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CORESTAFF, INC.
TO
THE BANK OF NEW YORK
Trustee
INDENTURE
Dated as of ______________, 1997
_____% Convertible Subordinated Notes due 2004
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2
CORESTAFF, INC.
Reconciliation and Tie Between the Trust Indenture Act
of 1939 and Indenture dated as of ______________, 1997
Trust Indenture Act Section Indenture Section
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Trust Indenture
Act Section Indenture Section
------------------------- -------------------------
Section 310(a)(1) 8.9
Section (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.9
Section (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section (a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.9
Section (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8
8.10
8.11
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
6.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.7
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.5
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.5
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.5
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1(a)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1(b)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.9
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Trust Indenture
Act Section Indenture Section
------------------------- -------------------------
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.7
------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES . . . . . . . . . . . . . . . . . 9
SECTION 2.1. DESIGNATION AMOUNT AND ISSUE OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.2. FORM OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.3. DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.4. EXECUTION OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.5. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES: RESTRICTIONS
ON TRANSFER DEPOSITARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.6. MUTILATED, DESTROYED, LOST OR STOLEN NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.7. TEMPORARY NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.8. CANCELLATION OF NOTES PAID, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.9. CUSIP NUMBERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE III REDEMPTION OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.1. REDEMPTION PRICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.2. NOTICE OF TRUSTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.3. NOTICE OF REDEMPTION; SELECTION OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.4. PAYMENT OF NOTES CALLED FOR REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.5. NO SINKING FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.6. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.7. REDEMPTION AT OPTION OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE IV SUBORDINATION OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.1. AGREEMENT OF SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.2. PAYMENTS TO NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.3. SUBROGATION OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.4. AUTHORIZATION TO EFFECT SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.5. NOTICE TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.6. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.7. NO IMPAIRMENT OF SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.8. CERTAIN CONVERSIONS DEEMED PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.9. ARTICLE APPLICABLE TO PAYING AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.10. SENIOR INDEBTEDNESS ENTITLED TO RELY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT . . . . . . . . . . . . . . . . . . 29
SECTION 4.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 4.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.2. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.4. PROVISIONS AS TO PAYING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.5. CORPORATE EXISTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.6. STAY, EXTENSION AND USURY LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI NOTEHOLDERS' LISTS AND REPORTS BYTHE COMPANY AND THE TRUSTEE . . . . . . . . . . . . . . . . . . . 32
SECTION 6.1. NOTEHOLDERS' LISTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.2. PRESERVATION AND DISCLOSURE OF LISTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.3. REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.4. REPORTS BY COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.5. CALCULATION OF ORIGINAL ISSUE DISCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VII REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . 34
SECTION 7.1. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.2. PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.3. APPLICATION OF MONIES COLLECTED BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.4. PROCEEDINGS BY NOTEHOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.5. PROCEEDINGS BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.6. REMEDIES CUMULATIVE AND CONTINUING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.7. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY OF NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.8. STATEMENT BY OFFICERS AS TO DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.9. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.10. UNDERTAKING TO PAY COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VIII CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 8.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.3. NO RESPONSIBILITY FOR RECITALS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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SECTION 8.4. TRUSTEE, PAYING AGENTS, CONVERSION
AGENTS OR REGISTRAR MAY OWN NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 8.5. MONIES TO BE HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 8.6. COMPENSATION AND EXPENSES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 8.7. OFFICERS CERTIFICATE AS EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.8. CONFLICTING INTERESTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.9. ELIGIBILITY OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.11. ACCEPTANCE BY SUCCESSOR TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.12. SUCCESSION BY MERGER, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.13. LIMITATION ON RIGHTS OF TRUSTEE AS CREDITOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE IX CONCERNING THE NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.1. ACTION BY NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.2. PROOF OF EXECUTION BY NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.3. WHO ARE DEEMED ABSOLUTE OWNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.4. COMPANY-OWNED NOTES DISREGARDED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X NOTEHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.1. PURPOSES OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.2. CALL OF MEETINGS BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.3. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.4. QUALIFICATIONS FOR VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.5. REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.6. VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.7. NO DELAY OF RIGHTS BY MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XI SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.4. NOTATION ON NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL
