
Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership
interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise
to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation
Date;
(4) any
Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during
such four-quarter period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged
with or into the specified Person or any of its Restricted Subsidiaries since the beginning of such period shall have made any acquisitions
(including through mergers or consolidations), Investments, dispositions and discontinued operations that would have required adjustment
pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such
period as if such acquisitions (including through mergers or consolidations), Investments, dispositions and discontinued operations
had occurred at the beginning of the applicable four quarter period;
(5) any
Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time
during such four-quarter period; and
(6) if
any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect
on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months). For purposes of making
the computation referred to above, interest on any Indebtedness to the extent incurred for working capital purposes under a revolving
credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during
the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rate, will be deemed to have been based upon the rate actually chosen, or,
if none, then based upon such optional rate chosen as the Parent or a Restricted Subsidiary may designate pursuant to the terms and conditions
of any such Indebtedness.
“Fixed
Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) the
consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations (but excluding any interest
expense attributable to Deemed Capitalized Leases), imputed interest with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments
made or received pursuant to Hedging Obligations in respect of interest rates; provided that commissions, discounts, yield and
other fees and charges (including any interest expense) related to any Permitted Receivables Financing shall be excluded; plus
(2) the
consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus
(3) any
interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien
on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(4) the
product of (a) all dividends (excluding items eliminated in consolidation), whether paid or accrued and whether or not in cash, on
any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely
in Equity Interests of the Parent (other than Disqualified Stock) or to the Parent or a Restricted Subsidiary thereof, times (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;
in each case, excluding (i) the amortization
or write-off of debt issuance costs and deferred financing fees, commissions, fees and expenses and (ii) any expensing of loan commitment
and other financing fees.
“Foreign Subsidiary”
means any Restricted Subsidiary that is not a Domestic Subsidiary.
“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect
from time to time.
“Global Note Legend”
means the legend set forth in Section 2.06(g)(2) hereof, which is required to be placed on all Global Notes issued under this
Indenture.
“Global Notes”
means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf
of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A hereto and that bears the
Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance
with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(1), 2.06(d)(2) or 2.06(d)(3) hereof.
“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges
its full faith and credit.
“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business or indemnities,
product warranties or similar obligations incurred in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit (other than letters of credit issued in connection with CSO Obligations)
or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements,
or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions
or otherwise).
“Guarantors”
means (i) the Parent and (ii) any Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions
of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released
in accordance with the provisions of this Indenture.
“Hedging Obligations”
means, with respect to any specified Person, the obligations of such Person under:
(1) interest
rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar
agreements;
(2) other
agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) other
agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.
“Holder”
means a Person in whose name a Note is registered.
“IAI Global Note”
means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.
“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether
or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by or issued in exchange for bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect
thereof), other than letters of credit issued in connection with CSO Obligations;
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;
(5) representing
the balance deferred and unpaid of the purchase price of any property or services due more than one year after such property is acquired
or such services are completed; or
(6) representing
any Hedging Obligations,
if and to the extent any of the preceding items
(other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP, but excluding Deemed Capitalized Leases. In addition, the term “Indebtedness” includes
all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the
specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.
The amount of Indebtedness of any Person under the immediately preceding sentence shall (unless such Indebtedness has been assumed by
such Person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the Fair Market
Value of the property encumbered thereby. Indebtedness shall be calculated without giving effect to the effects of ASC Topic 815 and related
interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture
as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
Notwithstanding the foregoing, Indebtedness
shall not include (x) CSO Obligations or (y) obligations under or in respect of any Permitted Receivables Financing.
“Indenture”
means this Indenture, as amended, modified or supplemented from time to time.
“Indirect Participant”
means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes”
means the first $500.0 million aggregate principal amount of Notes issued under this Indenture on the date hereof.
“Initial Purchaser”
means any of Jefferies LLC, Wells Fargo Securities, LLC, Stephens Inc. and Fifth Third Securities, Inc.
“Institutional Accredited
Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act, who are not also QIBs.
“Investment Grade
Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P,
or if either (or both) of Moody’s and S&P have been substituted in accordance with the definition of “Rating Agencies,”
by each of the then applicable Rating Agencies.
“Investments”
means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital contributions (excluding accounts receivable arising in the
ordinary course of business on terms customary in the trade, commission, travel, entertainment, relocation and similar advances to directors,
officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance
with GAAP. If the Parent or any Restricted Subsidiary thereof sells or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Parent such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted
Subsidiary of the Parent, the Parent will be deemed to have made an Investment on the date of any such sale or disposition equal to the
Fair Market Value of the Parent’s Investments in such Subsidiary that were not sold or disposed of in an amount determined pursuant
to Section 4.07(c) hereof. The acquisition by the Parent or any Restricted Subsidiary thereof of a Person that holds an Investment
in a third Person will be deemed to be an Investment by the Parent or such Restricted Subsidiary in such third Person in an amount equal
to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined pursuant to Section 4.07(c) hereof.
Except as otherwise provided in this Indenture and subject to Section 4.07(a)(iii)(C) and 4.07(a)(iii)(D) hereof, the amount
of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value, but giving
effect (without duplication) to all subsequent reductions in the amount of such Investment as a result of (x) any dividend, distribution,
interest payment, return of capital, repayment or other payment or disposition thereof (determined at the time of such sale) or (y) any
cancellation of any Investment in the form of a Guarantee without payment therefor by such guarantor, in each case, not to exceed the
original amount of such Investment. Any Investment in the form of a Guarantee shall be equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof, as determined by the Parent.
“Issue Date”
means February 21, 2024.
“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
“Long Derivative
Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations
under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases,
and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“Moody’s”
means Moody’s Investors Service, Inc.
“Net
Proceeds” means the aggregate amount of cash proceeds and Cash Equivalents received by the Parent or any of its Restricted Subsidiaries
in respect of any Asset Sale (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition
of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, brokerage and sales commissions, appropriate amounts to be provided by the Parent or a
Restricted Subsidiary as a reserve required in accordance with GAAP against any adjustment in the sale price of such asset or assets or
liabilities associated with such Asset Sale and retained by the Parent or any Restricted Subsidiary, as the case may be, after such Asset
Sale, payments required to be made to any Person (other than to the Parent or its Restricted Subsidiaries) owning a beneficial
interest in the assets subject to such Asset Sale, payments of unassumed liabilities (not constituting Indebtedness and not owed to the
Parent or any Subsidiary) relating to the assets sold at the time of, or within 30 days after the date of, such Asset Sale and any relocation
expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into
account any available tax credits or deductions and any tax sharing arrangements, and amounts required to be applied to the repayment
of Indebtedness, other than Indebtedness under a Credit Facility, secured by a Lien on the asset or assets that were the subject of such
Asset Sale and any reserve for adjustment or indemnification obligations in respect of the sale price of such asset or assets established
in accordance with GAAP.
Notwithstanding the foregoing
or anything to the contrary in Section 4.10, to the extent that the Parent has determined in good faith that repatriation of any
or all of the Net Proceeds of any Asset Sales by a Foreign Subsidiary (i) is prohibited, restricted or delayed by applicable local
law or (ii) could result in a material adverse tax consequence to the Parent or its Subsidiaries, an amount equal to the portion
of such Net Proceeds so affected will not constitute Net Proceeds or be required to be applied in compliance with the covenant described
under Section 5.01; provided that, in any event, the Parent shall use its commercially reasonable efforts to take actions
within its reasonable control that are reasonably required to eliminate such tax effects.
“Net
Short” means, with respect to a Holder or beneficial owner, as of a date of determination, either (i) the value
of its Short Derivative Instruments exceeds the sum of (x) the value of its Notes plus (y) the value of its Long Derivative
Instruments as of such date of determination or (ii) it is reasonably expected that such would have been the case were a Failure
to Pay or Bankruptcy Credit Event (each as defined in the 2014 International Swaps and Derivatives Association, Inc. Credit Derivatives
Definitions) to have occurred with respect to the Company or any Note Guarantor immediately prior to such date of determination.
“Non-Recourse Debt”
means Indebtedness:
(1) as
to which neither the Parent nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise;
and
(2) as
to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Parent or any of
its Restricted Subsidiaries (other than the Equity Interests of an Unrestricted Subsidiary).
“Non-U.S. Person”
means a Person who is not a U.S. Person.
“Note Guarantee”
means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
“Notes”
has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and the Additional Notes shall be treated as a single
class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the
Initial Notes and any Additional Notes.
“Obligations”
means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.
“Offering Memorandum”
means the offering memorandum, dated February 15, 2024, with respect to the offer and sale of the Initial Notes.
“Officer”
means, with respect to any Person, the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such
Person.
“Officers’
Certificate” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements
of Section 12.05 hereof.
“Opinion of Counsel”
means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 12.05 hereof.
The counsel may be an employee of or counsel to the Parent any Subsidiary of the Parent or the Trustee.
“Parent”
means FirstCash Holdings, Inc. in its capacity as a direct parent of the Company, together with its permitted successors and assigns.
“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream,
respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Business”
means any business that is the same as, or reasonably related, ancillary or complementary to, any of the businesses in which the Parent
and its Restricted Subsidiaries are engaged on the date of this Indenture, and reasonable extensions, developments or expansions of such
businesses.
“Permitted Investments”
means:
(1) any
Investment in the Parent or in a Restricted Subsidiary thereof;
(2) any
Investment in cash and Cash Equivalents;
(3) any
Investment by the Parent or any Restricted Subsidiary thereof in a Person, if as a result of such Investment:
(a) such
Person becomes a Restricted Subsidiary of the Parent; or
(b) such
Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Parent or a Restricted Subsidiary thereof;
(4) non-cash
consideration received in connection with a sale or disposition of assets permitted under this Indenture, including any Investment made
as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Sections 4.10
and 4.15 hereof.
(5) any
acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the
Parent;
(6) any
Investments received (a)(i) in exchange for any other Investment or accounts receivable held by the Parent or any of its Restricted
Subsidiaries in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable (including any trade creditor or customer) or (ii) in good faith settlement of delinquent obligations
of, and other disputes with, customers, trade debtors, licensors, licensees and suppliers arising in the ordinary course; (b) as
a result of a foreclosure by the Parent or any of the Restricted Subsidiaries with respect to any secured Investment or other transfer
of title with respect to any secured Investment in default; or (c) in compromise or resolution of litigation, arbitration or other
disputes;
(7) Investments
represented by Hedging Obligations;
(8) loans
or advances to employees made in the ordinary course of business of the Parent or any Restricted Subsidiary thereof in an aggregate principal
amount not to exceed $5.0 million at any time outstanding;
(9) repurchases
of the Notes;
(10) any
guarantee permitted to be incurred by Section 4.09 hereof;
(11) Investments
consisting of earnest money deposits required in connection with a purchase agreement or other acquisition;
(12) advances,
loans, rebates or extensions of trade credit to customers or suppliers in the ordinary course of business by the Parent or any of its
Restricted Subsidiaries
(13) any
Investment existing on, or made pursuant to binding commitments existing on, the date of this Indenture and any Investment consisting
of an extension, modification or renewal of any Investment existing on, or made pursuant to a binding commitment existing on, the date
of this Indenture; provided that the amount of any such Investment may be increased (a) as required by the terms of such Investment
as in existence on the date of this Indenture or (b) as otherwise permitted under this Indenture;
(14) Investments
acquired after the date of this Indenture as a result of the acquisition by the Parent or any Restricted Subsidiary thereof of another
Person, including by way of a merger, amalgamation or consolidation with or into the Parent or any of its Restricted Subsidiaries, or
all or substantially all of the assets of another Person, in each case, in a transaction that is not prohibited by Section 5.01 hereto
after the date of this Indenture to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation
or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(15) Investments
constituting deposits, prepayments and other credits to suppliers or lessors made in the ordinary course of business;
(16) deposits
of cash made in the ordinary course of business to secure performance of operating leases;
(17) pawn
transactions, pawn loans and other consumer loans or participations therein in the ordinary course of the day-to-day business of the Parent
and its Restricted Subsidiaries;
(18) the
licensing or contribution of intellectual property to another Person pursuant to any distribution, service, license, joint marketing,
co-branding, co-distribution or other similar arrangements with other Persons, however denominated;
(19) letters
of credit issued in connection with CSO Obligations;
(20) Investments
in any Person to the extent such Investments consist of prepaid expenses, and lease, utility, workers’ compensation and other deposits
made in the ordinary course of business by the Parent or any of its Restricted Subsidiaries;
(21) stock,
obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Parent or any Restricted
Subsidiary or in satisfaction of judgments;
(22) commissions,
payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as operating
expenses for accounting purposes and that are made in the ordinary course of business;
(23) CSO
Obligations of the Parent or any Restricted Subsidiary;
(24) Investments
in a Securitization Subsidiary that are necessary or desirable to effect any Permitted Receivables Financing or any repurchases in connection
therewith; and
(25) other
Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (25) that are at the
time outstanding not to exceed the greater of $100.0 million or 2.50% of Consolidated Total Assets.
“Permitted Liens”
means:
(1) Liens
on assets of the Company or any Guarantor or any of its Restricted Subsidiaries securing Indebtedness and other Obligations under Credit
Facilities that was permitted by the terms of this Indenture to be incurred pursuant to clause (1) or clause (19) of the definition
of Permitted Debt;
(2) Liens
to secure Hedging Obligations and/or Obligations with respect to Treasury Management Arrangements incurred in the ordinary course of business;
(3) Liens
on property of a Person (including Equity Interests) existing at the time such Person becomes a Restricted Subsidiary of the Parent or
is merged with or into or consolidated with the Parent or any Restricted Subsidiary thereof; provided that such Liens were in existence
prior to the contemplation of such Person becoming a Restricted Subsidiary of the Parent or such merger or consolidation and do not extend
to any assets other than those of the Person that becomes a Restricted Subsidiary of the Parent or is merged with or into or consolidated
with the Parent or any Restricted Subsidiary of the Parent (and assets and property affixed or appurtenant thereto);
(4) Liens
on property (including Capital Stock) existing at the time of acquisition of such property by the Parent or any Subsidiary thereof; provided
that such Liens were in existence prior to such acquisition and not incurred in contemplation of, such acquisition;
(5) Liens
incurred or deposits made to secure the performance of tenders, insurance, workers compensation obligations, unemployment insurance
and other types of social security legislation, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds or other obligations of a
like nature incurred in the ordinary course of business (including Liens to secure letters of credit issued to assure payment of such
obligations and Liens to secure pledges or deposits with respect to such obligations) or arising by virtue of deposits made in the ordinary
course of business to secure liability for premiums to insurance carriers;
(6) Liens
to secure Indebtedness (including Capital Lease Obligations) permitted by Sections 4.09(b)(4) and 4.09(b)(24) hereof covering only
the assets acquired with or financed by such Indebtedness and proceeds and products thereof;
(7) Liens
to secure Indebtedness of Restricted Subsidiaries that are not Guarantors or the Company permitted under Section 4.09 hereof; provided
that such Liens may not extend to any property or assets of the Company or any Guarantor other than the Capital Stock of such non-Guarantor
Restricted Subsidiaries;
(8) Liens
on the Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary that secure Indebtedness or other obligations
of such Unrestricted Subsidiary;
(9) Liens
existing on the date of this Indenture (and replacement Liens that do not encumber additional assets, unless such encumbrance is otherwise
permitted by this Indenture), other than Liens securing Indebtedness and other obligations incurred under Credit Facilities pursuant to
clause (1) or clause (19) of the definition of “Permitted Debt”;
(10) Liens
for taxes, assessments or governmental charges or claims that are not yet delinquent for more than 60 days or that are being contested
in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;
(11) Liens
imposed by law, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’,
repairmen’s and mechanics’ Liens and other similar Liens, in each case, incurred in the ordinary course of business;
(12) survey
exceptions, ground leases, easements, servitudes, covenants, protrusions, or reservations of, or rights of others for, licenses, rights-of-way,
encroachments, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions
(including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the ownership of its properties that were not incurred in connection with
Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use
in the operation of the business of such Person;
(13) Liens
created for the benefit of (or to secure) the Notes or the Note Guarantees;
(14) Liens
to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided, however, that:
(a) the
new Lien is limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the
original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof);
and
(b) the
Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount,
or, if greater, committed amount, of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged with such Permitted
Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;
(15) Liens
on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings;
(16) any
interest or title of a lessor, licensor, sublicensor or sublessor under any lease, license, sublicense or sublease entered into by the
Parent or any of its Restricted Subsidiaries in the ordinary course of business and covering only the assets so leased, licensed, sublicensed
or subleased, including the filing of Uniform Commercial Code financing statements as a precautionary measure in connection with operating
leases;
(17) bankers’
Liens, rights of setoff, Liens arising out of judgments, decrees, orders or awards not constituting an Event of Default and notices of
lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which
adequate reserves have been made;
(18) Liens
on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(19) Liens
on specific items of inventory or other goods (and the proceeds thereof) of any Person securing such Person’s obligations in respect
of bankers’ acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods;
(20) grants
of software and other technology licenses in the ordinary course of business;
(21) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary
course of business;
(22) Liens
in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary
course of business and other similar Liens arising in the ordinary course of business;
(23) Liens
in favor of the Company or any of the Guarantors;
(24) assignments
of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease and Liens or rights
reserved in any lease for rent or for compliance with the terms of such lease;
(25) Liens
(i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on the items in the course of collection,
(ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business
and not for speculative purposes, and (iii) in favor of a banking or other financial institution arising as a matter of law encumbering
deposits or other funds maintained with a financial institution (including the right of setoff) and that are within the general parameters
customary in the banking industry;
(26) Liens
on the Equity Interests in joint ventures held by the Parent or its Restricted Subsidiaries securing the obligations of such joint ventures;
(27) options,
put and call arrangements, rights of first refusal and similar rights to Investments in joint ventures, partnerships or other similar
Permitted Investments;
(28) Liens
(i) in connection with cash earnest money deposits made by the Parent or any of its Restricted Subsidiaries in connection with any
acquisition of assets or (ii) consisting of an agreement to consummate an asset sale permitted to be made by the terms of this Indenture;
(29) restrictions
resulting from any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the
use of any real property, in each case, which do not and will not interfere with or affect in any material respect the use, value or operations
of any real estate asset of the Parent or any of its Restricted Subsidiaries or the ordinary conduct of the business of the Parent or
any of its Restricted Subsidiaries;
(30) Liens
incurred in the ordinary course of business of the Parent or any Restricted Subsidiary thereof with respect to obligations that do not
exceed the greater of $150.0 million and 2.50% of Consolidated Total Assets at any time outstanding;
(31) Liens
encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Parent
or any of its Restricted Subsidiaries, including rights of offset and set-off;
(32) Liens
securing Acquired Indebtedness incurred in accordance with Section 4.09; provided that (A) such Liens secured the Acquired
Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Parent or a Restricted Subsidiary and were
not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by the Parent or a Restricted Subsidiary
and (B) such Liens do not extend to or cover any property or assets of the Parent or of any of the Restricted Subsidiaries other
than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of
the Parent or a Restricted Subsidiary;
(33) leases,
subleases, non-exclusive licenses or non-exclusive sublicenses granted to other Persons (including with respect to intellectual property)
by the Parent or any of its Restricted Subsidiaries in the ordinary course of business and not interfering in any material respect with
the ordinary conduct of the business of the Parent and its Restricted Subsidiaries taken as a whole; and
(34) Liens
on accounts receivable and related assets and proceeds thereof arising in connection with a Permitted Receivables Financing.
