EXHIBIT 4.5
R-2
CUSIP No. 892335 AJ 9
$402,500,000
TOYS "R" US, INC.
SENIOR NOTE DUE 2007
TOYS "R" US, INC., a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to The Bank of New
York, or registered assigns, the principal sum of FOUR HUNDRED AND TWO MILLION
AND FIVE HUNDRED THOUSAND DOLLARS ($402,500,000) on August 16, 2007 (such date
is hereinafter referred to as the "Maturity Date"), and to pay interest on said
principal sum from May 28, 2002 or from the next recent date to which interest
has been paid or duly provided for, quarterly in arrears on February 16, May 16,
August 16 and November 16 of each year (each such date, an "Interest Payment
Date"), commencing on August 16, 2002 initially at the rate of 6.25% per year up
to but excluding August 16, 2005 and at the Reset Rate thereafter until the
principal hereof shall have been paid or duly made available for payment and, to
the extent permitted by law, to pay interest, compounded quarterly, on any
overdue principal and premium, if any, and on any overdue installment of
interest at the rate per year of 6.25% up to but excluding the Reset Effective
Date and at the Reset Rate thereafter.
The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months and, except as provided in the Indenture (as defined below), the amount
of interest payable for any period shorter than a full quarterly period for
which interest is computed will be computed on the basis of the actual number of
days elapsed in such 90-day period. In the event that any Interest Payment Date
is not a Business Day, then payment of interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such Interest Payment Date. The interest installment so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Note (or one
or more predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest installment which shall be the fifteenth
calendar day prior to the relevant Interest Payment Date.
The principal of (and premium, if any) and the interest on
this Note shall be payable at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the records of the Trustee
or by wire transfer to an account appropriately designated by the Holder
entitled thereto.
1
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, senior and unsecured and will rank equal in right of
payment to all other senior unsecured obligations of the Company.
2
IN WITNESS WHEREOF, the Company has caused this Note to be
executed.
Dated: May 28, 2002
TOYS "R" US, INC., as Issuer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President - Chief
Executive Officer
Attest:
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President - Treasurer
3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Authorized Signatory
Dated May 28, 2002
4
REVERSE OF NOTE
1. Indenture.
This Note is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Notes"), issued and to be
issued in one or more series under and pursuant to an Indenture dated as of May
28, 2002 (the "Base Indenture") between the Company and The Bank of New York, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), as supplemented by a First Supplemental Indenture, dated as of May
28, 2002 (the "First Supplemental Indenture" and together with the Base
Indenture as so supplemented, the "Indenture") between the Company and the
Trustee, to which Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Notes. This series of Securities is limited in aggregate principal amount as
specified in such First Supplemental Indenture.
To the extent that any terms or other provisions of this Note
differ from or are inconsistent with those contained in the Indenture, the
Indenture shall control.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
2. Ranking.
The Notes shall constitute the senior, unsecured and
unsubordinated debt obligations of the Company and shall rank equally in right
of payment with all other existing and future senior, unsecured and
unsubordinated obligations of the Company.
3. Registered Holder as Absolute Holder
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any Paying Agent and the Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any Paying Agent nor any Registrar shall be affected by any
notice to the contrary.
4. Pledge.
Upon initial issuance, the Notes shall be pledged to the
Collateral Agent for the benefit of the Company, pursuant to the terms of the
Pledge Agreement, as collateral to secure the obligations of the Holders of
Normal Units to purchase the Common Stock under the Purchase Contracts in
accordance with the terms of the Purchase Contract Agreement. The Notes may be
transferred, in whole or in part, only in accordance with the terms and
conditions set forth in the Indenture, the Pledge Agreement and the Purchase
Contract Agreement. To the fullest extent permitted by law, any transfer or
purported transfer of any Note not made in accordance with the Indenture shall
be null and void. Subject to this Section, the Notes shall be freely
transferable.