INDENTURE TO BE FURNISHED TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 12.1. COMPANY MAY CONSOLIDATE ETC. ON CERTAIN TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 12.2. SUCCESSOR CORPORATION TO BE SUBSTITUTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
v
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SECTION 12.3. OPINION OF COUNSEL TO BE GIVEN TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 13.1. DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 13.2. DEPOSITED MONIES TO BE HELD IN TRUST BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.3. PAYING AGENT TO REPAY MONIES HELD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.4. RETURN OF UNCLAIMED MONIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.5. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XIV IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 14.1. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XV CONVERSION OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 15.1. RIGHT TO CONVERT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 15.2. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON STOCK
ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS . . . . . . . . . . . . . . . . . 59
SECTION 15.3. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.4. CONVERSION RATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.5. ADJUSTMENT OF CONVERSION RATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 15.6. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.7. TAXES ON SHARES ISSUED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 15.8. RESERVATION OF SHARES; SHARES TO BE FULLY PAID; COMPLIANCE
WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK . . . . . . . . . . . . . . . . . 70
SECTION 15.9. RESPONSIBILITY OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 15.10.NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE XVI MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 16.1. PROVISIONS BINDING ON COMPANY'S SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 16.2. OFFICIAL ACTS BY SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 16.3. ADDRESSES FOR NOTICES, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 16.4. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 16.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT;
CERTIFICATES TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 16.6. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 16.7. TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 16.8. NO SECURITY INTEREST CREATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 16.9. BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 16.10.TABLE OF CONTENTS, HEADINGS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
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SECTION 16.11.AUTHENTICATING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 16.12.EXECUTION IN COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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INDENTURE dated as of August ___, 1997, between CORESTAFF,
Inc., a Delaware corporation (hereinafter sometimes called the "Company," as
more fully set forth in Section 1.1), and The Bank of New York, a New York
banking corporation, as trustee hereunder (hereinafter sometimes called the
"Trustee," as more fully set forth in Section 1.1).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue of its___% Convertible Subordinated Notes due 2004
(hereinafter sometimes called the "Notes"), in an aggregate principal amount
not to exceed $207,000,000 and, to provide the terms and conditions upon which
the Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be
borne by the Notes, a form of assignment, a form of option to elect repayment
upon a Fundamental Change, a form of conversion notice and a certificate of
transfer to be borne by the Notes are to be substantially in the forms
hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and made available for delivery by
the Trustee or a duly authorized authenticating agent in the manner provided in
this Indenture, the valid, binding and legal obligations of the Company, and to
constitute these presents a valid agreement according to its terms, have been
done and performed, and the execution of this Indenture and the issue hereunder
of the Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are, and are to be, authenticated, issued and made available for
delivery, and in consideration of the premises and of the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit of the
respective holders from time to time of the Notes (except as otherwise provided
below), as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. The terms defined in this
Section 1.1 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.1. All other terms used in this Indenture that are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires) shall have the meanings assigned to such terms
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in said Trust Indenture Act and in said Securities Act as in force at the date
of the execution of this Indenture. The words "herein," "hereof," "hereunder,"
and words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other Subdivision. The terms defined in this
Article include the plural as well as the singular.
Affiliate: The term "Affiliate" of any specified Person shall
mean any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For the
purposes of this definition, "control,"when used with respect to any specified
Person means the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Applicable Price: The term "Applicable Price" shall mean (i)
in the event of a Fundamental Change in which the holders of the Common Stock
receive only cash, the amount of cash received by the holder of one share of
Common Stock and (ii) in the event of any other Fundamental Change, the
arithmetic average of the Closing Price for the Common Stock (determined as set
forth in Section 15.5(g)) during the ten (10) Trading Days (as defined in
Section 15.5(g)) prior to the record date for the determination of the holders
of Common Stock entitled to receive cash, securities, property or other assets
in connection with such Fundamental Change, or, if there is no such record
date, the date upon which the holders of the Common Stock shall have the right
to receive such cash, securities, property or other assets in connection with
the Fundamental Change.
Board of Directors: The term "Board of Directors" shall mean
the Board of Directors of the Company or a committee of such Board duly
authorized to act for it hereunder.