“Permitted Receivables
Financing” means any receivables financing facility or arrangement pursuant to which a Securitization Subsidiary purchases or
otherwise acquires accounts receivable of the Parent or any Restricted Subsidiary and enters into a third party financing thereof on terms
that the Board of Directors of the the Parent has concluded are customary and market terms that are fair to the Parent and the Restricted
Subsidiaries.
“Permitted Refinancing
Indebtedness” means any Indebtedness of the Parent or any of its Restricted Subsidiaries, Disqualified Stock of the Parent,
or preferred stock of any of the Parent’s Restricted Subsidiaries, in each case issued in exchange for, or the net proceeds of which
are used to renew, refund, refinance, replace, extend, defease or discharge other Indebtedness of the Parent or any of its Restricted
Subsidiaries, Disqualified Stock of the Parent, or preferred stock of any of the Parent’s Restricted Subsidiaries (in each case
other than intercompany Indebtedness, Disqualified Stock or preferred stock); provided that:
(1) the
principal amount (or accreted value or liquidation preference, if applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount (or accreted value or liquidation preference, if applicable) of the Indebtedness, Disqualified Stock or preferred
stock renewed, refunded, refinanced, replaced, extended, defeased or discharged (plus all accrued interest on the Indebtedness and the
amount of all fees and expenses, including premiums and defeasance costs, incurred in connection therewith);
(2) such
Permitted Refinancing Indebtedness has a final maturity date no earlier than the later of (a) the final maturity date of the Indebtedness
being renewed, refunded, refinanced, replaced, extended, defeased or discharged or (b) 91 days after the final maturity date of the
Notes;
(3) such
Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Permitted Refinancing Indebtedness is incurred
that is no shorter than the Weighted Average Life to Maturity of the portion of the Indebtedness being renewed, refunded, refinanced,
replaced, extended, defeased or discharged;
(4) if
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes on terms at least as favorable to the Holders
of Notes taken as a whole, as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced,
extended, defeased or discharged; and
(5) such
Indebtedness is incurred either by the Parent, the Company or a Subsidiary Guarantor or by the Restricted Subsidiary of the Parent that
was the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged and is guaranteed only by Persons
who were obligors on the Indebtedness being renewed, refunded, refinanced, replaced, extended, defeased or discharged.
For the avoidance of doubt,
it is understood that such Indebtedness, Disqualified Stock or preferred stock incurred in connection with such renewal, refunding, refinancing,
extension, replacement, defeasance or discharge may constitute an issuance of Indebtedness, Disqualified Stock or preferred stock in excess
of the amount permitted under this definition of “Permitted Refinancing Indebtedness” to the extent that such excess amount
is otherwise permitted under Section 4.09 hereof.
“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
“Private Placement
Legend” means the legend set forth in Section 2.06(g)(1) hereof to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
“QIB” means
a “qualified institutional buyer” as defined in Rule 144A.
“Qualifying Equity
Interests” means Equity Interests of the Parent other than Disqualified Stock.
“Rating Agencies”
means S&P and Moody’s; provided that if either Moody’s or S&P (or both) shall cease issuing a rating on the
Notes for reasons outside the control of the Parent, then the Parent may select a nationally recognized statistical rating agency to substitute
for Moody’s or S&P (or both).
“Receivables Fees”
means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest
therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any
Permitted Receivables Financing.
“Regulated Bank”
means a commercial bank with a consolidated combined capital surplus of at least $5,000,000,000 that is (i) a U.S. depository institution
the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of
the U.S. Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to
approval by and under the supervision of the Board of Governors of the Federal Reserve System of the U.S. under 12 CFR part 211; (iv) a
non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S.
depository institution or any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.
“Regulation S”
means Regulation S promulgated under the Securities Act.
“Regulation S Global
Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.
“Responsible Officer,”
when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group
of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.
“Restricted Definitive
Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global
Note” means a Global Note bearing the Private Placement Legend.
“Restricted Investment”
means an Investment other than a Permitted Investment.
“Restricted Period”
means the period from the date the Notes were first offered through and including the 40th day after the later of the commencement of
such offering and the Issue Date.
“Restricted Subsidiary”
of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. Unless the context otherwise requires,
references to a “Restricted Subsidiary” refer to Restricted Subsidiaries of the Parent (including the Company).
“Rule 144”
means Rule 144 promulgated under the Securities Act.
“Rule 144A”
means Rule 144A promulgated under the Securities Act.
“Rule 903”
means Rule 903 promulgated under the Securities Act.
“Rule 904”
means Rule 904 promulgated under the Securities Act.
“S&P”
means S&P Global Ratings, a division of S&P Global Inc.
“Screened Affiliate”
means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such
Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any
other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to the
Parent or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder
that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are
not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holder
in connection with its investment in the Notes.
“SEC” means
the Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Securitization Subsidiary”
means any Subsidiary of the Parent:
(1) that
is designated a “Securitization Subsidiary” by the Board of Directors of the Parent;
(2) that
does not engage in, and whose charter, bylaws, operating agreement or similar governing or constitutional document prohibits it from engaging
in, any activities other than Permitted Receivables Financings and any activity necessary, incidental or related thereto;
(3) no
portion of the Indebtedness or any other obligations (contingent or otherwise) of such entity (i) is Guaranteed by the Parent or
any Restricted Subsidiary, (ii) is recourse to or obligates the Parent or any Restricted Subsidiary in any way or (iii) subjects
any property or asset of the Parent or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction
thereof; and
(4) with
respect to which none of the Parent nor any Restricted Subsidiary has any obligation to maintain or preserve its financial condition or
cause it to achieve certain levels of operating results;
other than, in respect of
clauses (3) and (4), pursuant to customary representations, warranties, covenants and indemnities entered into in connection with
a Permitted Receivables Financing.
“Short
Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment
or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value
of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the
Performance References.
“Significant Subsidiary”
means any Restricted Subsidiary (including the Company) that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.
For purposes Section 6.01, the term “Significant Subsidiary” shall also include any group of Restricted Subsidiaries
that together would constitute a Significant Subsidiary.
“Stated Maturity”
means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest
or principal was scheduled to be paid in the documentation governing such Indebtedness as of the first date it was incurred in compliance
with the terms of this Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof; provided that, in the case of debt securities that are
by their terms convertible into Capital Stock (or cash or a combination of cash and Capital Stock based on the value of the Capital Stock)
of the Parent, any obligation to offer to repurchase such debt securities on a date(s) specified in the original terms of such securities,
which obligation is not subject to any condition or contingency, will be treated as a Stated Maturity date of such convertible debt securities.
“Subsidiary”
means, with respect to any specified Person:
(1) any
corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); or
(2) any
partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special
or limited partnership interests or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner
or otherwise controls such entity.
“Subsidiary Guarantors”
means, each Restricted Subsidiary of the Company, if any, that guarantees the Notes in accordance with the terms of this Indenture; provided
that upon release or discharge of such Restricted Subsidiary from its Note Guarantee in accordance with this Indenture, such Restricted
Subsidiary ceases to be a Subsidiary Guarantor.
“Texas Pawnshop Act”
means Section 371.072 of the Texas Finance Code, as amended.
“TIA” means
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Treasury Management
Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including
deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
“Treasury Rate”
means, as of any redemption date, the yield to maturity as of the earlier of (a) such redemption date or (b) the date on which
such Notes are defeased or satisfied and discharged, of the most recently issued United States Treasury securities with a constant maturity
(as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least
two business days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar
market data)) most nearly equal to the period from the redemption date to March 1, 2027; provided, however, that if the period
from the redemption date to March 1, 2027, is less than one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used. Any such Treasury Rate shall be obtained by the Parent.
“Trustee”
means BOKF, NA, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.
“Unrestricted Definitive
Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Global
Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.
“Unrestricted Subsidiary”
means any Subsidiary of the Parent that is designated by the Board of Directors of the Parent as an Unrestricted Subsidiary pursuant to
a resolution of the Board of Directors, but only to the extent that such Subsidiary:
(1) has
no Indebtedness other than Non-Recourse Debt and other obligations arising by operation of law, including joint and several liability
for taxes, ERISA obligations and similar items;
(2) except
as permitted by Section 4.11, is not party to any agreement, contract, arrangement or understanding with the Parent or any Restricted
Subsidiary thereof unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Parent
or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent; and
(3) is
a Person with respect to which neither the Parent nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results.
Notwithstanding the foregoing,
at no time may the Company be an Unrestricted Subsidiary.
“U.S. Person”
means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
“Voting Stock”
of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of
the Board of Directors of such Person.
“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the
sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(2) the
then outstanding principal amount of such Indebtedness.
Section 1.02. Other
Definitions.
Term | |
Defined in Section | |
“Affiliate Transaction” | |
| 4.11 | |
“Asset Sale Offer” | |
| 3.09 | |
“Authentication Order” | |
| 2.02 | |
“Change of Control Offer” | |
| 4.15 | |
“Change of Control Payment” | |
| 4.15 | |
“Change of Control Payment Date” | |
| 4.15 | |
“Covenant Defeasance” | |
| 8.03 | |
“DTC” | |
| 2.03 | |
“Deemed Date” | |
| 4.09 | |
“Directing Holder” | |
| 6.02 | |
“Election Date” | |
| 4.07 | |
“Event of Default” | |
| 6.01 | |
“Excess Proceeds” | |
| 4.10 | |
“incur” | |
| 4.09 | |
“Increased Amount” | |
| 4.12 | |
“Legal Defeasance” | |
| 8.02 | |
“Noteholder Direction” | |
| 6.02 | |
“Offer Amount” | |
| 3.09 | |
“Offer Period” | |
| 3.09 | |
“Paying Agent” | |
| 2.03 | |
“Payment Default” | |
| 6.01 | |
“Permitted Debt” | |
| 4.09 | |
“Performance References” | |
| 1.01 | |
“Position Representation” | |
| 6.02 | |
“Purchase Date” | |
| 3.09 | |
“Registrar” | |
| 2.03 | |
“Restricted Payments” | |
| 4.07 | |
“Reversion Date” | |
| 4.20 | (c) |
“Suspended Covenants” | |
| 4.20 | (a) |
“Suspension Period” | |
| 4.20 | (b) |
“Verification Covenant” | |
| 6.02 | |
Section 1.03. Trust
Indenture Act.
This
Indenture is not qualified under the TIA, and the TIA shall not apply to or in any way govern the terms of this Indenture, including §316(b) thereof.
No provisions of the TIA are incorporated into this Indenture.
Section 1.04. Rules of
Construction.
Unless the context otherwise
requires:
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or”
is not exclusive;
(4) “including”
is not limiting;
(5) words
in the singular include the plural, and in the plural include the singular;
(6) “will”
shall be interpreted to express a command;
(7) provisions
apply to successive events and transactions; and
(8) references
to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time.
Article 2
THE NOTES
Section 2.01. Form and
Dating.
(a) General.
The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its
authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions contained
in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the
extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern
and be controlling.
(b) Global
Notes. Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon
and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will be
substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges
of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon
and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate,
to reflect exchanges, redemptions and repurchases. Any endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the direction
of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) Euroclear
and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms
and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer
Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by
Participants through Euroclear or Clearstream.
Section 2.02. Execution
and Authentication.
At least one Officer must
sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature
is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until
authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under
this Indenture.
The Trustee will, upon receipt
of a written order of the Company signed by an Officer (an “Authentication Order”), authenticate Notes for original
issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding
at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication
Orders, except as provided in Section 2.07 hereof.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
Section 2.03. Registrar
and Paying Agent.
The Company will maintain
an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an
office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a register of the
Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents.
The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or
Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints
The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.
The Company initially appoints
the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying
Agent to Hold Money in Trust.
The Company will require each
Paying Agent other than the entity acting as Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest, if any, on, the Notes,
and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have no
further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund
for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee will serve as Paying Agent for the Notes.
Section 2.05. Holder
Lists.
The Trustee will preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the
entity acting as Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes.
Section 2.06. Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes
if:
(1) the
Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it
is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary;
(2) the
Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee or
(3) there
has occurred and is continuing a Default or Event of Default with respect to the Notes.
Upon the occurrence of either
of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06
or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive
Notes issued subsequent to any of the events described in clauses (1), (2) or (3) above, or Section 2.06(c) or (e) hereof.
A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests
in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c) hereof.
(b) Transfer
and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will
be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required
by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or
(2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(1) Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions
set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers
of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).
(2) All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar
either:
(A) both:
(i) a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest
to be transferred or exchanged; and
(ii) instructions
given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase;
or
(B) both:
(i) a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered
to effect the transfer or exchange referred to in (1) above.
Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer
of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:
(A) if
the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if
the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if
the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable.
(4) Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial
interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note
or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange
or transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:
(A) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item
(1)(a) thereof; or
(B) if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof
and, in each such case set forth in this
Section 2.06(b)(4), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
If any such transfer is effected
pursuant to this Section 2.06(b)(4) at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to
this Section 2.06(b)(4).
Beneficial interests in an
Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest
in a Restricted Global Note.
(c) Transfer
or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if
such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if
such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904,
a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if
such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(E) if
such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;
(F) if
such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(G) if
such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute
and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall
be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note
may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(A) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(B) if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this
Section 2.06(c)(2), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
(3) Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof,
the Trustee will cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company will execute and the Trustee will authenticate and deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(3) will be registered in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant
or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear the Private Placement
Legend.