5
5. Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
6. Tax Event Redemption.
The Notes are subject to a Tax Event Redemption as specified
in Article 11 of the Base Indenture and Article III of this First Supplemental
Indenture. If a Tax Event occurs, the Company, may at its option, and upon not
less than 30 calendar days nor more than 60 calendar days' notice to the Holders
of the Notes, redeem all outstanding Notes in whole, but not in part at the
Redemption Price equal to, for each Note, the Redemption Amount, plus accrued
and unpaid interest to the Redemption Date. Upon the occurrence of a Tax Event
Redemption after the successful remarketing of the Notes, the Redemption Price
will be payable in cash to the Holders of any outstanding Notes. The Redemption
Amount, plus any accrued and unpaid interest, if any, to the Redemption Date,
shall be paid prior to 12:00 noon (New York City time) on the Tax Event
Redemption Date. The payment shall be made to each Holder by check or wire
transfer in immediately available funds, at such place and to such account as
may be designated by each such Holder.
7. Remarketing.
The Company shall engage a nationally recognized investment
bank (the "Remarketing Agent") to sell, pursuant to a Remarketing Agreement to
be entered into between the Company and the Remarketing Agent the Notes of
Holders of Normal Units, other than Holders that have elected not to participate
in the remarketing pursuant to the procedures set forth in paragraph (l) below,
and holders of Separate Notes that have elected to participate in the
remarketing pursuant to the procedures set forth in Section 8.1(m) of the First
Supplemental Indenture and in Section 4.5(f) of the Pledge Agreement.
Not later than 15 nor more than 30 calendar days prior to each
of the Initial Remarketing Date and the first day of any Subsequent Remarketing
Period, the Company shall request the Clearing Agency (or any successor Clearing
Agency), to notify its Beneficial Owners or Depositary participants holding
Normal Units or Separate Notes of the impending remarketing. On or before the
seventh Business Day prior to each of the Initial Remarketing Date and the first
day of any Subsequent Remarketing Period the Company shall give Holders of
Normal Units and holders of Separate Notes notice of the remarketing (the
"Remarketing Notice") in a daily newspaper in the English language of general
circulation in The City of New York, which is expected to be The Wall Street
Journal, that includes the specific U.S. Treasury security or securities
(including the CUSIP number and/or the principal terms of such Treasury security
or securities), that must be delivered by Holders of Normal Units that elect not
to participate in the remarketing pursuant to Section 8.1(l).
The Purchase Contract Agent shall notify, by 10:00 a.m. (New
York City time) on the third Business Day preceding each of the Initial
Remarketing Date or the first day of any Subsequent Remarketing Period, as the
case may be, the Remarketing Agent and the Collateral Agent of the aggregate
number of Notes of Normal Unit Holders to be remarketed. The Collateral Agent
shall notify, no later than 10:00 a.m. (New York City time) on the third
Business Day immediately preceding (i) the Initial Remarketing Date or (ii) the
first day of any Subsequent Remarketing Period, as the case may be, pursuant to
the terms of the Pledge Agreement, the Remarketing Agent of the aggregate number
of Separate Notes to be remarketed.
6
Upon receipt of such notice from the Purchase Contract Agent
and the Collateral Agent, the Remarketing Agent will on the Initial Remarketing
Date or a Subsequent Remarketing Date, as the case may be, use its reasonable
best efforts to (i) establish a rate of interest that, in the opinion of the
Remarketing Agent, will, when applied to the Notes (assuming, even if not true,
that all of the Notes are included in the remarketing), enable the then current
aggregate market value of the Notes to have a value equal to at least 100.25% of
the Remarketing Value (as defined in the Purchase Contract Agreement) as of the
Remarketing Date, provided that in no event shall the Reset Rate be less than
the initial rate borne by the Notes, and (ii) sell such Notes on such date at a
price equal to at least 100.25% of the Remarketing Value. In the case of a
successful remarketing prior to the third Business Day prior to the Stock
Purchase Date, the Remarketing Agent will use the proceeds from a successful
remarketing to purchase in open market transactions or at Treasury auction the
appropriate U.S. Treasury securities (the "Agent-purchased Treasury
Consideration") with the CUSIP numbers, if any, selected by the Remarketing
Agent, described in clauses (a) and (b) of the definition of the Remarketing
Value related to the Notes of Holders of Normal Units that were remarketed.