Business Day: The term "Business Day" means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking
institutions in The City of New York or the city in which the Corporate Trust
Office is located are authorized or obligated by law or executive order to
close or be closed.
Closing Price: The term "Closing Price" shall have the
meaning specified in Section 15.5(g).
Commission: The term "Commission" shall mean the Securities
and Exchange Commission.
Common Stock: The term "Common Stock" shall mean any stock of
any class of the Company which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to redemption
by the Company. Subject to the provisions of Section 15.6, however, shares
issuable on conversion of Notes shall include only shares of the class
designated as common
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stock of the Company at the date of this Indenture or shares of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption by the Company; provided,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
Company: The term "Company" shall mean CORESTAFF, Inc., a
Delaware corporation and, subject to the provisions of Article XII, shall
include its successors and assigns.
Conversion Rate: The term "Conversion Rate" shall have the
meaning specified in Section 15.4.
Corporate Trust Office: The term "Corporate Trust Office" or
other similar term, shall mean the principal office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office is, at the date as of which this Indenture is dated,
located at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000.
Current Market Price: The Term "Current Market Price has the
meaning specified in Section 15.5(g).
Custodian: The term "Custodian" shall mean The Bank of New
York, as custodian with respect to the Notes in global form, or any successor
entity thereto.
Default: The term "default" shall mean any event that is, or
after notice or passage of time, or both, would be, an Event of Default.
Depositary: The term "Depositary" means, with respect to the
Notes issuable or issued in whole or in part in global form, the person
specified in Section 2.5(d) as the Depositary with respect to such Notes, until
a successor shall have been appointed and become such pursuant to the
applicable provisions of this Indenture, and thereafter, "Depositary" shall
mean or include such successor.
Designated Senior Indebtedness: The term "Designated Senior
Indebtedness" means any particular Senior Indebtedness in which the instrument
creating or evidencing the same or the assumption or guarantee thereof (or
related agreements or documents to which the Company is a party) expressly
provides that such Senior Indebtedness shall be "Designated Senior
Indebtedness" for purposes of the Indenture (provided that such instrument,
agreement or other document may place limitations and conditions on the right
of such Senior Indebtedness to exercise the rights of Designated Senior
Indebtedness). If any payment made to any holder of any Designated Senior
Indebtedness or its Representative with respect to such Designated Senior
Indebtedness is
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rescinded or must otherwise be returned by such holder or Representative upon
the insolvency, bankruptcy or reorganization of the Company or otherwise, the
reinstated Indebtedness of the Company arising as a result of such rescission
or return shall constitute Designated Senior Indebtedness effective as of the
date of such rescission or return.
Distributed Securities: The term "Distributed Securities" has
the meaning specified in Section 15.5(d).
DTC: The term "DTC" shall mean The Depositary Trust Company.
Exchange Act: The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
Expiration Time: The term "Expiration Time" has the meaning
specified in Section 15.5(f).
Event of Default: The term "Event of Default" shall mean any
event specified in Section 7.1(a), (b), (c), (d) or (e).
Fair Market Value: The term "fair market value" has the
meaning specified in Section 15.5(g).
Fundamental Change: The term "Fundamental Change" means the
occurrence of any transaction or event in connection with which all or
substantially all the Common Stock shall be exchanged for, converted into,
acquired for or constitute the right to receive consideration (whether by means
of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) which is not all
or substantially all common stock which is (or, upon consummation of or
immediately following such transaction or event, will be) listed on a United
States national securities exchange or approved for quotation in the Nasdaq
National Market or any similar United States system of automated dissemination
of quotations or securities prices.
Fundamental Change Repurchase Date: The term "Fundamental
Change Repurchase Date" has the meaning specified in Section 3.7.
Fundamental Change Repurchase Price: The term "Fundamental
Change Repurchase Price" has the meaning specified in Section 3.7.
Global Note: The term "Global Note" shall mean any Note
evidenced in global form as described in Section 2.5(b).