(d) Transfer
and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following
documentation:
(A) if
the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if
such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if
such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if
such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if
such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;
(F) if
such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if
such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive
Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted
Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation S Global
Note, and in all other cases, the IAI Global Note.
(2) Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(A) if
the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(B) if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this
Section 2.06(d)(2), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
Upon
satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2),
the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted
Global Note.
(3) Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer,
the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer
from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2) or (3) above at a time when an Unrestricted
Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount
of Definitive Notes so transferred.
(e) Transfer
and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance
with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed
or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of this Section 2.06(e).
(1) Restricted
Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A) if
the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if
the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.
(2) Restricted
Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted
Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the
Registrar receives the following:
(A) if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(B) if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this
Section 2.06(e)(2), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Unrestricted
Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) [Reserved]
(g) Legends.
The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(1) Private
Placement Legend.
(A) Except
as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:
“THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION,
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT
AS SET FORTH BELOW. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE
(1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT),
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT OR (C) IT IS AN “INSTITUTIONAL” ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
REGULATION D PROMULGATED UNDER THE SECURITIES ACT (AN “ACCREDITED INVESTOR”) AND (2) AGREES THAT IT WILL NOT WITHIN [ONE
YEAR—FOR NOTES ISSUED PURSUANT TO RULE 144A][40 DAYS—FOR NOTES ISSUED IN OFFSHORE TRANSACTIONS PURSUANT TO REGULATION S] AFTER
THE LATER OF THE DATE OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE DATE ON WHICH THE COMPANY OR ANY OF ITS RESPECTIVE AFFILIATES OWNED
THIS NOTE, OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) (I) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (II) FOR
SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT INSIDE THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (III) INSIDE
THE UNITED STATES TO AN ACCREDITED INVESTOR THAT IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR THE OFFER OR SALE
IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, AND THAT PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (IV) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT (IF AVAILABLE), (V) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (VI) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), OR (VII) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS NOTE FURTHER AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE PURSUANT TO SUBCLAUSES (III) TO (VI) OF CLAUSE (A) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON”
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2) or
(e)(3) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement
Legend.
(2) Global
Note Legend. Each Global Note will bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF FIRSTCASH, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(3) ERISA
Legend. Each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
“BY ITS ACQUISITION OF THIS NOTE, THE HOLDER
THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (A) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE
AND/OR HOLD THIS NOTE OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF (I) ANY EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (II) PLAN, INDIVIDUAL RETIREMENT ACCOUNT
OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR
PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR
THE CODE (“SIMILAR LAWS”), OR (III) ENTITY THE UNDERLYING ASSETS OF WHICH ARE CONSIDERED TO INCLUDE “PLAN ASSETS”
OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (B) THE ACQUISITION AND/OR HOLDING OF THIS NOTE OR ANY INTEREST HEREIN BY SUCH HOLDER
WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.”
(h) Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive
Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned
to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial
interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will
be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) General
Provisions Relating to Transfers and Exchanges.
(1) To
permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.
(2) No
service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The
Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(4) All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither
the Registrar nor the Company will be required:
(A) to
issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day
of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;
(B) to
register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part; or
(C) to
register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.
(6) Prior
to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest
on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(7) The
Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.
(8) All
certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect
a registration of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement
Notes.
If any mutilated Note is surrendered
to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the
Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s
requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is
an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately with
all other Notes duly issued hereunder.
Section 2.08. Outstanding
Notes.
The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions
in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding
for purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant
to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a protected purchaser.
If the principal amount of
any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other
than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease to accrue interest.
Section 2.09. Treasury
Notes.
In determining whether the
Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any
Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether the Trustee will be
protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded.
Section 2.10. Temporary
Notes.
Until certificates representing
Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary
Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate
for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes
will be entitled to all of the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may
deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all canceled Notes will be delivered to the Company. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted
Interest.
If the Company defaults in
a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable
on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the
Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest proposed to
be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and
payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the
name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
Section 2.13. Issuance
of Additional Notes.
After the Issue Date, the
Company will be entitled, subject to its compliance with Section 2.02 and Section 4.09, to issue Additional Notes under this
Indenture, which Notes will have the same terms (other than price, date of issuance and the date from which interest will accrue) as the
Initial Notes. All the Notes under this Indenture will be treated as a single class for all purposes of this Indenture, including, without
limitation, waivers, amendments, redemptions and offers to purchase; provided that, if the Additional Notes are not fungible with
the Initial Notes for United States federal income tax purposes, the Additional Notes will have a separate CUSIP number.
Article 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices
to Trustee.
If the Company elects to redeem
Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 10 days but
not more than 60 days before a redemption date, an Officers’ Certificate setting forth:
(1) the
clause of this Indenture pursuant to which the redemption shall occur;
(2) the
redemption date;
(3) the
principal amount of Notes to be redeemed; and
(4) the
redemption price.
Section 3.02. Selection
of Notes to Be Redeemed or Purchased.
If less than all of the Notes
are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select Notes for redemption or purchase on a pro
rata basis (or, in the case of Notes issued in global form pursuant to Article 2 hereof, based on a method that most nearly approximates
a pro rata selection (including by lot or such other method) as the Trustee deems fair and appropriate) unless otherwise required
by law or applicable stock exchange or depositary requirements.
In the event of partial redemption
or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than
10 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for
redemption or purchase.
The Trustee will promptly
notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption
or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in amounts of $2,000
or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire
outstanding amount of Notes held by such Holder shall be redeemed or purchased. Except as provided in the preceding sentence, provisions
of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03. Notice
of Redemption.
Subject to the provisions
of Section 3.09 hereof, at least 10 days but not more than 60 days before a redemption date, the Company will mail or cause to be
mailed, by first class mail (or otherwise cause to be transmitted in accordance with the Applicable Procedures), a notice of redemption
to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this
Indenture pursuant to Articles 8 or 11 hereof.
The notice will identify the
Notes to be redeemed and will state:
(1) the
redemption date;
(2) the
redemption price;
(3) if
any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation
of the original Note;
(4) the
name and address of the Paying Agent;
(5) that
Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that,
unless the Company defaults in making such redemption payment and, subject to satisfaction of the conditions specified therein, if any,
interest on Notes called for redemption ceases to accrue on and after the redemption date;
(7) any
conditions to such redemption;
(8) the
paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and
(9) that
no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company’s request,
the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company
has delivered to the Trustee, at least 10 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 preceding paragraph.
Section 3.04. Effect
of Notice of Redemption.
Once notice of redemption
is mailed in accordance with Section 3.03 hereof and, subject to satisfaction of the conditions specified therein, if any, Notes
called for redemption become irrevocably due and payable on the redemption date at the redemption price.
Notice of any redemption of
the Notes may, at the Company’s discretion, be given prior to the completion of a transaction (including an Equity Offering, an
incurrence of Indebtedness, a Change of Control or other transaction) and any redemption notice may, at the Company’s discretion,
be subject to one or more conditions precedent, including, but not limited to, completion of a related transaction. If such redemption
or purchase is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if
applicable, shall state that, in the Company’s discretion, the redemption date may be delayed until such time (including more than
60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions
shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions
shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions
shall not have been satisfied by the redemption date, or by the redemption date as so delayed. In addition, the Company may provide in
such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may
be performed by another Person.
Section 3.05. Deposit
of Redemption or Purchase Price.
One Business Day prior to
the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption
or purchase price of, accrued interest, if any, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent
will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary
to pay the redemption or purchase price of, accrued interest, if any, on all Notes to be redeemed or purchased.
If the Company complies with
the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on the Notes or
the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on
or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note
was registered at the close of business on such record date, and no additional interest will be payable to Holders whose Note will be
subject to redemption by the Company. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase
because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal,
in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes
Redeemed or Purchased in Part.
Upon surrender of a Note that
is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will authenticate for
the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07. Optional
Redemption.
(a) Except
pursuant to the following paragraphs, the Notes will not be redeemable at the Company’s option prior to March 1, 2027.
(b) At
any time prior to March 1, 2027, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount
of Notes issued under this Indenture, upon not less than 10 nor more than 60 days’ notice, at a redemption price equal to 106.875%
of the principal amount of the Notes redeemed, plus accrued and unpaid interest to, but not including, the date of redemption (subject
to the rights of Holders of Notes on the relevant record date to receive interest on the relevant interest payment date), in an amount
not to exceed the net proceeds from an Equity Offering; provided that:
(1) at
least 60% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by the Parent and its
Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and
(2) in
each case, the redemption occurs within 90 days after the closing of such Equity Offering.
(c) At
any time prior to March 1, 2027, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than
10 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable
Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant interest payment date.
(d) The
Notes may be redeemed pursuant to Section 4.15(e) hereof.
(e) On
or after March 1, 2027, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor
more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month
period beginning on March 1 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to
receive interest on the relevant interest payment date:
Year | | |
Percentage | |
2027 | | |
103.438 | % |
2028 | | |
101.719 | % |
2029 and thereafter | | |
100.000 | % |
Unless the Company defaults
in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable
redemption date.
(f) Any
redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
(g) Notwithstanding
the foregoing, in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Sale Offer, if Holders
of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender
offer, the Company, or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and
not withdrawn by such holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’
prior notice, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to
each Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment,
accrued and unpaid interest, if any, thereon, to, but excluding, the date of such redemption.
Section 3.08. Mandatory
Redemption.
Except as set forth below
under Section 3.10, the Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
However, under certain circumstances, the Company may be required to offer to purchase Notes (as described under Section 3.09, 4.10
and 4.15 hereof). The Company may at any time and from time to time purchase outstanding debt securities or loans, including the Notes,
in privately negotiated or open market transactions, by tender offer or otherwise.
Section 3.09. Offer
to Purchase by Application of Excess Proceeds.
In the event that, pursuant
to Section 4.10(d) hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset
Sale Offer”), it will follow the procedures specified in Section 4.10(d) and (e) and the additional procedures
specified below.
The Asset Sale Offer will
remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent
that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the
termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer
Amount”) pursuant to Section 4.10(d).
If the Purchase Date is on
or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the
Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an
Asset Sale Offer, the Company will send, by first class mail (or otherwise cause to be transmitted in accordance with the Applicable Procedures),
a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer,
will state:
(1) that
the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer will remain open;
(2) the
Offer Amount, the purchase price and the Purchase Date;
(3) that
any Note not tendered or accepted for payment will continue to accrue interest;
(4) that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue
interest after the Purchase Date;
(5) that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000
or an integral multiple of $1,000 in excess thereof;
(6) that
Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company,
a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase
Date;
(7) that
Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have
such Note purchased;
(8) that,
if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount,
the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company
so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased); and
(9) that
Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer).
On or before the Purchase
Date, the Company will, to the extent lawful, accept Notes for payment pursuant to Section 4.10(d), and will deliver or cause to
be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver
to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase,
and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or
deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically
provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections
3.01 through 3.06 hereof.
Article 4
COVENANTS
Section 4.01. Payment
of Notes.
The Company will pay or cause
to be paid the principal of, premium on, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal,
premium, if any, and interest will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 12:00 p.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest, if any, then due. If an interest payment date, redemption date,
the maturity date or any other date for any payment in respect of the Notes falls on a day that is not a Business Day, the related payment
of principal or interest will be made on the next succeeding Business Day as if made on the date the payment was due, and no interest
shall accrue for the intervening period.
The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at a rate that is 1% higher than the
then applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period), at the same rate
to the extent lawful.
Section 4.02. Maintenance
of Office or Agency.
The Company will maintain
in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to
or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required
office or agency or fails 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.
The Company may also from
time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner
relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, 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 of any change in the location of
any such other office or agency.
The Company hereby designates
the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03. Reports.
(a) Whether
or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Parent will furnish to the Holders
of Notes or cause the Trustee to furnish to the Holders of Notes (or file with the SEC for public availability), no later than thirty
days after the expiration of the time periods specified in the SEC’s rules and regulations:
(1) all
quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Parent were required to file
such reports, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and,
with respect to the annual information only, a report thereon by the Parent’s certified independent accountants; and
(2) all
current reports that would be required to be filed with the SEC on Form 8-K if the Parent were required to file such reports.
All such reports will be prepared
in all material respects in accordance with all of the rules and regulations applicable to such reports. In addition, the Parent
will file a copy of each of the reports referred to in clauses (1) and (2) above with the SEC for public availability within
the time periods specified above (unless the SEC will not accept such a filing) and will post the reports on its website within those
time periods.
If, at any time, the Parent
is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Parent will nevertheless continue
filing the reports specified in the preceding paragraphs of this Section 4.03 with the SEC within the time periods specified above
unless the SEC will not accept such a filing. The Parent will not take any action for the purpose of causing the SEC not to accept any
such filings. If, notwithstanding the foregoing, the SEC will not accept the Parent’s filings for any reason, the Parent will post
the reports referred to in the preceding paragraphs on its website within the time periods specified in this Section 4.03.
(b) If
the Parent has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required
by paragraph (a) of this Section 4.03 will include a reasonably detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the
financial condition and results of operations of the Parent and its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Parent.
(c) For
so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports required by paragraphs
(a) and (b) of this Section 4.03, the Company and the Guarantors will furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(d) Notwithstanding
the foregoing, the Parent shall be deemed to have furnished the reports required by paragraphs (a) and (b) of this Section 4.03
to the Trustee and the Holders on the date the Parent files such reports with the SEC via the EDGAR filing system (or any successor thereto)
and such reports become publicly available.
Section 4.04. Compliance
Certificate.
(a) The
Company and each Guarantor shall 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 Parent and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments
on account of the principal of, premium on, if any, or interest on the Notes is prohibited or if such event has occurred, a description
of the event and what action the Company is taking or proposes to take with respect thereto.
(b) So
long as any of the Notes are outstanding, the Company will deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking
or proposes to take with respect thereto.
Section 4.05. Taxes.
The Parent and the Company
will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in
any material respect to the Holders of the Notes.
Section 4.06. Stay,
Extension and Usury Laws.
The Company and each of the
Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that
may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (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, by resort to any such law, 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 has been enacted.
Section 4.07. Restricted
Payments.
(a) The
Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare
or pay any dividend or make any other payment or distribution on account of the Parent’s or any of its Restricted Subsidiaries’
Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Parent or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the Parent’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Parent and other than dividends or distributions payable to the Parent or a Restricted Subsidiary thereof);
(2) purchase,
redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving
the Parent) any Equity Interests of the Parent or any direct or indirect parent of the Parent;
(3) make
any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company
or any Guarantor that is contractually subordinated in right of payment to the Notes or to any Note Guarantee (excluding any intercompany
Indebtedness between or among the Parent and any of its Restricted Subsidiaries), except a payment of interest or a payment of principal
at the Stated Maturity thereof; or
(4) make
any Restricted Investment
(all such payments and other actions set forth
in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”), unless,
at the time of and after giving effect to such Restricted Payment:
(i) no
Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;
(ii) the
Parent would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(iii) such
Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent and its Restricted Subsidiaries
since the 2028 Notes Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (11),
(12) and (13) of paragraph (b) of this Section 4.07), is less than the sum, without duplication, of:
(A) 50%
of the Consolidated Net Income of the Parent for the period (taken as one accounting period) commencing October 1, 2020 to the end
of the Parent’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
(B) 100%
of the aggregate net cash proceeds received by the Parent since the 2028 Notes Issue Date as a contribution to its common equity capital
or from the issue or sale of Qualifying Equity Interests of the Parent or from the issue or sale of convertible or exchangeable Disqualified
Stock of the Parent or convertible or exchangeable debt securities of the Parent, in each case that have been converted into or exchanged
for such Qualifying Equity Interests of the Parent (other than Qualifying Equity Interests and convertible or exchangeable Disqualified
Stock or debt securities sold to a Subsidiary of the Parent); plus
(C) to
the extent that any Restricted Investment that was made after the 2028 Notes Issue Date is (a) sold for cash or otherwise cancelled,
liquidated or repaid for cash, or (b) made in an entity that subsequently becomes a Restricted Subsidiary of the Parent, the Fair
Market Value of such Restricted Investment as of the date such entity becomes a Restricted Subsidiary (or, if less, the amount of cash
received upon repayment or sale); plus
(D) to
the extent that any Unrestricted Subsidiary of the Parent designated as such after the 2028 Notes Issue Date is redesignated as a Restricted
Subsidiary after the 2028 Notes Issue Date, the Fair Market Value of the Parent’s Restricted Investment in such Subsidiary as of
the date of such redesignation, after deducting any Indebtedness associated with the Unrestricted Subsidiary so designated; plus
(E) 100%
of any dividends received in cash by the Parent or a Restricted Subsidiary thereof that is a Guarantor after the 2028 Notes Issue Date
from an Unrestricted Subsidiary of the Parent to the extent that such dividends were not otherwise included in the Consolidated Net Income
of the Parent for such period; plus
(F) $100.0
million.
