CORPORATE INSTALLMENT NOTE
WITH PREPAYMENT PROVISIONS
__________________________________, a corporation
(referred to as the Company), for value received, hereby promises to pay to
____________________________, a corporation (referred to as the Lender), or
registered assigns, the sum of ____________
____________________________ in the installments and
on the dates set forth below, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the principal office of ________________________________,
in __________________________________, ________________________, and to pay
interest (computed on the basis of a 360-day year of twelve 30-day months) on
the unpaid principal of this Note from ___________ at the rate of ______________
percent per annum, in like coin or currency at the above principal office of
__________________________, semiannually on _____________ and
__________________________ each year, until such principal shall have become
due and payable in ___________installments or otherwise as herein provided, and
at the rate of ______________________ percent per annum thereafter on any
overdue principal and any overdue prepayment charge, and, to the extent
permitted by applicable law, on any overdue interest.
SECTION ONE
GENERAL TERMS
As used in this Note, the terms Note and Notes are
intended to refer to one or more of the _______________ percent Promissory
Notes (of which this Note is one) due in installments payable on
__________________ in each of the years _______ to _____
___________________, inclusive, as the same may be
amended from time to time, consisting of the promissory notes issued by Company
in the aggregate principal amount of ___________________ pursuant to a Loan
Agreement dated __________, entered into between Company and Lender (the
Agreement), and any promissory note subsequently issued pursuant to the
provisions of any of the mentioned notes or of any subsequently issued notes.
SECTION TWO
EFFECT OF AGREEMENT
This Note is entitled to the benefits, and is
subject to the provisions, of the Agreement (including, without limitation, the
provisions of Section _________ of the Agreement relating to amendments and
waivers of provisions of the Agreement).
The definition of certain terms in the Agreement shall also be
applicable to such terms as are used in this Note. In case an event of default, as defined in the Agreement, shall
occur and be continuing, this Note may be declared due and payable in the manner
and with the effect provided in the Agreement.
SECTION THREE
FIXED PAYMENTS
Company covenants and agrees that there shall become
due and payable, and Company will pay, ___________________ aggregate principal
amount of the outstanding Notes on _________________ in each of the years _____________
to , inclusive. Each such payment shall
be made at the principal amount so to be paid together with accrued interest
thereon to the date fixed for such payment, and as otherwise provided in
Section Eight hereof.
SECTION FOUR
PREPAYMENTS WITH PREPAYMENT CHARGE
Company, at its election and subject to the giving
of notice as provided in Section Nine hereof, may prepay the outstanding Notes
at any time as a whole or from time to time in part in multiples of , at the
principal amount so to be prepaid, together with accrued interest thereon to
the date fixed for such prepayment, plus a prepayment charge equal to the
applicable percentage of the principal amount so to be prepaid, determined as
follows:
_________________________________________________.
Prior to _____________, Company shall not effect any
prepayment of the Notes under this Section, directly or indirectly, from the
proceeds of , or in anticipation of, the issuing or incurring of any
indebtedness having an interest cost to Company or an Affiliate of Company
(computed in accordance with generally accepted financial practice), or having
a net effective rate of interest, of less than __________ percent.