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Indebtedness: The term "Indebtedness" means, with respect to
any Person, and without duplication, (a) all indebtedness, obligations and other
liabilities (contingent or otherwise) of such Person for borrowed money
(including obligations of the Company in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection agreements,
and any loans or advances from banks, whether or not evidenced by notes or
similar instruments) or evidenced by bonds, debentures, notes or similar
instruments (whether or not the recourse of the lender is to the whole of the
assets of such Person or to only a portion thereof) (other than any account
payable or other accrued current liability or obligation incurred in the
ordinary course of business in connection with the obtaining of materials or
services), (b) all reimbursement obligations and other liabilities (contingent
or otherwise) of such Person with respect to letters of credit, bank guarantees
or bankers' acceptances, (c) all obligations and liabilities (contingent or
otherwise) in respect of leases of such Person required, in conformity with
generally accepted accounting principles, to be accounted for as capitalized
lease obligations on the balance sheet of such Person and all obligations and
other liabilities (contingent or otherwise) under any lease or related document
(including a purchase agreement) in connection with the lease of real property
which provides that such Person is contractually obligated to purchase or cause
a third party to purchase the leased property and thereby guarantee a minimum
residual value of the leased property to the lessor and the obligations of such
Person under such lease or related document to purchase or to cause a third
party to purchase such leased property, (d) all obligations of such Person
(contingent or otherwise) with respect to an interest rate or other swap, cap or
collar agreement or other similar instrument or agreement or foreign currency
hedge, exchange, purchase or similar instrument or agreement, (e) all direct or
indirect guaranties or similar agreements by such Person in respect of, and
obligations or liabilities (contingent or otherwise) of such Person to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the kind described
in clauses (a) through (d), (f) any indebtedness or other obligations described
in clauses (a) through (d) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by such Person,
regardless of whether the indebtedness or other obligation secured thereby shall
have been assumed by such Person and (g) any and all deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements to,
any indebtedness, obligation or liability of the kind described in clauses (a)
through (f).
Indenture: The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented as herein provided, as so
amended or supplemented.
Issue Price: The term "Issue Price" means with respect to any
Note (or any portion thereof) _____% of the principal amount at maturity of
such Note (or such portion thereof).
NASD: The term "NASD" means the National Association of
Securities Dealers, Inc.
Note or Notes: The term "Note" or "Notes" shall mean any
Note or Notes, as the case may be, authenticated and delivered under this
Indenture, including any Global Note.
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Noteholder or holder: The terms "Noteholder" or "holder" as
applied to any Note, or other similar terms (but excluding the term "beneficial
holder"), shall mean any person in whose name at the time particular Note is
registered on the Note registrar's books.
Note register: The term "Note register" shall have the
meaning specified in Section 2.5.
Note registrar: The term "Note registrar" shall habe the
meaning specified in Section 2.5.
Notes Representatives: The term "Notes Representatives" means
Xxxxxx Xxxxxxx & Co. Incorporated, Alex, Xxxxx & Sons Incorporated, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs & Co., Xxxxxxxxxx
Securities and The Xxxxxxxx-Xxxxxxxx Company, Inc., as representatives of the
several underwriters in connection with the public offering of the Notes.
Officers' Certificate: The term "Officers' Certificate", when
used with respect to the Company, shall mean a certificate signed by both (a)
the President, the Chief Executive Officer Executive or Senior Vice President
or any Vice President (whether or not designated by a number or numbers or word
or words added before or after the title "Vice President") and (b) by the
Treasurer or any Assistant Treasurer or Secretary or any Assistant Secretary of
the Company.
Opinion of Counsel: The term "Opinion of Counsel" shall mean
an opinion in writing signed by legal counsel, who may be an employee of or
counsel to the Company, or other counsel acceptable to the Trustee.
Original Issue Discount: The term "Original Issue Discount" of
any Note means the difference between the Issue Price and the principal amount
at maturity of the Note as set forth on the face of the Note. For purposes of
this Indenture and the Notes, accrual of Original Issue Discount shall be
calculated on the basis of a 360-day year of twelve 30-day months, on a
semi-annual bond equivalent basis.