(b) The
provisions of Section 4.07(a) hereof will not prohibit:
(1) the
payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend
or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would
have complied with the provisions of this Indenture;
(2) the
making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Parent) of, Equity Interests of the Parent (other than Disqualified Stock) or from the substantially concurrent
contribution of common equity capital to the Parent; provided that the amount of any such net cash proceeds that are utilized for
any such Restricted Payment will not be considered to be net proceeds of Qualifying Equity Interests for purposes of Section 4.07(a)(iii)(B) and
will not be considered to be net cash proceeds from an Equity Offering for purposes of Section 3.07 of this Indenture;
(3) the
payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary
of the Parent to the holders of its Equity Interests on a pro rata basis or on a basis more favorable to the Parent;
(4) the
repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or to any Note Guarantee with the net cash proceeds from a substantially concurrent incurrence
of Permitted Refinancing Indebtedness;
(5) the
repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Parent or any Restricted Subsidiary
thereof held by any future, current or former officer, director, employee or consultant of the Parent or any of its Restricted Subsidiaries
pursuant to any employment agreement, equity subscription agreement, stock option agreement, shareholders’ agreement or similar
agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may
not exceed $10.0 million in any fiscal year (with unused amounts in any year carried over to future years) plus the amount of cash proceeds
from any key man life insurance received in such fiscal year; provided that such amount may be increased by an amount not to exceed
the cash proceeds from the sale of Equity Interests of the Parent to current or former members of management, directors, managers or consultants
of the Parent or any of its Subsidiaries that occurs after the date of this Indenture, to the extent the cash proceeds from the sale of
such Equity Interests have not otherwise been applied to the making of Restricted Payments by virtue of Section 4.07(a)(iii)(B);
(6) the
repurchase of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities
to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible or
exchangeable securities, the withholding of a portion of Equity Interests granted or awarded to a current or former officer, director,
employee or consultant to pay for the taxes payable by such person upon such grant or award (or vesting thereof) or the cancellation of
stock options, warrants or other Equity Interest awards;
(7) the
declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Parent
or any preferred stock of any Restricted Subsidiary issued on or after the date of this Indenture in accordance with the Fixed Charge
Coverage Ratio test described in Section 4.09(a) hereof;
(8) payments
of cash, dividends, distributions, advances or other Restricted Payments by the Parent or any of its Restricted Subsidiaries to allow
the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of options or warrants or (ii) the conversion
or exchange of Capital Stock of any such Person;
(9) the
repurchase or other acquisition for value of Capital Stock of the Company with the net proceeds received by the Company from the offering
of the 2028 Notes originally issued as described in the offering memorandum for the 2028 Notes; provided that the aggregate price
paid for all such repurchases or other acquisitions of Capital Stock may not exceed the greater of (a) 5.00% of Consolidated
Total Assets and (b) $250.0 million in the aggregate;
(10) (i) other
Restricted Payments in an aggregate amount not to exceed $150.0 million since the 2030 Notes Issue Date; and (ii) other Restricted
Payments so long as, after giving pro forma effect to the payment of any such Restricted Payment, the Consolidated Total Debt Ratio
shall be less than 3.00 to 1.00;
(11) the
repurchase, redemption or other acquisition or retirement for value of any subordinated Indebtedness pursuant to provisions similar to
those described in Sections 4.10 or 4.15 hereof; provided that all Notes tendered by Holders in connection with a Change of Control
Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value;
(12) distributions
or payments of Receivables Fees; and
(13) the
declaration and payment of regularly scheduled or accrued dividends to holders of the common stock of the Parent on or after the 2030
Notes Issue Date in an aggregate amount not to exceed the greater of (a) 2.50% of Consolidated Total Assets and (b) $125.0 million
in any fiscal year.
(c) The
amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Parent or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. For purposes of this Section 4.07, if a particular Restricted Payment involves a non-cash payment, including a distribution
of assets, then such Restricted Payment shall be deemed to be an amount equal to the cash portion of such Restricted Payment, if any,
plus an amount equal to the Fair Market Value of the non-cash portion of such Restricted Payment.
(d) For
the purposes of determining compliance with this Section 4.07, (i) a Restricted Payment or Permitted Investment need not be
permitted solely by reference to one category of permitted Restricted Payments (or any portion thereof) or Permitted Investments (or any
portion thereof) described in the above clauses or the definitions thereof but may be permitted in part under any combination thereof
and (ii) in the event that a Restricted Payment (or any portion thereof) or Permitted Investment (or any portion thereof) meets the
criteria of more than one of the types of Restricted Payments or (or any portion thereof) Permitted Investments (or any portion thereof)
described in the above clauses or the definitions thereof, the Company, in its sole discretion, may divide and classify, and from time
to time may divide and reclassify (based on circumstances existing at the time of such division or reclassification), such Restricted
Payment (or any portion thereof) or Permitted Investment (or any portion thereof) if it would have been permitted at the time such Restricted
Payment or Permitted Investment was made and at the time of any such reclassification, except that the Company may not reclassify any
Restricted Payment or Permitted Investment as having been made under Section 4.07(b)(10) if originally made under another clause
of Section 4.07(b), under Section 4.07(a)(iii) or as a Permitted Investment.
(e) In
connection with any commitment, definitive agreement, declaration, notice, action or similar event relating to the payment or making of
an Investment or Restricted Payment, the Parent or the applicable Restricted Subsidiary may designate such Investment or Restricted Payment
as having occurred on the date of the commitment, definitive agreement, declaration, notice, action or similar event relating thereto
(such date, the “Election Date”) if, after giving pro forma effect to such Investment or Restricted Payment
and all related transactions in connection therewith and any related pro forma adjustments, the Parent or any of its Restricted
Subsidiaries would have been permitted to make such Investment or Restricted Payment on the relevant Election Date in compliance with
this Indenture, and any related subsequent actual declaration, payment or making of such Investment or Restricted Payment will be deemed
for all purposes under this Indenture to have been made on such Election Date, including, without limitation, for purposes of calculating
any ratio, compliance with any test, usage of any baskets hereunder (if applicable) and Consolidated EBITDA and for purposes of determining
whether there exists any Default or Event of Default (and all such calculations on and after such Election Date until the termination,
expiration, passing, rescission, retraction or rescindment of such commitment, definitive agreement, declaration, notice, action or similar
event shall be made on a pro forma basis giving effect thereto and all related transactions in connection therewith).
Section 4.08. Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) The
Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay
dividends or make any other distributions on its Capital Stock to the Parent or any of its Restricted Subsidiaries or with respect to
any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to the Parent or any of its Restricted
Subsidiaries;
(2) make
loans or advances to the Parent or any of its Restricted Subsidiaries; or
(3) sell,
lease or transfer any of its properties or assets to the Parent or any of its Restricted Subsidiaries.
(b) The
restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:
(1) any
agreement in existence on the date of this Indenture, including agreements governing Existing Indebtedness and Credit Facilities as in
effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements
or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions
than those contained in those agreements on the date of this Indenture;
(2) this
Indenture, the Notes and the Note Guarantees;
(3) agreements
governing other Indebtedness permitted to be incurred under Section 4.09 hereof and any amendments, restatements, modifications,
renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the restrictions therein, taken
as a whole, are not materially more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Note Guarantees;
(4) applicable
law, rule, regulation or order or the terms of any license, authorization, concession or permit;
(5) any
instrument or agreement governing Indebtedness or Capital Stock of a Person acquired by or merged or consolidated with or into the Parent
or any of its Restricted Subsidiaries, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary or that is assumed
in connection with or in contemplation of such acquisition of assets from such Person, in each case as in effect at the time of such transaction,
which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired or merged; provided that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred; provided further that for purposes of this clause (5), if a Person other
than the Parent is the successor issuer with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any
such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Parent or a Restricted Subsidiary, as the case may be,
when such Person becomes such successor issuer;
(6) customary
non-assignment and similar provisions in contracts, leases, sub-leases, licenses and sub-licenses and provisions restricting sub-letting
or sub-licensing in contracts, leases, sub-leases, licenses and sub-licenses entered into in the ordinary course of business;
(7) mortgage
financings, purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;
(8) with
respect to a Restricted Subsidiary (or any of its property or assets), encumbrances or restrictions 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;
(9) Permitted
Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness
are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(10) Liens
permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets
subject to such Liens;
(11) provisions
limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements,
stock sale agreements, licenses, sub-licenses, leases, sub-leases and other similar agreements (including agreements entered into in connection
with a Restricted Investment) in the ordinary course of business, which limitation is applicable only to the assets that are the subject
of such agreements;
(12) restrictions
on cash, Cash Equivalents or other deposits or net worth imposed by customers or suppliers or required by insurance, surety or bonding
companies, in each case, under contracts entered into in the ordinary course of business;
(13) any
encumbrance or restriction arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that does not,
individually or in the aggregate, detract from the value of the property or assets of the Parent or any of its Restricted Subsidiaries
in any manner material to the Parent or its Restricted Subsidiaries;
(14) customary
encumbrances or restrictions contained in agreements in connection with Hedging Obligations or Treasury Management Obligations permitted
under this Indenture;
(15) by
virtue of any transfer of, agreement to transfer, option or right with respect to, any property or assets of the Parent or any Restricted
Subsidiary not otherwise prohibited by this Indenture;
(16) which
exists with respect to a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary of the Parent, on
or after the date of this Indenture, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in
connection with or in anticipation of such Person becoming a Restricted Subsidiary, and which is not applicable to any Person or the property
or assets of any Person other than such Person or the property or assets of such Person becoming a Restricted Subsidiary;
(17) restrictions
on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business or consistent
with industry practice;
(18) restrictions
under customary provisions in partnership agreements, limited liability company organizational or governance documents, joint venture
agreements, corporate charters, stockholders’ agreements and other similar agreements and documents on the transfer of ownership
interests in such partnership, limited liability company, joint venture or similar person;
(19) pursuant
to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Parent
or any Restricted Subsidiary;
(20) a
security agreement governing a Lien permitted under this Indenture containing customary restrictions on the transfer of any property or
assets;
(21) customary
restrictions pursuant to the terms of a Permitted Receivables Financing; and
(22) any
encumbrance or restriction existing under any agreement that extends, renews, refinances, replaces, amends, modifies, restates or supplements
the agreements containing the encumbrances or restrictions in the foregoing clauses (1) through (21), or in this clause (22); provided
that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect than those under
or pursuant to the agreement so extended, renewed, refinanced, replaced, amended, modified, restated or supplemented.
(c) Nothing
contained in this Section 4.08 shall prevent the Parent or any Restricted Subsidiary from (i) creating, incurring, assuming
or suffering to exist any Liens otherwise permitted pursuant to Section 4.12 hereof, or (ii) restricting the sale or other disposition
of property or assets of the Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Parent or any of its Restricted
Subsidiaries incurred in accordance with this Indenture.
(d) For
purposes of determining compliance with this Section 4.08, (1) the priority of any preferred stock in receiving dividends prior
to distributions being paid on common equity shall not be deemed a restriction on the ability to make distributions on Equity Interests
and (2) the subordination of loans or advances made to the Parent or a Restricted Subsidiary to other Indebtedness incurred by the
Parent or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Section 4.09. Incurrence
of Indebtedness and Issuance of Preferred Stock.
(a) The
Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”)
any Indebtedness (including Acquired Debt), and the Parent will not issue any Disqualified Stock and will not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock; provided, however, that the Parent may incur Indebtedness (including Acquired
Debt), the Parent may issue Disqualified Stock, and the Subsidiary Guarantors and the Company may incur Indebtedness (including Acquired
Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio for the Parent’s most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a
pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had
been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter
period.
(b) The
provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively,
“Permitted Debt”):
(1) the
incurrence by the Company and any Guarantor of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal
amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to
the maximum potential liability of the Parent and its Restricted Subsidiaries thereunder) not to exceed (as of the date of incurrence
of Indebtedness under this clause (1) and after giving pro forma effect to such incurrence and the application of net proceeds
therefrom) the greater of (A) $1,250.0 million and (B) 27.50% of Consolidated Total Assets as of the date of such incurrence;
(2) the
incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness and Disqualified Stock existing on the date of
this Indenture;
(3) the
incurrence by the Company and the Guarantors of Indebtedness represented by the Notes to be issued on the date of this Indenture and the
related Note Guarantees (other than any Additional Notes and related Note Guarantees);
(4) the
incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations (other than Deemed
Capitalized Leases), mortgage financings, purchase money obligations or Disqualified Stock, in an aggregate principal amount or accreted
liquidation preference, including all Permitted Refinancing Indebtedness incurred or issued to renew, refund, refinance, replace, defease
or discharge any Indebtedness or Disqualified Stock incurred or issued pursuant to this clause (4), not to exceed the greater of $450.0
million or 10.00% of Consolidated Total Assets at any time outstanding;
(5) the
incurrence by the Parent or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness or the issuance by the Parent of
Disqualified Stock (including additional Disqualified Stock issued to pay premiums, retirement costs, accrued dividends and fees and expenses
in connection therewith) in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease, discharge
or extend any Indebtedness or Disqualified Stock (other than intercompany Indebtedness or Disqualified Stock) that was permitted by this
Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (3), (4), (5), (12), (16), (18), (19) or (24) of this
Section 4.09(b);
(6) the
incurrence by the Parent or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Parent and any of its
Restricted Subsidiaries; provided, however, that:
(A) if:
(1) the Company or any Guarantor
is the obligor on such Indebtedness; and
(2) the payee
is not the Company or a Guarantor,
then such Indebtedness must be unsecured
and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of
the Company, or the Note Guarantee, in the case of a Guarantor; and
(B) (1) any
subsequent issuance or transfer of Equity Interests that results in any Indebtedness incurred under this clause (6) being held by
a Person other than the Parent or a Restricted Subsidiary thereof; and
(2) any sale
or other transfer of any Indebtedness incurred under this clause (6) to a Person that is not either the Parent or a Restricted Subsidiary
thereof,
will be deemed, in each case, to constitute
an incurrence of such Indebtedness by the Parent or such Restricted Subsidiary, as the case may be, that was not permitted by this clause
(6);
(7) the
issuance by any of the Restricted Subsidiaries to the Parent or to any of its Restricted Subsidiaries of shares of preferred stock; provided,
however, that:
(A) any
subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Parent
or a Restricted Subsidiary thereof; and
(B) any
sale or other transfer of any such preferred stock to a Person that is not either the Parent or a Restricted Subsidiary thereof,
will be deemed, in each case, to constitute
an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (7);
(8) the
incurrence by the Parent or any of its Restricted Subsidiaries of Hedging Obligations and Obligations with respect to Treasury Management
Arrangements in the ordinary course of business;
(9) the
guarantee by the Parent or any Restricted Subsidiary of Indebtedness of the Parent or a Restricted Subsidiary thereof, to the extent that
the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness
being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu,
as applicable, to the same extent as the Indebtedness guaranteed;
(10) the
incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness in respect of letters of credit, workers’ compensation
claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, statutory
obligations, bankers’ acceptances, bank guarantees, customs bonds, stay bonds, performance and surety bonds, completion guarantees,
bid bonds, appeal bonds and similar obligations in the ordinary course of business or consistent with industry practice;
(11) the
incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered
within ten Business Days;
(12) the
incurrence by Foreign Subsidiaries of Indebtedness in an aggregate principal amount at any time outstanding pursuant to this clause (12),
including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (12), not to exceed the greater of $250.0 million or 5.00% of Consolidated Total Assets (or the equivalent
thereof, measured at the time of each incurrence, in the applicable foreign currency) (it being understood that any Indebtedness incurred
pursuant to this clause (12) shall cease to be deemed incurred or outstanding for purposes of this clause (12) but shall be deemed incurred
for the purposes of Section 4.09(a) from and after the first date on which such Foreign Subsidiary could have incurred such
Indebtedness under Section 4.09(a) without reliance upon this clause (12));
(13) the
incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness in respect of endorsements of negotiable instruments in
the ordinary course of business;
(14) the
incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness consisting of the financing of insurance premiums in the
ordinary course of business;
(15) the
incurrence by the Parent or any of its Restricted Subsidiaries of:
(A) Indebtedness
consisting of seller financing, seller notes and other similar obligations incurred in connection with any Permitted Investment (including
any such Indebtedness assumed in connection with an acquisition permitted hereunder) in an aggregate principal amount not to exceed the
greater of $125.0 million and 2.50% of Consolidated Total Assets at any time outstanding; or
(B) Indebtedness
arising from agreements of the Parent or its Restricted Subsidiaries providing for working capital adjustments, purchase price adjustments,
non-competes, consulting, deferred compensation, holdbacks, earn-out obligations, contingent consideration, contributions and similar
obligations incurred in connection with any Permitted Investment or disposition of any business;
(16) Indebtedness
of any Person that is assumed by the Parent or a Restricted Subsidiary in connection with the acquisition of such Person or Indebtedness
of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated
with or into the Parent or a Restricted Subsidiary) after the date hereof as a result of an Investment permitted hereunder and all Permitted
Refinancing Indebtedness thereof; provided that after giving effect to such Person becoming a Restricted Subsidiary (or to such
merger or consolidation), the Parent would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in clause (a) of this Section 4.09 or the Fixed Charge Coverage Ratio of the Parent would equal
or exceed the Fixed Charge Coverage Ratio of the Parent immediately prior to giving effect thereto;
(17) Indebtedness
consisting of promissory notes issued by the Parent or any of its Restricted Subsidiaries to any future, current or former employee, director
or consultant of the Parent, any of the Parent’s direct or indirect parents or any of the Parent’s Subsidiaries (or permitted
transferees, assigns, estates or heirs of such employee, director or consultant), to finance the purchase or redemption of Equity Interests
of the Parent, any of the Parent’s direct or indirect parents or any of the Parent’s Subsidiaries permitted by Section 4.07
hereof;
(18) the
incurrence by any Domestic Subsidiary of the Parent that is not a Guarantor of Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding pursuant to this clause (18), including all Permitted Refinancing Indebtedness incurred
to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (18), not to exceed the greater
of $25.0 million and 0.50% of Consolidated Total Assets;
(19) the
incurrence by the Parent or any of its Restricted Subsidiaries of additional Indebtedness or Disqualified Stock in an aggregate principal
amount (or accreted value or liquidation preference, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (19), not to exceed
the greater of $350.0 million or 7.50% of Consolidated Total Assets (it being understood that any Indebtedness incurred pursuant to this
clause (19) shall cease to be deemed incurred or outstanding for purposes of this clause (19) but shall be deemed incurred for the purposes
of Section 4.09(a) from and after the first date on which the Parent or such Restricted Subsidiary could have incurred such
Indebtedness under Section 4.09(a) without reliance upon this clause (19));
(20) Indebtedness
of the Parent or any of its Restricted Subsidiaries to the extent the proceeds of such Indebtedness are deposited and used to defease
or satisfy and discharge all of the Notes then outstanding;
(21) Indebtedness
representing deferred compensation to employees of the Parent and its Restricted Subsidiaries in the ordinary course of business;
(22) Indebtedness
incurred by the Parent and its Restricted Subsidiaries in respect of netting services, overdraft protections and similar arrangements,
in each case, in connection with deposit accounts;
(23) unsecured
Indebtedness in respect of credit card programs; and
(24) the
incurrence by the Parent or any of its Restricted Subsidiaries of Indebtedness represented by a mortgage financing of (i) its corporate
headquarters and (ii) in an amount not exceeding the greater of (A) $75.0 million and (B) 1.25% of Consolidated Total Assets,
including all Permitted Refinancing Indebtedness incurred or issued to renew, refund, refinance, replace, defease or discharge any such
Indebtedness incurred or issued pursuant to this clause (24); provided that (a) the aggregate principal amount of Indebtedness
incurred under this clause (24)(i) shall not exceed the fair market value of the corporate headquarters (as determined in good faith
by the Parent and measured at the time of such incurrence) and (b) any such Indebtedness under clause (24)(i) shall not be secured
by Liens on any other assets of the Parent or its Restricted Subsidiaries other than such corporate headquarters improvements, accessions
and appurtenances thereto and the proceeds and products thereof.