On or prior to the third Business Day immediately following
the Initial Remarketing Date or a Subsequent Remarketing Date (other than a
Subsequent Remarketing date that occurs on the third Business Day prior to the
Stock Purchase Date), as the case may be, the Remarketing Agent shall deliver
such Agent-purchased Treasury Consideration to the Purchase Contract Agent,
which shall thereupon deliver such Agent-purchased Treasury Consideration to the
Collateral Agent. The Collateral Agent, for the benefit of the Company, will
thereupon apply such Agent-purchased Treasury Consideration, in accordance with
the Pledge Agreement, to secure such Holders' obligations under the Purchase
Contracts.
In the case of a successful remarketing on the third Business
Day prior to the Stock Purchase Date, the Remarketing Agent will cause the
proceeds from such successful remarketing to be remitted on the Remarketing
Settlement Date, along with notification thereof, to the Purchase Contract Agent
for the benefit of the Holders of such remarketed Notes, which shall thereupon
deliver such cash proceeds to the Collateral Agent. The Collateral Agent, for
the benefit of the Company, will thereupon apply such cash proceeds, in
accordance with the Pledge Agreement, to secure such Holders' obligations under
the Purchase Contracts.
In connection with any successful remarketing, the Remarketing
Agent will deduct as a remarketing fee an amount not exceeding 25 basis points
(.25%) of the total proceeds from the remarketing (the "Remarketing Fee").
The Remarketing Agent will remit (1) the portion of the
proceeds from the remarketing attributable to the Separate Notes to the holders
of Separate Notes that were remarketed and (2) the remaining portion of the
proceeds, in each case, less those proceeds used to purchase the Agent-purchased
Treasury Consideration, to the Holders of the Normal Units that were remarketed,
all determined on a pro rata basis, in each case, on or prior to the third
Business Day following the Initial Remarketing Date or a Subsequent Remarketing
Date, as the case may be.
7
Holders whose Notes are so remarketed will not otherwise be
responsible for the payment of any Remarketing Fee in connection therewith. If
such successful remarketing is consummated after 4:30 p.m. (New York City time)
on such Remarketing Date and, despite using its commercially reasonable efforts,
the Remarketing Agent cannot cause the applications of the proceeds specified
above to occur on such Remarketing Date, then the Remarketing Agent may make
such applications and remittances on the next succeeding Business Day.
If, despite its reasonable best efforts, the Remarketing Agent
cannot establish a Reset Rate on the Initial Remarketing Date so as to allow the
Remarketing Agent to remarket the Notes offered for remarketing on such date at
a price equal to at least 100.25% of the Remarketing Value, the Remarketing
Agent will attempt to establish a Reset Rate meeting these requirements on each
of the three Business Day periods immediately preceding each of June 16, 2005,
July 14, 2005 and on the three Business Day period ending on and including the
third Business Day preceding the Stock Purchase Date (each, a "Subsequent
Remarketing Period").
If the Remarketing Agent cannot remarket the Notes included in
the remarketing on the Initial Remarketing Date or during any Subsequent
Remarketing Period at a price equal to at least 100.25% of the Remarketing Value
or the Remarketing Agent has determined that the remarketing may not be
commenced or consummated pursuant to applicable law, the remarketing will be
deemed to have failed (each, a "Terminated Remarketing Period"). If, in spite of
using its reasonable best efforts, the Remarketing Agent fails to remarket the
Notes underlying the Normal Units at at least 100.25% of the Remarketing Value
in accordance with the terms of the Pledge Agreement by 4:00 p.m. (New York City
time) on the third Business Day immediately preceding the Stock Purchase Date,
or the Remarketing Agent has determined that the remarketing may not be
commenced or consummated pursuant to applicable law, the "Last Failed
Remarketing" will be deemed to have occurred.