Outstanding: The term "outstanding", when used with reference
to Notes, shall, subject to the provisions of Section 9.4, mean, as of any
particular time, all Notes authenticated and made available for delivery by the
Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Notes, or portions thereof, for the redemption of which
monies in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have
been set aside and segregated in trust by the Company (if the Company shall
act as its own paying agent); provided, that if such Notes are to be
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redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article III, or provision satisfactory to
the Trustee shall have been made for giving such notice;
(c) Notes in lieu of which, or in substitution for which,
other Notes shall have been authenticated and delivered pursuant to the
terms of Section 2.6 unless proof satisfactory to the Trustee is presented
that any such Notes are held by bona fide holders in due course; and
(d) Notes converted into Common Stock pursuant to Article XV
and Notes deemed not outstanding pursuant to Article III.
Payment Blockage Notice: The term "Payment Blockage Notice"
has the meaning specified in Section 4.2.
Person: The term "Person" shall mean a corporation, an
association, a partnership, an individual, a joint venture, a joint stock
company, a trust, an unincorporated organization or a government or an agency
or a political subdivision thereof.
Predecessor Note: The term "Predecessor Note" of any
particular Note shall mean every previous Note evidencing all or a portion of
the same debt as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under Section 2.6 in
lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the lost, destroyed or stolen Note that is replaces.
Purchased Shares: The term "Purchased Shares" has the meaning
specified in Section 15.5(f).
record date: The term "record date" has the meaning specified
in Section 15.5(g).
Redemption Price: With respect to any Note, the term
"Redemption Price" means the applicable Redemption Price as set forth in such
Note, including any accrued Original Issue Discount referred to therein.
Reference Market Price: The term "Reference Market Price"
shall initially mean $___________ and in the event of any adjustment to the
Conversion Rate pursuant to Section 15.5, the Reference Market Price shall also
be adjusted so that the Reference Market Price after giving effect to any such
adjustment shall equal the Reference Market Price immediately prior to such
adjustment multiplied by a fraction, the numerator of which is the Conversion
Rate immediately prior to such adjustment and the denominator of which is the
Conversion Rate after such adjustment.
Registration Statement: The term "Registration Statement"
means the registration statement on Form S-3 (No. 333-315-09) filed by the
Company with the Commission.
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Representative: The term "Representative" means the (a)
indenture trustee or other trustee, agent or representative for any Senior
Indebtedness or (b) with respect to any Senior Indebtedness that does not have
any such trustee, agent or other representative, (i) in the case of such Senior
Indebtedness issued pursuant to an agreement providing for voting arrangements
as among the holder or owners of such Senior Indebtedness, any holder or owner
of such Senior Indebtedness acting with the consent of the required persons
necessary to bind such holders or owners of such Senior Indebtedness and (ii)
in the case of all other such Senior Indebtedness, the holder or owner of such
Senior Indebtedness.
Responsible Officer: The term "Responsible Officer", when
used with respect to the Trustee, shall mean an officer of the Trustee in the
Corporate Trust Office assigned and duly authorized by the Trustee to
administer its corporate trust matters.
Restricted Securities: The term "Restricted Securities" has
the meaning specified in Section 2.5.
Securities Act: The term "Securities Act" shall mean the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
Senior Indebtedness: The term "Senior Indebtedness" means the
principal of, premium, if any, interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowable as a claim in any such
proceeding) and rent payable on or in connection with, and all fees, costs,
expenses and other amounts accrued or due on or in connection with,
Indebtedness of the Company, whether outstanding on the date of this Indenture
or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by
the Company (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), unless in the case
of any particular Indebtedness the instrument creating or evidencing the same
or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to the Notes or expressly
provides that such Indebtedness is "pari passu" with or "junior" to the Notes.
Notwithstanding the foregoing, the term Senior Indebtedness shall not include
any Indebtedness of the Company to any subsidiary of the Company, a majority of
the voting stock of which is owned, directly or indirectly, by the Company. If
any payment made to any holder of any Senior Indebtedness or its Representative
with respect to such Senior Indebtedness is rescinded or must otherwise be
returned by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the company or otherwise, the reinstated Indebtedness of the
Company arising as a result of such rescission or return shall constitute
Senior Indebtedness effective as of the date of such rescission or return.
Subsidiary: The term "Subsidiary" means, with respect to any
person, (i) 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) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or
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indirectly, by such person or one or more of the other subsidiaries of that
person (or a combination thereof) and (ii) any partnership (a) the sole general
partner or managing general partner of which is such person or a subsidiary of
such person or (b) the only general partners of which are such person or of one
or more subsidiaries of such person (or any combination thereof).