The Company and the Parent
will not incur, and will not permit any Subsidiary Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually
subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however,
that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely
by virtue of being unsecured or by virtue of being secured on a junior priority basis.
For purposes of determining
compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories
of Permitted Debt described in clauses (1) through (24) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof,
the Company will be permitted to divide and classify such item of Indebtedness on the date of its incurrence, or later reclassify all
or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness under Credit Facilities
outstanding on the 2030 Notes Issue Date will be deemed at all times to have been incurred on such date in reliance on the exception provided
by clause (1) of the definition of Permitted Debt. The accrual of interest or preferred stock dividends, the accretion or amortization
of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the
reclassification of preferred stock as Indebtedness due to a change in accounting principles and the payment of dividends on preferred
stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed
to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.09; provided,
in each such case, that the amount thereof is included in Fixed Charges of the Parent as accrued. For purposes of determining compliance
with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness
denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such
Indebtedness was incurred (or, in the case of revolving Indebtedness incurred pursuant to this Section 4.09, on the date such Indebtedness
was first committed); provided, that if any such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign
currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not
to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness
being refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Parent or
any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations
in exchange rates or currency values.
In connection with the incurrence
of (x) revolving loan Indebtedness under this Section 4.09 or (y) any commitment relating to the incurrence of Indebtedness
under this Section 4.09 and the granting of any Lien to secure such Indebtedness, the Parent or the applicable Restricted Subsidiary
may designate such incurrence and the granting of any Lien thereof as having occurred on the date of first incurrence of such revolving
loan Indebtedness or commitment (such date, the “Deemed Date”), and any related subsequent actual incurrence and granting
of such Lien therefor will be deemed for all purposes under this Indenture to have been incurred and granted on such Deemed Date, including,
without limitation, for purposes of calculating the Consolidated Fixed Charge Coverage Ratio, usage of any baskets hereunder (if applicable)
and Consolidated EBITDA (and all such calculations on and after the Deemed Date until the termination or funding of such commitment shall
be made on a pro forma basis giving effect to the deemed incurrence, the granting of any Lien therefor and related transactions
in connection therewith).
The amount of any Indebtedness
outstanding as of any date will be:
(1) the
accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the
principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in
respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the
Fair Market Value of such assets at the date of determination; and
(B) the
amount of the Indebtedness of the other Person.
Section 4.10. Asset
Sales.
(a) The
Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the
Parent or any of its Restricted Subsidiaries receives consideration at the time of the Asset Sale at least equal to the Fair Market Value
(measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold
or otherwise disposed of; and
(2) at
least 75% of the consideration received in the Asset Sale by the Parent or such Restricted Subsidiary is in the form of cash or Cash Equivalents.
For purposes of this provision, each of the following will be deemed to be cash:
(A) any
liabilities of the Parent or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated
to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity
agreement that releases the Parent or such Restricted Subsidiary from or indemnifies against further liability with respect to such liabilities;
(B) any
securities, notes or other obligations received by the Parent or any such Restricted Subsidiary from such transferee that are within 180
days of such Asset Sale, subject to ordinary settlement periods, converted by the Parent or such Restricted Subsidiary into cash or Cash
Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any
stock or assets of the kind referred to in clauses (2) or (4) of paragraph (b) of this Section 4.10, subject to the
conditions stated therein;
(D) Indebtedness
of any Restricted Subsidiary (other than subordinated Indebtedness or intercompany obligations) that is no longer a Restricted Subsidiary
as a result of such Asset Sale, to the extent that the Parent and each Restricted Subsidiary are released from any guarantee of payment
of such Indebtedness in connection with the Asset Sale; and
(E) any
Designated Noncash Consideration received by the Parent or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that has not previously
been converted to cash not to exceed the greater of $125.0 million or 2.75% of Consolidated Total Assets at the time of receipt of such
Designated Noncash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time
received and without giving effect to subsequent changes in value.
(b) Within
365 days after the receipt of any Net Proceeds from an Asset Sale (a binding commitment entered into within such 365 day period shall
be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within
180 days of the date of such commitment), the Parent or one or more Restricted Subsidiaries may apply an amount equal to the amount of
such Net Proceeds:
(1) to
repay (a) Indebtedness and other Obligations under a Credit Facility; or (b) other Indebtedness (other than Indebtedness contractually
subordinated in right of payment to the Notes or to any Note Guarantee) of the Parent or any Restricted Subsidiary thereof secured by
a Permitted Lien;
(2) to
acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any
such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Parent;
(3) to
make one or more capital expenditures; or
(4) to
acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business or replace
the assets subject to this Section 4.10;
(5) with
respect to Asset Sales of assets of a Restricted Subsidiary that is not a Guarantor or the issuer of the Notes, to permanently reduce
Indebtedness of a Restricted Subsidiary that is not a Guarantor or the issuer of the Notes (and to correspondingly reduce commitments
with respect thereto), other than Indebtedness owed to the Parent or a Subsidiary of the Parent; and/ or
(6) a
combination of repayment and investment permitted by the foregoing clauses (1), (2), (3), (4) and (5).
(c) Pending
the final application of any Net Proceeds, the Parent or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings
or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(d) If
the Net Proceeds exceed the aggregate amount within the applicable time period, such excess amount that has not been applied or invested
as provided clause (b) of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount
of Excess Proceeds exceeds $100.0 million, within thirty days thereof, the Company will make an Asset Sale Offer to all Holders of Notes
and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the
maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the
amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out
of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid
interest, if any, to, but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on
the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by
this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid
or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such
other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid
or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral
multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will
be reset at zero.
(e) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To
the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this
Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached
its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Section 4.11. Transactions
with Affiliates.
(a) The
Parent will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Parent (each, an “Affiliate
Transaction”), unless:
(1) the
Affiliate Transaction is on terms that, taken as a whole, are not materially less favorable to the Parent or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the Parent or such Restricted Subsidiary with an unrelated Person;
and
(2) with
respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0
million, the Company delivers to the Trustee a resolution of the Board of Directors of the Parent set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of Directors of the Parent.
(b) The
following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any
employment agreement, severance agreement, collective bargaining agreement, consultant, employee benefit plans or arrangements with any
employee, consultant, officer or director, including any stock option, stock appreciation rights, stock incentive or similar plans, director
or officer indemnification agreements or any similar arrangements entered into by the Parent or any of its Restricted Subsidiaries in
the ordinary course of business and payments pursuant thereto;
(2) transactions
between or among the Parent and/or its Restricted Subsidiaries, including any entity that becomes a Restricted Subsidiary as a
result of such transaction;
(3) transactions
with a Person (other than an Unrestricted Subsidiary of the Parent) that is an Affiliate of the Parent solely because the Parent owns,
directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment
of reasonable and customary compensation, salaries, bonuses, fees, other employee benefits and indemnities and reimbursement of expenses
(pursuant to indemnity arrangements or otherwise) of current or future officers, directors, managers, employees or consultants of the
Parent or any of its Restricted Subsidiaries;
(5) transactions
between the Parent or any Restricted Subsidiary and any Person that is an Affiliate of the Parent or any Restricted Subsidiary solely
because a director of such Person is also a director of the Parent any Restricted Subsidiary or any direct or indirect parent entity of
the Parent; provided that such director abstains from voting as a director of the Parent or such Restricted Subsidiary on any matter
involving such other Person;
(6) any
issuance of Equity Interests (other than Disqualified Stock) of the Parent to any officer, director or employee of the Parent or any of
its Restricted Subsidiaries or any other Affiliates of the Parent;
(7) Restricted
Payments or Permitted Investments that do not violate Section 4.07 hereof;
(8) contracts
or arrangements between the Parent and/or its Subsidiaries and any of its Affiliates regarding coordination and/or joint defense of any
litigation or any other action, suit, proceeding, claim or dispute before any courts, arbitrators or governmental authority;
(9) contracts
or arrangements to sell or buy advertising between the Parent and/or its Subsidiaries and any of its Affiliates entered into in the ordinary
course of business;
(10) payments
to an Affiliate in respect of the Notes or any other Indebtedness of the Parent or any Restricted Subsidiary on the same basis as concurrent
payments made or offered to be made in respect thereof to non-Affiliates;
(11) any
merger, consolidation or reorganization of the Parent with an Affiliate thereof solely for the purpose of (A) forming or collapsing
a holding company structure or (B) reincorporating the Parent in a new jurisdiction;
(12) (A) transactions
with customers, clients, suppliers, joint venture partners, or purchasers or sellers of goods or services, (B) transactions with
joint ventures or Unrestricted Subsidiaries entered into in the ordinary course of business and consistent with past practice or industry
norm or (C) any management services or support agreement, in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture that are fair to the Parent or any of its Restricted Subsidiaries, in the good faith determination of
the Board of Directors of the Parent or the disinterested senior management thereof, or are on terms at least as favorable as might reasonable
have been obtained at such time from an unaffiliated Person;
(13) any
transaction which has been determined, in the opinion of an accounting, appraisal or investment banking firm of national standing, to
be fair, from a financial point of view, to the Parent or the applicable Restricted Subsidiary or stating that the terms are not materially
less favorable to the Parent or its relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction
by the Parent or such Restricted Subsidiary with an unrelated Person;
(14) transactions
entered into in good faith with any of the Parent’s or a Restricted Subsidiary’s Affiliates which provide for shared services
and/or facilities arrangements and which provide cost savings and/or other operational efficiencies to the Parent and its Restricted Subsidiaries,
taken as a whole, and payments related thereto;
(15) transactions
pursuant to any contract or agreement with the Parent or any of its Restricted Subsidiaries in effect on the date of this Indenture, as
the same may be amended, modified or replaced from time to time so long as any such amendment, modification or replacement in not more
disadvantageous to the Holders in any material respect than the terms contained in such contract or agreement in effect on the date of
this Indenture;
(16) provision
by an Affiliate of commercial banking or lending services or other similar services on terms that are no less favorable to the Parent
or the relevant Restricted Subsidiary than those that would have been obtained by an unaffiliated party;
(17) the
pledge of Capital Stock of an Unrestricted Subsidiary or joint venture to secure Indebtedness of that Person;
(18) issuances
of Equity Interests of the Parent not constituting a Change of Control;
(19) the
formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary
course of business or other transactions undertaken for the purpose of the consolidated tax efficiency of the Parent and its Subsidiaries
and not for the purposes of circumventing any covenants set forth in the indenture; provided that the Board of Directors determines
in good faith that the formation and maintenance of such group or subgroup is in the best interests of the Parent, and will not result
in the Parent and the Restricted Subsidiaries paying taxes in excess of the tax liability that would have been payable by them on a stand-alone
basis;
(20) transactions
permitted by, and complying with, the provisions of Sections 5.01 and 10.04(a); and
(21) sales
of accounts receivable, or participations therein, or any related transaction, in connection with any Permitted Receivables Financing.
Section 4.12. Liens.
The Parent will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur or assume any Lien of any kind securing Indebtedness,
Attributable Debt or trade payables on any asset now owned or hereafter acquired, except Permitted Liens, unless all payments due under
this Indenture and the Notes are secured on an equal and ratable basis with the obligations so secured until such time as such obligations
are no longer secured by a Lien (or, if such Lien secures Indebtedness or Attributable Debt that is subordinate in right of payment to
the Notes or any Note Guarantee, the Notes or such Note Guarantee are secured on a senior basis to the obligations so secured until such
time as such obligations are no longer secured by a Lien).
For purposes of determining
compliance with this Section 4.12, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to
one category of Permitted Liens (or any portion thereof) described in the definition of “Permitted Liens” but may be permitted
in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof)
meets the criteria of one or more of the categories of permitted Liens (or any portion thereof) described in the definition of “Permitted
Liens,” the Company may, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Lien securing
such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 4.12.
With respect to any Lien securing
Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be
permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean
any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization
of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common
stock of the Parent, the payment of dividends on preferred stock in the form of additional shares of preferred stock of the same class,
accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.
Section 4.13. Business
Activities.
The Parent will not, and will
not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would
not be material to the Parent and its Restricted Subsidiaries taken as a whole.
Section 4.14. Corporate
Existence.
Subject to Article 5
hereof, the Parent and the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect:
(1) its
corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Parent or any such Subsidiary; and
(2) the
rights (charter and statutory), licenses and franchises of the Parent and its Subsidiaries; provided, however, that the Company
and the Parent shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence
of any of its Subsidiaries, if the Board of Directors of the Parent shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Parent and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
Section 4.15. Repurchase
at the Option of Holders.