SECTION FIVE
PREPAYMENTS OF NOTES IN CONNECTION WITH RATIO OF
FUNDED INDEBTEDNESS TO NET RECEIVABLES
(A) Company
covenants and agrees that, whenever for any reason the aggregate Funded
Indebtedness of Company has exceeded _________________ percent of Consolidated
Net Receivables of Company and its Restricted Subsidiaries on the last day of
each quarterly accounting period of Company during any _______ consecutive
accounting periods, and such excess shall amount to _____________ or more on
the last day of the last such accounting period,
(1) Company
will promptly give notice to that effect by registered mail to each of the
holders of the outstanding Notes, addressed as provided in Section Nine hereof,
which notice shall state the amount (in this Section referred to as the Maximum
Prepayment) by which the aggregate Funded Indebtedness of Company exceeds
_________ percent of the Consolidated Net Receivables of Company and its
Restricted Subsidiaries (calculated to the nearest multiple of $1,000),
determined in each case as of the last day of the quarterly accounting period
of Company immediately preceding the date on which Company shall give such
notice, and shall invite the registered holders of the Notes to exercise the
option granted by Subdivision (2) of this Subsection (A); and
(2) at the
option of any registered holder of the Notes, exercised by written election
sent to Company by registered mail within _______ days after the mailing of
notice, Company within _________ days after the mailing of notice will prepay
(without any prepayment charge but with accrued interest on the amount so
prepaid to the date of prepayment) an amount of the principal then remaining
unpaid, (I) on the outstanding Notes held by holders electing prepayment
pursuant to this Subsection (A), and (II) on any outstanding Future Debt (as
defined below) held by holders electing prepayment pursuant to provisions with
respect thereto comparable to this Subsection (A), equal to the lesser of (x)
the aggregate unpaid principal amount of all the outstanding Notes and Future
Debt held by holders electing such prepayment, or (y) the balance of the
Maximum Prepayment remaining after deducting the amount which Company is, at
the expiration of the _____-day period, required to prepay, or shall have
prepaid within the _____-day period, on the outstanding Prior Notes (as defined
below) held by holders electing prepayment pursuant to provisions with respect
thereto comparable to this Subsection (A).
In case of any prepayment pursuant to this
Subsection (A), the amount so prepaid shall be applied to all the Notes and
Future Debt held by the holders electing such prepayment, pro rata (calculated
to the next higher or lower dollar) according to the respective unpaid
principal amounts thereof. Company
shall not be required to give any prior notice of any such prepayment of the
Notes (other than the notice provided for in Subdivision (1) of this Subsection
(A); but Company shall, within days
after making each such prepayment, give notice thereof by registered mail to
each of the holders of the outstanding Notes, addressed as provided in Section
Nine hereof, which notice shall state the aggregate amount which Company has
thus prepaid on the principal of the outstanding Notes and the date of such
prepayment. For the purposes of this
Section, the term Future Debt refers to any promissory notes or other evidence
of Indebtedness constituting Funded Indebtedness which Company may issue
hereafter. The term Prior Notes refers to (I) the promissory notes payment of
which has been assumed by Company, originally issued by the Predecessor
Corporation in the original aggregate principal amount of
_______________________ pursuant to _____________ certain Loan Agreements dated
as of ______________, between the Predecessor Corporation and each of ________
institutional investors, (II) the promissory notes payment of which has been
assumed by Company, originally issued by the Predecessor Corporation in the
original aggregate principal amount of
pursuant to ______________ certain Loan Agreements dated as of
__________________ between the Predecessor Corporation and each of _________
institutional investors, (III) the promissory notes payment of which has been
assumed by Company, originally issued by the Predecessor Corporation in the
original aggregate amount of __________ pursuant to ___________ certain Loan
Agreements dated as of ____________________ between the Predecessor Corporation
and each of __________ institutional investors, as such promissory notes and
loan agreements have heretofore been and may hereafter be amended, and any
promissory notes subsequently issued pursuant to the provisions of any of such
promissory notes or subsequently issued promissory notes.