Trading Day: The term "Trading Day" shall have the meaning
specified in Section 15.5(g)(v).
Trigger Event: The term "Trigger Event" shall have the
meaning specified in Section 15.5(h).
Trust Indenture Act: The term "Trust Indenture Act" shall
mean the Trust Indenture Act of 1939, as amended, as it was in force at the
date of execution of this Indenture, except as provided in Sections 11.3 and
15.6; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after the date hereof, the term "Trust Indenture Act" shall mean, to
the extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
Trustee: The term "Trustee" shall mean The Bank of New York
and its successors and any corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee at the time serving as successor trustee hereunder.
The definitions of certain other terms are as specified in
Section 2.5 and 3.5 and Article XV.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.1. DESIGNATION AMOUNT AND ISSUE OF NOTES. The
Notes shall be designated as "___% Convertible Subordinated Notes due 2004."
Notes not to exceed the aggregate principal amount at maturity of $180,000,000
(or $207,000,000 if the over-allotment option set forth in the Underwriting
Agreement dated _________, 1997 (as amended from time to time by the parties
thereto) by and between the Company and the Notes Representatives is exercised
in full) (except pursuant to Sections 2.5, 2.6, 3.3, 3.5 and 15.2 hereof) upon
the execution of this Indenture, or from time to time thereafter, may be
executed by the Company and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and make available for delivery said
Notes to or upon the written order of the Company, signed by its (a) President,
Executive or Senior Vice President or any Vice President (whether or not
designated by a number or numbers or word or words added before or after the
title "Vice President") and (b) Treasurer or Assistant Treasurer or its
Secretary or any Assistant Secretary, without any further action by the Company
hereunder.
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SECTION 2.2. FORM OF NOTES. The Notes and the Trustee's
certificate of authentication to be borne by such Notes shall be substantially
in the form set forth in Exhibit A, which is incorporated in and made a part of
this Indenture.
Any of the Notes may have such letters, numbers or other marks
of identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage.
Any Note in global form shall represent such of the
outstanding Notes as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Notes from time to time endorsed
thereon and that the aggregate amount of outstanding Notes represented thereby
may from time to time be increased or reduced to reflect transfers or exchanges
permitted hereby. Any endorsement of a Note in global form to reflect the
amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the
holder of such Notes in accordance with this Indenture.
Payment of any principal amount at maturity, Redemption Price,
Fundamental Change Repurchase Price and interest on any Note in global form
shall be made to the holder of such Note.
The terms and provisions contained in the form of Note
attached as Exhibit A hereto shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
SECTION 2.3. DATE AND DENOMINATION OF NOTES; PAYMENTS OF
INTEREST. The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount at maturity and integral multiples
thereof. Every Note shall be dated the date of its authentication and shall
bear interest from the applicable date in each case as specified on the face of
the form of Note attached as Exhibit A hereto. Interest on the Notes shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
The person in whose name any Note (or its Predecessor Note) is
registered at the close of business on any record date with respect to any
interest payment date shall be entitled to receive the interest payable on such
interest payment date, except (i) that the interest payable upon redemption
(unless the date of redemption is an interest payment date) will be payable to
the person to whom principal is payable and (ii) as set forth in the next
succeeding sentence. In the case of any Note (or portion thereof) which is
converted into Common Stock of the Company during the period from (but
excluding) a record date to (but excluding) the next succeeding interest
payment date
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either (i) if such Note (or portion thereof) has been called for redemption on a
redemption date which occurs during such period, or is to be redeemed in
connection with a Fundamental Change on a Fundamental Change Repurchase Date (as
defined in Section 3.7) which occurs during such period, the Company shall not
be required to pay interest on such interest payment date in respect of any such
Note or portion thereof pursuant to Section 3.4 or 3.7 hereof or (ii) if
otherwise, any Note (or portion thereof) submitted for conversion during such
period shall be accompanied by funds equal to the interest payable on such
succeeding interest payment date on the principal amount so converted. Interest
may, at the option of the Company, be paid either (i) by check mailed to the
address of the person entitled thereto as it appears in the Note register or
(ii) by transfer to an account maintained by such person located in the United
States; provided, however, that payments to DTC will be made by wire transfer of
immediately available funds to the account of DTC or its nominee. The term
"record date" with respect to any interest payment date shall mean the _______
or _________ preceding said _________ or ___________ , respectively.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any said _______ or ________ (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Noteholder on the relevant record date by virtue of his having been such