In the event of a Last Failed Remarketing and the Notes have
not been earlier redeemed pursuant to a Tax Event Redemption, the Remarketing
Agent shall determine the Reset Rate that shall apply to the Notes held by the
Holders of Normal Units that elected not to participate in the remarketing and
Holders of Separate Notes according to the following method, provided that in no
event shall the Reset Rate be less than the initial rate borne by the Notes and
will not exceed the maximum rate permitted by state usury laws and other
applicable laws. In such event, the Remarketing Agent will take the average of
the interest rates quoted to it by three nationally recognized investment banks
selected by the Company, which are underwriters or dealers in debt securities
similar to the Notes, that in their judgment reflects an accurate market rate of
interest applicable to the Notes at that time such that they would, after such
resettings, trade at par. Following receipt of these quotes, the Remarketing
Agent will have the right, in its sole judgment, to either recalculate the
average based on only two of the quoted interest rates if one of the three
quotes, in the Remarketing Agent's sole discretion, did not reflect market
conditions or, alternatively, determine a consensus among the investment banks
rather than a strict mathematical average by taking into account all relevant
qualitative and quantitative factors. These factors may include, but shall not
limited to, maturity of the Notes, the credit rating and credit risk of the
Company and companies of similar industries, the then yield to maturity of the
Notes and the state of the markets for primary and secondary sales of similar
debt securities.
8
If a Terminated Remarketing Period occurs, the Remarketing
Agent will, pursuant to the Remarketing Agreement, promptly advise the Trustee,
the Purchase Contract Agent, the Collateral Agent, the Company and the
Depositary that a Terminated Remarketing Period has occurred. The Company will
cause a notice of any Terminated Remarketing Period, the Last Failed Remarketing
and the Reset Rate to be published not later than the fourth Business Day
following the Initial Remarketing Date or a Subsequent Remarketing Date and the
date of the Last Failed Remarketing, as the case may be, in a daily newspaper in
the English language of general circulation in The City of New York, which is
expected to be The Wall Street Journal. The Company will also release this
information by means of Bloomberg and Reuters newswire or, if not available, by
similar means.
With respect to any Notes which constitute part of Normal
Units which are subject to the Last Failed Remarketing, the Collateral Agent for
the benefit of the Company reserves all of its rights as a secured party with
respect thereto and, subject to applicable law may, among other things,
foreclose on and retain such Notes for the benefit of the Company and permit the
Company to cause the Notes to be sold or to retain and cancel such Notes, in
either case, in full satisfaction of such Holders' obligations under the
Purchase Contracts; provided, that if upon the Last Failed Remarketing, the
Collateral Agent delivers the Notes to the Company in full satisfaction of the
Holder's obligation under the Purchase Contract, any accrued and unpaid interest
on such Notes will become payable by the Company to the Agent for payment to the
Holder of the Normal Units to which such Notes relate. Such payment will be made
by the Company on or prior to 5:00 p.m. (New York City time) on the Stock
Purchase Date in cash of the United States by certified or cashier's check or
wire transfer in immediately available funds payable to or upon the order of the
Purchase Contract Agent.
A Holder of Normal Units may elect not to participate in the
remarketing and retain the Notes underlying such Units by (A) delivering written
notice to the Purchase Contract Agent, substantially in the form of Exhibit D
(including the CUSIP number and/or the principal terms of such security or
securities) attached to the Purchase Contract Agreement, at any time, stating
that the Holder has transferred and delivered the specific U.S. Treasury
security or securities identified by the Purchase Contract Agent that constitute
the U.S. Treasury securities described in clauses (a) and (b) of the definition
of Remarketing Value relating to the retained Notes (the "Opt-out Treasury
Consideration") to the Purchase Contract Agent and (B) by delivering such
Opt-out Treasury Consideration to the Purchase Contract Agent, provided that
such Holder may not make this election after 10:00 a.m. (New York City time) (i)
on the fourth Business Day immediately preceding the Initial Remarketing Date
until the Business Day immediately following such Initial Remarketing Date, (ii)
on the fourth Business Day preceding the first day of the Subsequent Remarketing
Period ending June 16, 2005 or July 14, 2005 until the Business Day immediately
following such Subsequent Remarketing Period and (iii) the tenth Business Day
preceding the Stock Purchase Date. Upon receipt thereof by the Purchase Contract
Agent, the Purchase Contract Agent shall deliver such Opt-out Treasury
Consideration to the Collateral Agent. The Collateral Agent will hold Opt-out
Treasury Consideration in an account separate from the Collateral Account. On
the Remarketing Settlement Date, the Collateral Agent, for the benefit of the
Company, shall thereupon transfer to the Collateral Account such Opt-out
Treasury Consideration to secure such Normal Units Holder's obligations under
their applicable Purchase Contracts constituting a part of the Holder's Normal
Units in substitution for the Pledged Notes and to fund the quarterly interest
payment due to such Holders on the Stock Purchase Date and deliver the
applicable Notes to these Holders. On the first Business Day immediately
following the Terminated Remarketing Period, the Collateral Agent, will transfer
the Opt-out Treasury Consideration to the Purchase Contract Agent and the
Purchase Contract Agent will transfer promptly such Opt-out Treasury
Consideration to the appropriate Holders. A Holder that does not so deliver the
Opt-out Treasury Consideration pursuant to this paragraph (n) shall be deemed to
have elected to participate in the remarketing.