(a) Upon
the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Offer”) to each Holder,
unless the Company has previously or concurrently mailed or sent a redemption notice with respect to all of the outstanding Notes pursuant
to Section 3.07 hereof, to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that
Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and
unpaid interest, if any, on the Notes repurchased to, but not including, the date of purchase, subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”).
Within 30 days following any Change of Control, unless the Company has previously or concurrently mailed or sent a redemption notice with
respect to all of the outstanding Notes pursuant to Section 3.07 hereof, the Company will cause to be mailed, by first class mail
(or otherwise cause to be transmitted in accordance with the Applicable Procedures), a notice to each Holder describing the transaction
or transactions that constitute the Change of Control and stating:
(1) that
the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;
(2) the
purchase price and the purchase date, which shall be no earlier than 10 days and no later than 60 days from the date such notice is mailed,
except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described below (in which case the
expected repurchase date will be stated and may be based on a date relative to the closing of the transaction that is expected to result
in the Change of Control and which may be tolled until the closing of such transaction) (the “Change of Control Payment Date”);
(3) that
any Note not tendered will continue to accrue interest;
(4) that,
unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest after the Change of Control Payment Date;
(5) that
Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form
entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control
Payment Date;
(6) that
Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business
Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased;
and
(7) that
Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess
thereof
The Company will comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with this Section 4.15, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.15 by virtue of such
compliance.
(b) On
the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept
for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit
with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered;
and
(3) deliver
or cause to be delivered to the Trustee for cancellation the Notes properly accepted together with an Officers’ Certificate stating
the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
(c) The
Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any. The Company will publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
(d) Notwithstanding
anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party (including an affiliate of the Company) makes the Change of Control Offer in the manner, at the times
and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless
and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein,
a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control,
if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
Section 4.16. Limitation
on Sale and Leaseback Transactions.
The Parent will not, and will
not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction; provided that the Parent or any
Restricted Subsidiary may enter into a sale and leaseback transaction if:
(1) the
Parent or that Restricted Subsidiary, as applicable, could have (a) incurred Indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction under the Fixed Charge Coverage Ratio test in Section 4.09(a) hereof and
(b) incurred a Lien to secure such Indebtedness pursuant to Section 4.12 hereof;
(2) the
gross cash proceeds of that sale and leaseback transaction are at least equal to the Fair Market Value, as determined in good faith by
the Board of Directors of the Parent and set forth in an Officers’ Certificate delivered to the Trustee, of the property that is
the subject of that sale and leaseback transaction; and
(3) the
transfer of assets in that sale and leaseback transaction is permitted by, and the Parent applies the proceeds of such transaction in
compliance with Section 4.10 hereof.
Section 4.17. Payments
for Consent.
The Parent will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit
of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
Notwithstanding the foregoing, any payment of
consideration for, or as an inducement to, any consent, waiver or amendment of any of the terms or provisions of this Indenture, the Notes
or the Note Guarantees in connection with an exchange offer, the Parent and any of its Restricted Subsidiaries may exclude (i) any
Holder or Beneficial Owner that is not a QIB or an Institutional Accredited Investor, (ii) any Non-U.S. Person, (iii) any Holder
or Beneficial Owner of Notes in any jurisdiction (other than the United States) where the inclusion of such Holders or Beneficial Owners
would require the Parent or any such Restricted Subsidiary to comply with the registration requirements or other similar requirements
under any securities laws of such jurisdiction or the solicitation of such consent, waiver or amendment from, or the granting of such
consent or waiver, or the approval of such amendment by, Holders or Beneficial Owners in such jurisdiction would be unlawful, in each
case as determined by the Parent, in its sole discretion.
Section 4.18. Additional
Note Guarantees.
If the Parent or any of its
Restricted Subsidiaries acquires or creates another Domestic Subsidiary after the date of this Indenture and such Domestic Subsidiary
becomes a guarantor of the Company’s obligations under the Credit Agreement, then that newly acquired or created Domestic Subsidiary
will become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel satisfactory to the Trustee within 30 Business
Days of the date on which it first became a guarantor under the Credit Agreement to the effect that such supplemental indenture has been
duly authorized, executed and delivered by that Domestic Subsidiary and constitutes a valid and binding agreement of that Domestic Subsidiary,
enforceable in accordance with its terms (subject to customary exceptions). The form of such supplemental indenture is attached as Exhibit E
hereto.
Section 4.19. Designation
of Restricted and Unrestricted Subsidiaries.
The Board of Directors of
the Parent may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary
through merger or consolidation or Investment therein but excluding the Company) to be an Unrestricted Subsidiary if that designation
would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of
all outstanding Investments owned by the Parent and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed
to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07(a) hereof
or under one or more clauses of the definition of Permitted Investments, as determined by the Parent. That designation will only be permitted
if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
The Board of Directors of the Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would
not cause a Default.
Any designation of a Subsidiary
of the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution
of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied
with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to
meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes
of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Parent as of
such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Parent will be
in default of such covenant. The Board of Directors of Parent may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary
of the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at
the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.
Section 4.20. Suspension
of Certain Covenants.
(a) If
at any time after the Issue Date (i) the Notes have an Investment Grade Rating from both of the Rating Agencies and (ii) no
Default has occurred and is continuing under this Indenture, then the Parent and its Restricted Subsidiaries shall not be subject to Section 4.07,
Section 4.08, Section 4.09, Section 4.10, Section 4.11, Section 4.19, or clause (4) of Section 5.01
hereof (the “Suspended Covenants”).
(b) During
any such period in which the Suspended Covenants are suspended (a “Suspension Period”), the Parent shall not be permitted
to designate any Restricted Subsidiary as an Unrestricted Subsidiary unless the Parent would have been permitted to designate such Subsidiary
as an Unrestricted Subsidiary if a Suspension Period had not been in effect for any period and such designation shall be deemed to have
created a Restricted Payment, as set forth in Section 4.07 hereof, following the Reversion Date.
(c) In
the event that the Parent and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result
of the foregoing, and on any subsequent date (the “Reversion Date”) the condition set forth in clause (i) of Section 4.20(a) hereof
is no longer satisfied, then the Parent and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants with
respect to future events.
(d) During
the Suspension Period, the Parent and its Restricted Subsidiaries will be entitled to incur Liens to the extent provided for under Section 4.12
hereof (including, without limitation, Permitted Liens to the extent provided for in Section 4.12 hereof), and any Permitted Liens
which may refer to one or more Suspended Covenants shall be interpreted as though such applicable Suspended Covenants continued to be
applicable during the Suspension Period (but solely for purposes of Section 4.12 hereof and for no other covenant).
(e) On
each Reversion Date, all Indebtedness incurred during the Suspension Period prior to such Reversion Date will be deemed to be Existing
Indebtedness incurred pursuant to clause (2) of Section 4.09(b) hereof. For purposes of calculating the amount available
to be made as Restricted Payments under Section 4.07(a)(iii) hereof, calculations under such paragraph shall be made as though
such Section 4.07 had been in effect during the entire period of time after the Issue Date (including the Suspension Period), except
that no Default will be deemed to have occurred solely by reason of a Restricted Payment made during the Suspension Period. Restricted
Payments made during the Suspension Period not otherwise permitted under Section 4.07(b) hereof will not reduce the amount available
to be made as Restricted Payments under Section 4.07(a)(iii) hereof. For purposes of Section 4.10, on the Reversion Date,
the amount of Excess Proceeds not applied in accordance with such covenant will be reset to zero.
(f) Notwithstanding
that the Suspended Covenants may be reinstated, no Default will be deemed to have occurred as a result of a failure to comply with the
Suspended Covenants during any Suspension Period or upon the Reversion Date or after that time solely based upon events that occurred
during the Suspension Period.
Article 5
SUCCESSORS
Section 5.01. Merger,
Consolidation or Sale of Assets.
(a) The
Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the
surviving corporation), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties
or assets of the Company and its Guarantors taken as a whole, in one or more related transactions, to another Person, unless:
(1) either:
(A) the
Company is the surviving corporation; or
(B) the
Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition has been made is an entity organized or existing under the laws of the United States, any state of the
United States or the District of Columbia (including a limited liability company or partnership organized or existing under the laws of
the United States, any state of the United States or the District of Columbia); and, if such entity is not a corporation, a co-obligor
of the Notes is a corporation organized or existing under any such laws;
(2) the
Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture;
(3) immediately
after such transaction, no Default or Event of Default exists; and
(4) the
Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment,
transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto
and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period (i) be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof;
or (ii) have had a Fixed Charge Coverage Ratio greater than the actual Fixed Charge Coverage Ratio for the Company for such four-quarter
period.
In addition, the Company will not, directly or
indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one
or more related transactions, to any other Person.
(b) This
Section 5.01 will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among
the Parent and its Restricted Subsidiaries. Clauses (3) and (4) of this Section 5.01 will not apply to (1) any merger
or consolidation of the Company with or into the Parent or one of its Restricted Subsidiaries for any purpose or (2) any consolidation,
amalgamation or merger of the Company into or the sale, assignment, transfer, lease, conveyance or other disposition of all or part of
the properties and assets of the Company to, any Guarantor, (3) the conversion of the Company or any Restricted Subsidiary into a
corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the United States,
any state thereof or the District of Columbia, or (4) with or into an Affiliate solely for the purpose of reincorporating the Company
in another jurisdiction. In addition, the Company or any Restricted Subsidiary may change its name.
Section 5.02. Successor
Corporation Substituted.
Upon any consolidation or
merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets
of the Company or the Parent in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof,
the successor Person formed by such consolidation or into or with which the Company or the Parent (as applicable) is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from
and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of
this Indenture referring to the “Company” or the “Parent” (as applicable) shall refer instead to the successor
Person and not to the Company or the Parent), and may exercise every right and power of the Company or the Parent (as applicable) under
this Indenture with the same effect as if such successor Person had been named as the Company or the Parent (as applicable) herein; provided,
however, that the predecessor Company shall not be relieved from the obligation to pay the principal of, premium on, if any, and interest
on, the Notes except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof.
Article 6
DEFAULTS AND REMEDIES
Section 6.01. Events
of Default.
(a) Each
of the following is an “Event of Default”:
(1) default
for 30 days in the payment when due of interest on the Notes;
(2) default
in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the Notes;
(3) failure
by the Parent or any of its Restricted Subsidiaries to comply with the provisions of Section 4.10 or 4.15 hereof;
(4) failure
by the Parent or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other agreements in
this Indenture;
(5) default
under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Parent or any Significant Subsidiary (or the payment of which is guaranteed by the Parent or any Significant
Subsidiary), whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture, if that default:
(A) is
caused by a failure to pay principal of, premium on, if any, or interest if any, on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a “Payment Default”); or
(B) results
in the acceleration of such Indebtedness prior to its Stated Maturity,
and, in each case, the principal amount
of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default
or the Stated Maturity of which has been so accelerated, aggregates $100.0 million or more;
(6) failure
by the Parent or any Significant Subsidiary to pay final judgments entered by a court or courts of competent jurisdiction aggregating
in excess of $100.0 million (not covered by independent third-party insurance as to which liability has not been denied by such insurance
carrier), which judgments are not paid, bonded, discharged, stayed, annulled or rescinded for a period of 60 days;
(7) except
as permitted by this Indenture, any Note Guarantee of the Parent or a Significant Subsidiary is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect (other than in accordance with the terms of such Note
Guarantee), or the Parent, or any Guarantor which is a Significant Subsidiary, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Note Guarantee (other than by reason of release of a Guarantor from its Note Guarantee in accordance
with the terms of this Indenture and the Note Guarantee); and
(8) the
Parent or any Significant Subsidiary pursuant to or within the meaning of 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 all or substantially all of its property,
(D) makes
a general assignment for the benefit of its creditors, or
(E) generally
is not paying its debts as they become due;
(9) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is
for relief against the Parent or any Significant Subsidiary in an involuntary case;
(B) appoints
a custodian of the Parent or any Significant Subsidiary or for all or substantially all of the property of the Parent or any Significant
Subsidiary; or
(C) orders
the liquidation of the Parent or any Significant Subsidiary; or
and the order or decree remains unstayed
and in effect for 60 consecutive days.
(b) In
the event of any Event of Default specified in clause (a)(5) above, such Event of Default and all consequences thereof (excluding
any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically
and without any action by the Trustee or the Holders of Notes, if within 90 days after such Event of Default arose, the Company delivers
an Officers’ Certificate to the Trustee stating that:
(1) (A) the
Indebtedness or guarantee that is the basis for such Event of Default has been discharged or (B) holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default;
(2) the
annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction; and
(3) all
existing Events of Default, except nonpayment of principal, premium or interest on the Notes that became due solely because of the acceleration
of the Notes, have been cured or waived.
Section 6.02. Acceleration.
In the case of an Event of
Default specified in clause (a)(8) or (a)(9) of Section 6.01 hereof with respect to the Company, all outstanding Notes
will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due
and payable immediately. Upon any such declaration, the Notes shall become due and payable immediately.
The Holders of a majority
in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders of all
the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences, if the rescission would not
conflict with any judgment or decree, except a continuing Default or Event of Default in the payment of principal of, premium on, if any,
or interest on, the Notes.
Any notice of Default, notice
of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (or refrain
from taking any action) (a “Noteholder Direction”) provided by any one or more holders of the notes (each a “Directing
Holder”) must be accompanied by a written representation from each such holder delivered to the Company and the Trustee that
such holder is not (or, in the case such holder is DTC or its nominee, that such holder is being instructed solely by beneficial owners
that are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction
relating to the delivery of a notice of Default shall be deemed a continuing representation until the resulting Event of Default is cured
or otherwise ceases to exist or the notes are accelerated. In addition, each Directing Holder is deemed, at the time of providing a Noteholder
Direction, to covenant to provide the Company (with a copy to the Trustee) with such other information as the Company may reasonably request
from time to time in order to verify the accuracy of such Noteholder’s Position Representation within five Business Days of request
therefor (a “Verification Covenant”). In any case in which the holder is DTC or its nominee (after delivery to the
trustee of appropriate confirmation of beneficial ownership satisfactory to the trustee), any Position Representation or Verification
Covenant required hereunder shall be provided by the beneficial owner of the notes in lieu of DTC or its nominee and DTC shall be entitled
to conclusively rely on such Position Representation and Verification Covenant in delivering its direction to the trustee. The Trustee
shall have no duty whatsoever to provide this information to the Company or to obtain this information for the Company.
If, following the delivery
of a Noteholder Direction, but prior to acceleration of the notes, the Company determines in good faith that there is a reasonable basis
to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provides to the Trustee an officers’
certificate stating that the Company has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing
Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Default, Event of Default or acceleration
(or notice thereof) that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically
stayed and the cure period with respect to such Default or Event of Default shall be automatically reinstituted and any remedy stayed
pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a
Noteholder Direction, but prior to acceleration of the notes, the Company provides to the Trustee an officers’ certificate stating
that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically
stayed and the cure period with respect to any Default or Event of Default that resulted from the applicable Noteholder Direction shall
be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation
shall result in such holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of
such holder, the percentage of notes held by the remaining holders that provided such Noteholder Direction would have been insufficient
to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio (other than any indemnity or security
such holder may have offered the Trustee), with the effect that such Default or Event of Default shall be deemed never to have occurred,
acceleration voided and the trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event
of Default.
Notwithstanding anything
in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of
Default as the result of a bankruptcy or similar proceeding shall not require compliance with the foregoing paragraphs.
For the avoidance of doubt,
the Trustee shall be entitled to conclusively rely on any Noteholder Direction delivered to it in accordance with the indenture, shall
have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any Verification Covenant,
verify any statements in any officers’ certificate delivered to it, or otherwise make calculations, investigations or determinations
with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise. The Trustee
shall have no liability to the Parent, any holder or any other Person in acting in good faith on a Noteholder Direction.
Section 6.03. Other
Remedies.
If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a
proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
The Trustee shall have the
right in an Event of Default to file a proof of claim on behalf of the Noteholders as creditors in a bankruptcy.
Section 6.04. Waiver
of Past Defaults.
The Holders of a majority
in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in
the payment of principal of, premium on, if any, or interest on, the Notes (including in connection with an offer to purchase); provided,
however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and
its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control
by Majority.
Holders of a majority in aggregate
principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in personal liability.
Section 6.06. Limitation
on Suits.