(B) If and
whenever
(1) the
aggregate Funded Indebtedness of Company has exceeded ______ percent of
Consolidated Net Receivables of Company and its Restricted Subsidiaries on the
last day of each quarterly accounting period of Company during any ________
consecutive such quarterly accounting periods because of a material curtailment
of such receivables attributable to restrictions on consumer credit terms
imposed by the Federal Reserve Board or any other governmental agency (federal,
state, or municipal) having jurisdiction, and such excess shall amount to
_______ or more on the last day of the last such accounting period,
(2) Company
shall have given the notice required by Subsection (A) (1) of this Section, and
(3) the
Maximum Prepayment specified in the mentioned notice shall exceed the aggregate
amount, if any, which Company shall have been required to prepay on the Notes
pursuant to Subsection (A) of this Section and on the Prior Notes and the
Future Debt pursuant to provisions with respect thereto comparable to
Subsection (A) of this Section (such excess being referred to below as the
Prepayment Excess),
Company shall have the right, at its election and
subject to the giving of notice as provided in Section Nine, to prepay, without
any prepayment charge, an amount of principal then remaining unpaid on all the
outstanding Notes not in excess of (x) that amount which bears the same
relation to (y) the Prepayment Excess (reduced by the Reduction Factor defined
below) as (a) the aggregate unpaid principal amount of all the then outstanding
Notes bears to (b) the aggregate unpaid principal amount of all the then
outstanding Funded Indebtedness of Company (reduced by the same Reduction
Factor), provided, however, that the aggregate amount of any such prepayment to
be made on all the outstanding Notes shall be at least ____________. For the purposes of the foregoing sentence,
the Reduction Factor shall be the excess of (I) the aggregate of the amounts
which Company would have been required to prepay on Funded Indebtedness other
than the Notes in order to effect a prepayment thereon (whether or not
permitted by the terms thereof) proportionate to the amount of the prepayment
actually made on the Notes at the time of each preceding prepayment of Notes
pursuant to this Subsection (B) over (II) the aggregate of the amounts which
Company has actually applied to the prepayment of such Funded Indebtedness
other than the Notes at or within ______ days after each preceding prepayment
of the Notes pursuant to this Subsection (B).
For the purposes of the two preceding sentences, outstanding Notes and
outstanding Funded Indebtedness shall be computed as of a date within _______
business days prior to the date on which Company shall give the above-mentioned
notice of prepayment pursuant to Section Nine.
In making such computation, there shall be excluded the principal amount
of any Notes and the principal amount of any other Funded Indebtedness which is
to be prepaid by Company within ______ days after the date of computation.
The right of prepayment granted to Company by this
Subsection (B) shall be exercisable, and the notice of prepayment required by
Section Nine shall be given, no less than
days and not more than __________ days after Company shall give the
notice required by Section (A) (1) of this Section. The election by Company to exercise the right of prepayment shall
be evidenced by a resolution of the Board, which shall state the basis on which
the Board has concluded that the circumstances referred to in Subdivision (1)
of this Subsection (B) exist. A copy of
the resolution shall be sent with the notice of prepayment pursuant to Section
Nine. In the case of any prepayment
pursuant to this Subsection (B), the amount so prepaid shall be applied pro
rata (calculated to the next higher or lower dollar) to all outstanding Notes
according to the respective unpaid principal amounts of the Notes.
SECTION SIX
PREPAYMENT OF NOTES IN CONNECTION WITH COMPLIANCE
WITH AGREEMENT
In the event that the Company furnishes to the
holder of the Note information reasonably satisfactory to the holder, based on
a good faith estimate of Company, that the Company will be in default under
either Subsection (A) or (B) of Section ____ of the Agreement within ________
days thereafter, Company shall have the right, at its election and subject to the
giving of notice as provided in Section Nine, to prepay, without any prepayment
charge, an amount of the principal then remaining unpaid on all outstanding
Notes not in excess of the amount required to permit Company to comply with
Section _______ of the Agreement.
SECTION SEVEN
PREPAYMENT OF NOTES IN COMPLIANCE WITH GUARANTY
In the event that _______________ is required to
cause Company to prepay part of the principal then remaining unpaid on all
outstanding Notes pursuant to Section ______ of the Guaranty, Company shall
promptly give notice to that effect as provided in Section Nine hereof, which
notice shall state the amount so pre payable and shall specify a date for
prepayment not more than _________ days thereafter. Company shall prepay such amount without any prepayment charge on
such date.