9
A Holder of Separate Note(s) may elect to participate in the
remarketing by delivering its Separate Notes along with notice of its election
substantially in the form of Exhibit B of the Indenture to the Collateral Agent
not later than 10:00 a.m. (New York City time) on (i) the fourth Business Day
immediately preceding the Initial Remarketing Date until the Business Day
immediately following such Initial Remarketing Date, (ii) on the fourth Business
Day immediately preceding the first day of the Subsequent Remarketing Period
ending June 16, 2005 or July 14, 2005 until the Business Day immediately
following such Remarketing Period, or (iii) the tenth Business Day immediately
preceding the Stock Purchase Date. The Collateral Agent will hold these Notes in
an account separate from the Collateral Account pursuant to the Pledge
Agreement. Holders of Separate Notes that have elected previously to have their
Separate Notes remarketed will have the right to withdraw that election prior to
10:00 a.m. (New York City Time) on (i) the fourth Business Day immediately
preceding the Initial Remarketing Date; (ii) the fourth Business Day immediately
preceding the first day of the Subsequent Remarketing Period ending June 16,
2005 or July 14, 2005 until the Business Day immediately following such
Remarketing Period, or (iii) the tenth Business Day immediately preceding the
Stock Purchase Date. Within three Business Days following (A) the applicable
Remarketing Date, if the remarketing was successful, the Remarketing Agent will
notify the Collateral Agent of the successful remarketing and request that the
Separate Notes be delivered to the purchasers thereof, and (B) either a
Terminated Remarketing Period or a Last Failed Remarketing, the Collateral Agent
will return the Separate Notes to their Holders.
In accordance with the Depositary's normal procedures, on the
Remarketing Settlement Date or the Purchase Contract Date, as applicable, the
transactions described above with respect to such Note tendered for purchase and
sold in a successful remarketing shall be executed through the Depositary, and
the accounts of the respective Depositary participants shall be debited and
credited and such Notes delivered by book-entry as necessary to effect purchases
and sales of such Notes. The Depositary shall make payment in accordance with
its normal procedure; provided that, the procedures set forth herein, including
provisions for payment by purchasers of the Notes in the successful remarketing,
shall be subject to modification to the extent required by the Depositary or if
the book-entry system is no longer available for the Notes at the time of the
remarketing, to facilitate the remarketing of the Notes in certified form, and
shall provide for the authentication and delivery of Notes in a principal amount
equal to the unremarketed portion of such Notes. In addition, the Remarketing
Agent may modify, the settlement procedures set forth herein in order to
facilitate the settlement process.
10
If any Holder of Notes selling Notes in the remarketing fails
to deliver such Notes, the direct or indirect Depositary participant of such
selling Holder and of any other Person who was to have purchase Notes in the
remarketing may deliver to any such other Person an aggregate principal amount
of Notes that is less than the aggregate principal amount of Senior Notes that
otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Notes to be so delivered shall be determined by such direct
or indirect Depositary participant, and delivery of such lesser aggregate
principal amount of Notes shall constitute good delivery.
Under the Remarketing Agreement, the Company, in its capacity
as issuer of the Notes, shall be liable for, and shall pay, any and all costs
and expenses incurred in connection with any remarketing, other than the
Remarketing Fee.
Pursuant to the Indenture, in the event of a successful
remarketing, the interest rate on all of the outstanding Notes (whether or not
included in the remarketing) shall be adjusted to the Reset Rate and, in the
event of a Last Failed Remarketing, the interest rate on all Separate Notes
shall be adjusted to the Reset Rate as set forth in the Indenture.