No Holder of a Note may pursue
any remedy with respect to this Indenture or the Notes unless:
(1) such
Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2) Holders
of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;
(3) such
Holder or Holders offer and, if requested, provide to the Trustee security or indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
(4) the
Trustee does not comply with such request within 60 days after receipt of the request and the offer of security or indemnity; and
(5) during
such 60-day period, Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with such request.
A Holder of a Note may not
use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
Section 6.07. Rights
of Holders of Notes to Receive Payment.
Notwithstanding any other
provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, premium on, if any, or interest on
the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent
of such Holder.
Section 6.08. Collection
Suit by Trustee.
If
an Event of Default specified in Section 6.01(1) or
(2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium on, if any, and interest remaining unpaid on the Notes and interest
on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee
May File Proofs of Claim.
The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors
or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any
money pursuant to this Article 6, it shall pay out the money in the following order:
First: to
the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
Third: to
the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record
date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking
for Costs.
In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court
in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court
in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to
a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate
principal amount of the then outstanding Notes.
Article 7
TRUSTEE
Section 7.01. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs. Such standard of care is not considered a fiduciary standard nor shall the Trustee be considered a
fiduciary in performance of its duties.
(b) Except
during the continuance of an Event of Default:
(1) the
duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
(c) The
Trustee may not be relieved from liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(1) this
paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) the
Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was grossly negligent in ascertaining the pertinent facts; and
(3) the
Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No
provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability. The Trustee will be under
no obligation to exercise any of its rights or powers under this Indenture at the request of any Holders, unless such Holder has offered
to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(f) The
Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02. Rights
of Trustee.
(a) The
Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee
will not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel will be full and complete
authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The
Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The
Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights
or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed
by an Officer of the Company.
(f) The
Trustee will 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 unless such Holders have offered to the Trustee reasonable indemnity or security satisfactory to the Trustee against
the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g) In
no event shall the Trustee be liable for any consequential damages.
Section 7.03. Individual
Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it
must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified
under the TIA) or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
Section 7.04. Trustee’s
Disclaimer.
The Trustee will not be responsible
for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s
use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this
Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and
it will not be responsible for any statement or recital herein or any statement in the Notes, Offering Memorandum or any other document
in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05. Notice
of Defaults.
If a Default or Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee will mail to Holders of Notes a notice of the Default or Event
of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium on,
if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders of the Notes. The Trustee is not deemed to have knowledge
of any Event of Default, except payment-related default, unless specifically notified in writing as provided in Section 12.02 and
in the absence of any such notice, the Trustee may conclusively assume that no such Default or Event of Default exists.
Section 7.06. [Reserved].
Section 7.07. Compensation
and Indemnity.
(a) The
Company will pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder.
The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. The Company will reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation
for its services. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel.
(b) The
Company and the Guarantors will indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of
or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether
asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its gross negligence
or willful misconduct. The Trustee will notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor
will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the Company will pay the
reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent,
which consent will not be unreasonably withheld.
(c) The
obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To
secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior
to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium on, if
any, or interest on, particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e) When
the Trustee incurs expenses or renders services after an Event of Default specified in clause (a)(8) or (a)(9) of Section 6.01
hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended
to constitute expenses of administration under any Bankruptcy Law.
Section 7.08. Replacement
of Trustee.
(a) A
resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.
(b) The
Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of
a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company
in writing. The Company may remove the Trustee if:
(1) the
Trustee fails to comply with Section 7.10 hereof;
(2) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a
custodian or public officer takes charge of the Trustee or its property; or
(4) the
Trustee becomes incapable of acting.
(c) If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of
the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
(d) If
a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(e) If
the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10
hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f) A
successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation
or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been
paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company’s obligations under Section 7.07 hereof will continue for the benefit of the retiring Trustee.
Section 7.09. Successor
Trustee by Merger, etc.
If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate trust business to another corporation, the successor corporation
without any further act will be the successor Trustee.
Section 7.10. Eligibility;
Disqualification.
There will at all times be
a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal
or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published
annual report of condition.
Section 7.11. [Reserved].
Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option
to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time,
at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal
Defeasance and Discharge.
Upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this 0 Section 8.02, the Company and each of the Guarantors will, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations
with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter,
“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter
be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred
to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and
this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same),
except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the
rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium on, if any, interest on, such Notes
when such payments are due from the trust referred to in Section 8.04 hereof;
(2) the
Company’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof;
(3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations in
connection therewith; and
(4) this
Article 8.
Subject to compliance with
this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03. Covenant
Defeasance.
Upon the Company’s exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under the covenants
contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18 and 4.19 hereof and clause (4) of Section 5.01
hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes
will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding
Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and will 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 will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder
of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(3), (4), (5), (6) and (7) hereof will not constitute Events of Default.
Section 8.04. Conditions
to Legal or Covenant Defeasance.
In order to exercise either
Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal
firm or firm of independent public accountants, to pay the principal of, premium on, if any, and interest on the outstanding Notes on
the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the
Notes are being defeased to such stated date for payment or to a particular redemption date;
(2) in
the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that:
(A) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(B) since
the date of this Indenture, there has been a change in the applicable federal income tax law,
in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in
the case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no
Default or Event of Default shall have occurred and is continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness),
and the granting of Liens to secure such borrowings);
(5) such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to
which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound;
(6) the
Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; and
(7) the
Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05. Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06
hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in
respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest
but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in
this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be
the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment
to Company.
Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium on, if any, or interest
on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall
be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holder of such Note
will thereafter be permitted to 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, will thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published
once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a
date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent
is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees
will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium on, if any, or interest on, any Note following the reinstatement
of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
Article 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without
Consent of Holders of Notes.
Notwithstanding Section 9.02
of this Indenture, without the consent of any Holder of Notes, the Company, the Guarantors and the Trustee may amend or supplement this
Indenture, the Notes or the Note Guarantees:
(1) to
cure any ambiguity, defect or inconsistency;
(2) to
provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to
provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees by
a successor to the Company or such Guarantor pursuant to Article 5 or Article 10 hereof;
(4) to
make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder;
(5) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
(6) to
conform the text of this Indenture, the Notes or the Note Guarantees to any provision of the “Description of Notes” section
of the Offering Memorandum to the extent that such provision in that “Description of Notes” was intended to be a verbatim
recitation of a provision of this Indenture, the Notes or the Note Guarantees, which intent may be evidenced by an Officers’ Certificate
to that effect;
(7) to
evidence and provide for the acceptance and appointment of a successor trustee under this Indenture pursuant to the requirements hereof;
(8) to
conform to the “Description of the Notes” in the Offering Memorandum, as set forth in an officer’s certificate delivered
to the Trustee;
(9) to
provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date hereof;
(10) to
allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes and to release any Guarantor
from its Note Guarantee in accordance with the terms of this Indenture;
(11) to
convey, transfer, assign, mortgage or pledge as security for the Notes any property or assets in accordance with Section 4.12;
(12) to
make any amendment to the provisions of this Indenture relating to the form, authentication, transfer and legending of Notes; provided,
however, that:
(A) compliance
with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable
securities law; and
(B) such
amendment does not materially affect the rights of Holders to transfer Notes; or
(13) to
make any change that does not adversely affect the rights of any Holder in any material respect.
Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon
receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors
in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended
or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With
Consent of Holders of Notes.
Except as provided below in
this Section 9.02, the Company and the Trustee may amend or supplement this Indenture (including, without limitation, Section 3.09,
4.10 and 4.15 hereof) and the Notes and the Note Guarantees with the consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal
of, premium on, if any, or interest on, the Notes, except a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting
as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this
Section 9.02.
Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon
the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company and the Guarantors in the
execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated
to, enter into such amended or supplemental Indenture.
It is not necessary for the
consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver,
but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement
or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, will not, however,
in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes then outstanding voting as a single class may waive compliance in
a particular instance by the Company with any provision of this Indenture, the Notes or the Note Guarantees. However, without the consent
of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce
the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce
the principal of or change the fixed maturity of any Note, reduce the amount payable upon the redemption of any Note, or change the times
at which any Note may be redeemed or, once notice of redemption has been given, the time at which it must thereupon be redeemed (other
than a conditional notice of redemption as provided under Section 3.04 with respect to Sections 3.07, 3.09, 4.10 and 4.15 hereof);
(3) reduce
the rate of or change the time for payment of interest, including default interest, on any Note;
(4) waive
a Default or Event of Default in the payment of principal of, premium on, if any, or interest on, the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);
(5) make
any Note payable in money other than that stated in the Notes;
(6) make
any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, premium on, if any, or interest on, the Notes;
(7) waive
a redemption payment with respect to any Note (other than a payment required by Section 3.09, 4.10 or 4.15 hereof);
(8) release
any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture;
or
(9) impair
the right of any Holder of Notes to receive any principal payment or interest payment on such Holder’s Notes, on or after the Stated
Maturity thereof, or to institute suit for the enforcement of any such payment; or
(10) make
any change in the preceding amendment and waiver provisions.
Section 9.03. [Reserved]
Section 9.04. Revocation
and Effect of Consents.
Until an amendment, supplement
or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement
or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
Section 9.05. Notation
on or Exchange of Notes.
The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue
and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate
notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee
to Sign Amendments, etc.
The Trustee will sign any
amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until the
Board of Directors of the Company approves it. In executing any amended or supplemental indenture, the Trustee will be entitled to receive
and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section 12.04
hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture.
Article 10
NOTE GUARANTEES
Section 10.01. Guarantee.
(a) Subject
to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(1) the
principal of, premium, if any, on, and interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest on, the Notes, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and
(2) in
case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in
full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated
to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The
Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this Indenture.
(c) If
any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each
Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration
of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due
and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Section 10.02. Limitation
on Guarantor Liability.
(a) Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate
the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will
be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities
of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10,
result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
(b) To
the extent required by the Texas Pawnshop Act, the obligations under a Note Guarantee of any Guarantor subject to such provision of the
Texas Pawnshop Act will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such provision of the Texas Pawnshop Act, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations
of such other Guarantor, result in the obligations of such Guarantor under its Note Guarantee not resulting in a violation of the requirement
to maintain a minimum of net assets that are used or readily available for use in the business of such Guarantor pursuant to the Texas
Pawnshop Act.
Section 10.03. Execution
and Delivery of Note Guarantee.
To evidence its Note Guarantee
set forth in Section 10.01 hereof, each Guarantor hereby agrees that this Indenture (or a supplemental indenture in the form of Exhibit E
hereto) shall be executed by an Officer on behalf of such Guarantor.
Each Guarantor hereby agrees
that its Note Guarantee set forth in Section 10.01 hereof will remain in full force and effect notwithstanding the absence of the
endorsement of any notation of such Note Guarantee on the Notes.
If an Officer whose signature
is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates a Note, the Note Guarantee
with respect thereto will be valid nevertheless.
The delivery of any Note by
the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture
on behalf of the Guarantors.
In the event that any Restricted
Subsidiary is required by Section 4.17 hereof to guarantee the Notes, the Company will cause such Restricted Subsidiary to comply
with the provisions of Section 4.17 hereof and this Article 10.
Section 10.04. Guarantors
May Consolidate, etc., on Certain Terms.
(a) The
Parent will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Parent is the surviving
corporation), or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets
of the Parent, the Company and the Subsidiary Guarantors taken as a whole, in one or more related transactions, to another Person, unless:
(1) either:
(a) the Parent is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other
than the Parent) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or
existing under the laws of the United States, any state of the United States or the District of Columbia (including a limited liability
company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia);
(2) the
Person formed by or surviving any such consolidation or merger (if other than the Parent) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the obligations of the Parent under its Note Guarantee and the Indenture;
(3) immediately
after such transaction, no Default or Event of Default exists; and
(4) the
Parent or the Person formed by or surviving any such consolidation or merger (if other than the Parent), or to which such sale, assignment,
transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto
and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period (i) be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or
(ii) have had a Fixed Charge Coverage Ratio greater than the actual Fixed Charge Coverage Ratio for the Parent for such four-quarter
period.
(b) In
addition, the Parent will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to any other Person.
(c) Sections
10.04(a) and (b) will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between
or among the Parent and its Restricted Subsidiaries. Clauses (3) and (4) of Section 10.04(a) will not apply to (1) any
merger or consolidation of the Parent with or into one of its Restricted Subsidiaries for any purpose or (2) any consolidation, amalgamation
or merger of the Parent into or the sale, assignment, transfer, lease, conveyance or other disposition of all or part of the properties
and assets of the Parent to, any Guarantor, (3) the conversion of the Parent or any Restricted Subsidiary into a corporation, partnership,
limited partnership, limited liability company or trust organized or existing under the laws of the United States, any state thereof or
the District of Columbia, or (4) with or into an Affiliate solely for the purpose of reincorporating the Parent in another jurisdiction.
In addition, the Parent or any Restricted Subsidiary may change its name.
(d) Except
as otherwise provided in Section 10.05 hereof, no Subsidiary Guarantor may sell or otherwise dispose of all or substantially all
of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other
than the Company or another Guarantor, unless:
(1) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(2) either:
(A) subject
to Section 10.05 hereof, the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any
such consolidation or merger unconditionally assumes all the obligations of that Guarantor under its Note Guarantee, and this Indenture
on the terms set forth herein or therein, pursuant to a supplemental indenture in the form of Exhibit E; or
(B) such
sale or other disposition does not violate Section 4.10 hereof, and the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of this Indenture, including without limitation, Section 4.10 hereof.
(e) In
case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor.
Except as set forth in Articles
4 and 5 hereof, and notwithstanding clauses (2)(A) and (B) of Section 10.04(d), nothing contained in this Indenture or
in any of the Notes will prevent any consolidation or merger of a Subsidiary Guarantor with or into the Company or another Guarantor,
or will prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
Section 10.05. Releases.
(a) The
Note Guarantee of a Guarantor will automatically and unconditionally be released and discharged:
(1) with
respect to the Note Guarantee of a Subsidiary Guarantor, in connection with any dissolution of a Subsidiary Guarantor or a sale, exchange,
transfer, conveyance or other disposition of Capital Stock of that Subsidiary Guarantor by way of merger, amalgamation, consolidation,
dividend, distribution or otherwise or any sale or other disposition of all or substantially all of the assets of that Subsidiary Guarantor
or its direct or indirect parent entity to a Person that is not (either before or after giving effect to such transaction) the Company
or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate Section 4.10 and the Subsidiary Guarantor
ceases to be a Restricted Subsidiary of the Company as a result of the sale, exchange, transfer or other disposition.;
(2) upon
the release of a Guarantor’s Note Guarantee of the Company’s obligations under the Credit Agreement;
(3) if
the Company designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.19;
(4) Upon
Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance
with Article 11 hereof;
(5) as
described under Article 9;
(6) upon
the merger, amalgamation or consolidation of any Guarantor with and into the Company or another Guarantor or upon the liquidation of such
Guarantor, in each case, in compliance with the applicable provisions of the Indenture.
(b) In
connection with any release specified above, the Trustee will, at the request and expense of the Company, execute any documents reasonably
necessary in order to evidence or effect such release, discharge and termination in respect of such Guarantee in accordance with these
provisions, subject to customary protections and indemnifications. Neither the Company nor any Guarantor will be required to make a notation
on the Note to reflect any such release, termination or discharge. Each of the releases and amendments set forth above shall be effected
by the Trustee without any consent of the holders or any other action or consent on the part of the Trustee.
Any Guarantor not released
from its obligations under its Note Guarantee as provided in this Section 10.05 will remain liable for the full amount of principal
of, premium on, if any, and interest on, the Notes and for the other obligations of any Guarantor under this Indenture as provided in
this Article 10.
Article 11
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction
and Discharge.
This Indenture will be discharged
and will cease to be of further effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes
that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money
has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or
(b) all Notes
that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption
(or delivering such notice of redemption in accordance with the procedures of DTC) or otherwise or will become due and payable within
one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in amounts
as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes
not delivered to the Trustee for cancellation for principal of, premium on, if any, and interest on, the Notes to the date of maturity
or redemption;
(2) in
respect of subclause (b) of clause (1) of this Section 11.01, no Default or Event of Default has occurred and is continuing
on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit
and any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and the deposit
will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor
is a party or by which the Company or any Guarantor is bound (other than with respect to the borrowing of funds to be applied concurrently
to make the deposit required to effect such satisfaction and discharge and any similar concurrent deposit relating to other Indebtedness,
and in each case the granting of Liens to secure such borrowings);
(3) the
Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and
(4) the
Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or on the redemption date, as the case may be.