SECTION EIGHT
APPLICATION OF PREPAYMENTS
In the case of each prepayment of less than the
entire unpaid principal amount of all outstanding Notes (other than any
prepayment pursuant to Section Five), the amount so prepaid shall be applied
pro rata (calculated to the next higher or lower dollar) to all outstanding
Notes according to the respective unpaid principal amounts thereof.
Amounts prepaid pursuant to Sections Four, Five,
Six, or Seven shall be credited against the last maturing installment or
installments of principal then remaining unpaid on the outstanding Notes.
SECTION NINE
NOTICE OF PREPAYMENT
Notice of each prepayment of this Note pursuant to
Section Four, Subsection (B) of Section Five, Section Six, or Section Seven
shall be sent to the registered holder hereof by registered mail no less than
_______ days or more than ______ days prior to the date fixed for such
prepayment at its address designated on the register maintained by Company.
SECTION TEN
OBLIGATION TO PREPAY AFTER NOTICE
On notice of any prepayment being given as described
above, there shall become due and payable, at the principal office of on the date specified in the notice, the
principal amount of this Note designated for prepayment with interest accrued
on the principal amount to the date fixed for prepayment plus the amount of the
prepayment charge, if any.
SECTION ELEVEN
EXCHANGE OF NOTES
The holder of any Note or Notes, at the holders
option, may, in person or by duly authorized attorney, surrender one or more of
the Notes for exchange at the principal office of , and, at the expense of
Company, receive in exchange therefor a new printed Note or Notes in the same
aggregate principal amount as the aggregate unpaid principal amount of the Note
or Notes so surrendered, each such new Note to be dated as of the date to which
interest has been paid on the Note or Notes so surrendered and to be in such
principal amount and payable to such person or persons, or registered assigns,
as the holder may designate in writing.
Each Note or Notes so surrendered for exchange for a new Note or Notes
payable to a person or persons other than the previously registered holder
shall be duly endorsed, or be accompanied by a written instrument of transfer
duly executed, by such holder or its attorney duly authorized in writing. No transfer or exchange of any such Note or
Notes shall be valid unless made in the above-described manner. _____________ days prior written notice of
the holders intention to make an exchange shall be given to Company.
SECTION TWELVE
LOST, ETC., NOTES
On receipt by Company of evidence satisfactory to it
of the loss, theft, destruction, or mutilation of this Note, and (in case of
loss, theft, or destruction) of indemnity satisfactory to it, and on reimbursement
to Company of all reasonable expenses incidental thereto, and on surrender and
cancellation of this Note, if mutilated, Company will make and deliver a new
Note of like tenor in lieu of this Note.
For the purposes of Section Four through Section Eight, inclusive, the
term outstanding Notes shall not include any Note in lieu of which a new Note
has been made and delivered by Company in accordance with the provisions of
this Section Twelve so long as any Notes are outstanding other than Notes in
lieu of which new Notes have been so made and delivered.
SECTION THIRTEEN
IMMUNITY OF STOCKHOLDERS, OFFICERS, AND DIRECTORS
Except as provided in the Guaranty, no recourse
shall be had for the payment of the principal of or the interest on this Note,
or for any claim based on the Note or otherwise in respect to the Note, against
any incorporator, stockholder, officer, or director, as such, past, present, or
future, of Company or of any predecessor or successor corporation, either
directly or through Company or otherwise, whether by virtue of any
constitution, statute, or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability being by the acceptance of this
Note and as part of the consideration for the issue of this Note expressly
waived and released. However, nothing
contained in this Note shall be taken to prevent recourse to and the
enforcement of the liability, if any, of any shareholder or any stockholder or
subscriber to capital stock on or in respect of shares of capital stock not
fully paid up.
SECTION FOURTEEN
GOVERNING LAW
This Note shall be governed by the laws of
__________________.
Dated:
______________________
_____________________________________
(Signature of Maker)