8. Default and Remedies.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Notes may be
declared, and upon such declaration shall become, due and payable (or, in
certain circumstances shall ipso facto become due and payable), in the manner,
with the effect and subject to the conditions provided in the Indenture. The
Indenture contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the outstanding Securities of each series at the
time outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
9. Amendment; Supplements.
Without the consent of any Holders of the Notes, the Company
and the Trustee may enter into one or more supplemental indentures supplementing
the Indenture, pursuant to Section 901 of the Base Indenture to, among other
things, add to the covenants of the Company for the benefits of the Holders of
the Notes, to add any additional Events of Default with respect to the Notes,
cure any ambiguity or defect, to correct or supplement any provision of the
Indenture which may be inconsistent with any other provision therein or herein,
or to make any other provisions or changes with respect to matters or questions
arising under the Indenture or this Note or make such other changes as are
specified and permitted under Section 901 of the Base Indenture. With respect to
provisions of the Notes and the Indenture other than those specified in the
preceding sentence pursuant to Section 901 of the Base Indenture, the Company
and the Trustee may enter into one or more supplemental indentures supplementing
the Indenture, pursuant to Section 902 of the Base Indenture, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the rights of the
Holders of the Notes, but only with the consent of the Holders of more than 50%
in aggregate principal amount of the Outstanding Notes, provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Note, among other things, (1) change the Stated Maturity of the
principal of or interest on the Notes, or reduce the principal amount thereof or
the rate of interest thereon, if any, reduce the amount payable in accordance
with the terms of the Notes upon a declaration of acceleration of Maturity
thereof, (2) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver of compliance with
certain provisions of the Indenture or certain defaults hereunder and their
consequences or (3) modify other provisions as set forth in the Base Indenture.
11
Upon the execution of any supplemental indenture under the
Indenture, the Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of the Indenture for all purposes and
every Holder of Notes theretofore or thereafter authenticated and delivered
thereunder shall be bound thereby.
10. Obligation Absolute and Unconditional.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
11. Tax Treatment.
The Company agrees, and by acceptance of beneficial ownership
interest in the Notes each beneficial holder of Notes will be deemed to have
agreed, (1) to treat itself as owner of the Notes for all tax purposes, (2) to
treat the Notes as indebtedness for all tax purposes, (3) to treat the Notes as
indebtedness that is subject to Treas. Reg. Sec. 1.1275-4 (the "Contingent
Payment Regulations") for U.S. federal income tax purposes and (4) to be bound
by the Company's determination of the "comparable yield" and "projected payment
schedule," within the meaning of the Contingent Payment Regulations, with
respect to the Notes for U.S. federal income tax purposes. A Holder of Notes may
obtain the amount of original issue discount, issue date, yield to maturity,
comparable yield and projected payment schedule by submitting a written request
for it to the Company at the following address: ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
12. Separability.
In case any one or more of the provisions contained in the
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then, to the extent permitted
by law, such invalidity, illegality or unenforceability shall not affect any
other provisions of the First Supplemental Indenture or of the Notes, but this
First Supplemental Indenture and the Notes shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
12
13. Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE, EACH NOTE AND EACH COUPON
SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
14. Copies of Indenture.
The Company will furnish to any Holder upon written request
and without charge a ▇▇▇ of the Indenture. Requests may be made to:
Toys "R" Us, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
15. Covenants.
The Notes are subject to the covenants set forth in the
Indenture. The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person or
sell, assign, convey or transfer or otherwise dispose of assets substantially as
an entirety to another Person, and requires that the Company comply with certain
further covenants. All such covenants and limitations are subject to a number of
important qualifications and exceptions.
16. Registration, Registration of Transfer and Exchange.
Reference is made to the Indenture for the provisions of the
Indenture applicable to the Notes with respect to their registration,
registration of transfer and exchange.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Date:
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Signature:
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Signature Guarantee:
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Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
(Sign exactly as your name appears on the other side of this Note)
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ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
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(cust) (minor)
Under Uniform Gifts to Minors Act
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(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
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