In addition, the Company must deliver an Officers’
Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction
and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will survive. In addition, nothing in this Section 11.01 will
be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this
Indenture.
Section 11.02. Application
of Trust Money.
Subject to the provisions
of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof 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,
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 Securities in accordance with Section 11.01 hereof 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 11.01 hereof; provided that if the Company has made any payment of principal of,
premium on, 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 Government Securities held by the Trustee or Paying Agent.
Article 12
MISCELLANEOUS
Section 12.01. [Reserved]
Section 12.02. Notices.
Any notice or communication
by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or by first class mail
(registered or certified, return receipt requested), email, facsimile transmission or overnight air courier guaranteeing next day delivery,
to the others’ address:
If to the Company and/or any Guarantor:
FirstCash, Inc.
1600 West 7th Street
Fort Worth, Texas 76102
Email:
notifylegal@firstcash.com
Attention: R. Douglas Orr
With a copy to:
Alston & Bird LLP
2200 Ross Avenue, Suite 2300
Dallas, Texas 75214
Attention: Stacie L. Cargill
If to the Trustee:
BOKF, NA
777 Main Street, Suite 3500
Fort Worth, TX 76102
Email: MBiere@bokf.com
Facsimile No.: (972) 581-8913
Attention: Corporate Department
The Company, any Guarantor
or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications
(other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile or
email; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication
to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or
any defect in it will not affect its sufficiency with respect to other Holders.
If a notice or communication
is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice
or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.
Section 12.03. [Reserved].
Section 12.04. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an
Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and
(2) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05. Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture must include:
(1) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a
statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(4) a
statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
Section 12.06. Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 12.07. No
Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator, stockholder,
partner, member or manager (or any equivalent thereof) of the Company or any Guarantor, as such, will have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal
securities laws.
Section 12.08. Governing
Law.
THE INTERNAL LAW OF THE STATE
OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No
Adverse Interpretation of Other Agreements.
This Indenture may not be
used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors.
All agreements of the Company
in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All
agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05 hereof.
Section 12.11. Severability.
In case any provision in this
Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
will not in any way be affected or impaired thereby.
Section 12.12. Counterpart
Originals.
The parties may sign any number
of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
Section 12.13. Table
of Contents, Headings, etc.
The Table of Contents, Cross-Reference
Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Dated as of February 21,
2024
| FirstCash
Holdings, Inc. |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| FirstCash, Inc. |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| FCFS
TN, Inc. |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| Cash
America East, Inc. |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| Cash
America Holding, Inc. |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
[Signature Page to Indenture]
| Cash
America, Inc. |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| Cash
America, Inc. of Illinois |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| Cash
America, Inc. of Louisiana |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| Cash
America, Inc. of North Carolina |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| Cash
America Management L.P. |
| |
|
| |
By:
Cash America Holding, Inc., its general partner |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
| |
|
| Cash
America of Missouri, Inc. |
| |
|
| By |
/s/
Rick L. Wessel |
| |
Name: |
Rick
L. Wessel |
| |
Title: |
Chief
Executive Officer |
[Signature Page to Indenture]
|
Cash America Pawn L.P. |
|
|
|
By: Cash America Holding, Inc., its general partner |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
Cash America West, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
Famous Pawn, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
FCFS CO, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
FCFS IN, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
FCFS KY, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
[Signature
Page to Indenture]
|
FCFS MO, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
FCFS NC, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
FCFS OK, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
FCFS SC, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
First Cash, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
[Signature
Page to Indenture]
|
Frontier Merger Sub, LLC |
|
|
|
By: FirstCash, Inc. (F/K/A First Cash Financial Services, Inc.), its sole member |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
Georgia Cash America, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
LTS, Incorporated |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
Pawn TX, Inc. |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
American First Finance, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
[Signature
Page to Indenture]
|
SMART Financial Intermediate, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
SMART Financial Investors, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
SMART Financial Operations, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
SMART Pawn and Jewelry of Texas, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
SMART Pawn First, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
SMART Pawn Dakotas, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
[Signature
Page to Indenture]
|
SMART Pawn Oklahoma, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
|
|
|
SMART Pawn North Carolina, LLC |
|
|
|
By |
/s/ Rick L. Wessel |
|
|
Name: Rick L. Wessel |
|
|
Title: Chief Executive Officer |
[Signature Page to Indenture]
|
BOKF, NA |
|
|
|
By: |
/s/ George F. Kubin |
|
Name: George F. Kubin |
|
Title: Senior Vice President |
[Signature Page to Indenture]
Exhibit A
[Face of Note]
CUSIP/CINS ____________
6.875% Senior Notes due 2032
No. ___
$____________
FIRSTCASH, INC.
promises to pay to [Cede &
Co.][___________________________________] or registered assigns, the principal sum of
_________________________________________________ DOLLARS [, or such other amount as set forth on the Schedule of Exchanges
of Interests in the Global Note attached hereto,] on March 1, 2032.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Dated: _______________
|
FIRSTCASH, INC. |
|
|
|
By: |
|
|
Name: |
|
Title: |
This is one of the Notes referred to
in the within-mentioned Indenture:
BOKF, NA, as Trustee
[Back of Note]
6.875% Senior Notes due 2032
[Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable
pursuant to the provisions of the Indenture]
[Insert the ERISA Legend pursuant to the provisions
of the Indenture]
Capitalized terms used herein
have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST.
FIRSTCASH, INC., a Delaware corporation (the “Company”), promises to pay or cause to be paid interest on the principal
amount of this Note at 6.875% per annum from February 21, 2024 until maturity. The Company will pay interest semi-annually in arrears
on March 1 and September 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each,
an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that, if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided further that the first Interest Payment Date shall be September 1, 2024. Notwithstanding the foregoing,
if an Interest Payment Date falls on a day that is not a Business Day, the related payment of interest will be made on the next succeeding
Business Day as if made on the date the payment was due, and no interest shall accrue for the intervening period. The Company will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at a rate that is 1% higher
than the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the same
rate to the extent lawful. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
(2) METHOD
OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the December 15 and June 15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect
to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Paying
Agent and Registrar within the City and State of New York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately
available funds will be required with respect to principal of, premium on, if any, and interest on, all Global Notes and all other Notes
the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin
or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING
AGENT AND REGISTRAR. Initially, BOKF, NA, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change
the Paying Agent or Registrar without prior notice to the Holders of the Notes. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.
(4) INDENTURE.
The Company issued the Notes under an Indenture dated as of February 21, 2024 (the “Indenture”) among the Company,
the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms,
and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the
Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.
(5) OPTIONAL
REDEMPTION.
(a) Except
pursuant to the following paragraphs, the Notes will not be redeemable at the Company’s option prior to March 1, 2027.
(b) At
any time prior to March 1, 2027, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount
of Notes issued under the Indenture, upon not less than 10 nor more than 60 days’ notice, at a redemption price equal to 106.875%
of the principal amount of the Notes redeemed, plus accrued and unpaid interest to, but not including, the date of redemption (subject
to the rights of Holders of Notes on the relevant record date to receive interest on the relevant Interest Payment Date), in an amount
not to exceed the net proceeds from an Equity Offering; provided that:
(1) at
least 60% of the aggregate principal amount of Notes originally issued under the Indenture (excluding Notes held by the Parent and its
Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and
(2) in
each case, the redemption occurs within 90 days after the closing of such Equity Offering.
(c) At
any time prior to March 1, 2027, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than
10 nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable
Premium as of, and accrued and unpaid interest to, but not including, the date of redemption, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant Interest Payment Date.
(c) The
Notes may be redeemed pursuant to Section 4.15(e) of the Indenture.
(e) On
or after March 1, 2027, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 10 nor
more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued
and unpaid interest on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month
period beginning on March 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive
interest on the relevant Interest Payment Date:
Year | |
Percentage | |
2027 | |
| 103.438 | % |
2028 | |
| 101.719 | % |
2029 and thereafter | |
| 100.000 | % |
Unless the Company defaults in the payment
of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption
date.
(6) MANDATORY
REDEMPTION. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE
AT THE OPTION OF HOLDER. Upon the occurrence of a Change of Control, the Company will be required to make a Change of Control Offer to
each Holder in accordance with Sections 3.09 and 4.15 of the Indenture. In connection with certain Asset Sales, the Company shall make
an Asset Sale Offer in accordance with Sections 3.09 and 4.10 of the Indenture.
Notwithstanding the foregoing,
in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Sale Offer, if Holders of not less than
90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer, the Company,
or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such
holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ prior notice, to redeem
all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each Holder (excluding any
early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest,
if any, thereon, to, but excluding, the date of such redemption.
(8) DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require
a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion
of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange
or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between
a record date and the next succeeding Interest Payment Date.
(9) PERSONS
DEEMED OWNERS. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights
under the Indenture.
(10) AMENDMENT,
SUPPLEMENT AND WAIVER. The Indenture, the Notes and the Note Guarantees may be amended or supplemented as provided in the Indenture.
(11) DEFAULTS
AND REMEDIES. In case an Event of Default (as defined in the Indenture) arising from certain events of bankruptcy or insolvency occurs
with respect to the Company, all outstanding Notes will become due and payable immediately without further action or notice. If any other
Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture.
(12) GUARANTEES.
The Company’s obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by the Guarantors from
time to time party to the Indenture.
(13) TRUSTEE
DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
(14) NO
RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator, stockholder, partner, member or manager (or any equivalent thereof)
of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes,
the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance
of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
(15) AUTHENTICATION.
This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
(17) CUSIP
NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders.
No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption,
and reliance may be placed only on the other identification numbers placed thereon.
(18) GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.
The Company will furnish to
any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
FirstCash, Inc.
1600 West 7th Street
Fort Worth, Texas 76102
Attention: R. Douglas Orr
ASSIGNMENT FORM
To assign this Note, fill
in the form below:
|
(I) or (we) assign and transfer this Note to: |
|
|
(Insert assignee’s legal name) |
|
(Insert assignee’s soc. sec. or tax I.D. no.) |
|
|
|
|
(Print or type assignee’s name, address and zip code) |
to transfer this Note on the books of the Company. The agent may substitute another to act for him. |
|
(Sign exactly as your name appears on the face of this Note) |
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
Option of Holder to Elect Purchase
If you want to elect to have
this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
¨ Section 4.10 | |
¨ Section 4.15 |
If you want to elect to have
only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$_______________
Date: _______________
|
Your Signature: |
|
|
(Sign exactly as your name appears
on the face of this Note) |
* Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to the Trustee).
Schedule
of Exchanges of Interests in the Global Note *
The following exchanges of
a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note
or Definitive Note for an interest in this Global Note, have been made:
Date of Exchange |
|
Amount of decrease in Principal Amount of this Global Note |
|
Amount of increase in Principal Amount of this Global Note |
|
Principal Amount of this Global Note following such decrease (or increase) |
|
Signature of authorized officer of Trustee or Custodian |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* This schedule should be included only if
the Note is issued in global form.
Exhibit B
FORM OF CERTIFICATE OF TRANSFER
FirstCash, Inc.
1600 West 7th Street
Fort Worth, Texas 76102
BOKF, NA
777 Main Street, Suite 3500
Fort Worth, TX 76102
Re: 6.875% Senior Notes
due 2032
Reference is hereby made to
the Indenture, dated as of February 21, 2024 (the “Indenture”), among FirstCash, Inc., as issuer (the “Company”),
the Guarantors party thereto and BOKF, NA, as trustee. Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________, (the
“Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________
(the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. ¨
Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant
to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act
of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest
or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2. ¨
Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive
Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904
under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or
(y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor
nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive
Note and in the Indenture and the Securities Act.
3. ¨
Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive Note
pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant
to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly
the Transferor hereby further certifies that (check one):
(a) ¨
such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) ¨
such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) ¨
such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) ¨
such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies
that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements
of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D
to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the
Indenture and the Securities Act.
4. ¨ Check
if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) ¨
Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) ¨ Check
if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive
Notes and in the Indenture.
(c) ¨ Check
if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements
contained herein are made for your benefit and the benefit of the Company.
|
[Insert Name of Transferor] |
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
ANNEX A TO CERTIFICATE OF TRANSFER
1. | The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (a) OR (b)]
|
(a) | ¨ |
a beneficial interest in the: |
(i) ¨ 144A
Global Note (CUSIP _________), or
(ii) ¨ Regulation
S Global Note (CUSIP _________), or
(iii) ¨ IAI
Global Note (CUSIP _________); or
| (b) | ¨ |
a Restricted Definitive Note. |
2. | After the Transfer the Transferee will hold: |
[CHECK ONE]
| (a) | ¨ |
a beneficial interest in the: |
(i) ¨ 144A
Global Note (CUSIP _________), or
(ii) ¨ Regulation
S Global Note (CUSIP _________), or
(iii) ¨ IAI
Global Note (CUSIP _________); or
(iv) ¨ Unrestricted
Global Note (CUSIP _________); or
| (b) | ¨ |
a Restricted Definitive Note; or |
| (c) | ¨ |
an Unrestricted Definitive Note, |
in accordance with the terms
of the Indenture.
Exhibit C
FORM OF CERTIFICATE OF EXCHANGE
FirstCash, Inc.
1600 West 7th Street
Fort Worth, Texas 76102
BOKF, NA
777 Main Street, Suite 3500
Fort Worth, TX 76102
Re: 6.875% Senior Notes
due 2032
(CUSIP _____)
Reference is hereby made to
the Indenture, dated as of February 21, 2024 (the “Indenture”), among FirstCash, Inc., as issuer (the “Company”),
the Guarantors party thereto and BOKF, NA, as trustee. Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
__________________________,
(the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby
certifies that:
1. Exchange of Restricted
Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted
Global Note
(a) ¨ Check
if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection
with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(b) ¨
Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
(c) ¨ Check
if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s
Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(d) ¨
Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange
of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) ¨ Check
if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange
of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will
continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive
Note and in the Indenture and the Securities Act.
(b) ¨
Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨
144A Global Note, ¨ Regulation S Global Note, ¨
IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for
the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance
with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities
Act.
This certificate and the statements
contained herein are made for your benefit and the benefit of the Company.
|
[Insert Name of Transferor] |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
Exhibit D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
FirstCash, Inc.
1600 West 7th Street
Fort Worth, Texas 76102
BOKF, NA
777 Main Street, Suite 3500
Fort Worth, TX 76102
Re: 6.875% Senior Notes
due 2032
Reference is hereby made to
the Indenture, dated as of February 21, 2024 (the “Indenture”), among FirstCash, Inc., as issuer (the “Company”),
the Guarantors party thereto and BOKF, NA, as trustee. Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed
purchase of $____________ aggregate principal amount of:
(a) ¨
a beneficial interest in a Global Note, or
(b) ¨
a Definitive Note,
we confirm that:
1. We
understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest
therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities
Act”).
2. We
understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to
the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified institutional
buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in
the form of this letter and an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global
Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser
that resales thereof are restricted as stated herein.
3. We
understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company
such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.
4. We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our
or its investment.
5. We
are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which
is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
You and the 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.
|
[Insert Name of Transferor] |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
Exhibit E
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this
“Supplemental Indenture”), dated as of ________________, among __________________ (the “Guaranteeing Subsidiary”),
a subsidiary of FirstCash, Inc. (or its permitted successor), a Delaware corporation (the “Company”), the Company,
the other Guarantors (as defined in the Indenture referred to herein) and BOKF, NA, as trustee under the Indenture referred to below (the
“Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an indenture (the “Indenture”), dated as of February 21, 2024 providing
for the issuance of 6.875% Senior Notes due 2032 (the “Notes”);
WHEREAS, the Indenture provides
that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant
to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture
on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01
of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration
of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary
and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof.
4. No
Recourse Against Others. No director, officer, employee, incorporator, stockholder, partner, member or manager (or any equivalent
thereof) of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under
the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
5. NEW
YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.
6. Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
7. Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
8. The
Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Company.
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: _______________,
|
[Guaranteeing Subsidiary] |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
FIRSTCASH, Inc. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
[Existing Guarantors] |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
BOKF, NA |
|
as Trustee |
|
|
|
By: |
|
|
|
Authorized Signatory |
v3.24.0.1
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
FirstCash (NASDAQ:FCFS)
Gráfica de Acción Histórica
De Abr 2024 a May 2024
FirstCash (NASDAQ:FCFS)
Gráfica de Acción Histórica
De May 2023 a May 2024