Noteholder; and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below;
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest to be paid on each Note and the
date of the payment (which shall be not less than twenty-five (25) days
after the receipt by the Trustee of such notice, unless the Trustee shall
consent to an earlier date), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for
the payment of such Defaulted Interest which shall be not more than fifteen
(15) days and not less than ten (10) days prior to the date of the proposed
payment and not less than ten (10) days after the receipt by the Trustee of
the notice payment. The Trustee shall promptly notify the Company at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage prepaid, to each Noteholder at this address as it
appears in the Note register, not less than ten (10) days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes
(or their respective Predecessor Notes) were
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registered at the close of business on such special record date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange and automated quotation system on which the Notes may
be listed or designated for issuance, and upon such notice as may be
required by such exchange and automated quotation system, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 2.4. EXECUTION OF NOTES. The Notes shall be
signed in the name and on behalf of the Company by the manual or facsimile
signature of its President, any Executive or Senior Vice President or any Vice
President (whether or not designated by a number or numbers or word or words
added before or after the title "Vice President") and attested by the manual or
facsimile signature of its Secretary or any of its Assistant Secretaries (which
may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise). Only such Notes as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Note attached
as Exhibit A hereto, manually executed by the Trustee (or an authenticating
agent appointed by the Trustee as provided by Section 16.11), shall be entitled
to the benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Trustee (or such an authenticating agent) upon any Note
executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any
of the Notes shall cease to be such officer before the Notes so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Notes nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Notes had not ceased to be such officer
of the Company; and any Note may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Note, shall be the
proper officers of the Company, although at the date of the execution of this
Indenture any such person was not such an officer.
SECTION 2.5. EXCHANGE AND REGISTRATION OF TRANSFER OF
NOTES: RESTRICTIONS ON TRANSFER DEPOSITARY.
(a) The Company shall cause to be kept at the Corporate
Trust Office a register (the register maintained in such office and in any
other office or agency of the Company designated pursuant to Section 5.2 being
herein sometimes collectively referred to as the "Note register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes. The Note
register shall be in written form or in any form capable of being converted
into written form within a reasonably prompt period of time. The Trustee is
hereby appointed "Note registrar" for the purpose of registering Notes and
transfers of
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Notes as herein provided. The Company may appoint one or more co-registrars in
accordance with Section 5.2.
Upon surrender for registration of transfer of any Note to the
Note registrar or any co-registrar, and satisfaction of the requirements for
such transfer set further in this Section 2.5, the Company shall execute, and
the Trustee shall authenticate and make available for delivery, in the name of
the designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office of agency maintained by the Company
pursuant to Section 5.2. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the trustee shall authenticate and make
available for delivery, the Notes which the Noteholder making the exchange is
entitled to receive bearing registration numbers not contemporaneously
outstanding.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
Debt Securities, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of
transfer or for exchange, redemption or conversion shall (if so required by the
Company or the Note registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, and
the Notes shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax, assessment or other governmental charge that may
be imposed in connection with any registration of transfer or exchange of
Notes.
Neither the Company nor the Trustee nor any Note registrar or
any Company registrar shall be required to exchange or register a transfer of
(a) any Notes for a period of fifteen (15) days next preceding any selection of
Notes to be redeemed or (b) any Notes or portions thereof called for redemption
pursuant to Article III or (c) any Notes or portion thereof surrendered for
conversion pursuant to Article XV.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by law, all Notes
that are so eligible may be represented by one or more Notes in global form (a
"Global Note") registered in the name of the Depositary or the nominee of the
Depositary, except as otherwise specified below. The transfer and exchange of
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beneficial interests in any such Global Note shall be effected through the
Depositary in accordance with this Indenture and the procedures of the
Depositary therefor.
Transfers of interests in the Notes between any Global Note
and any other Note will be made in accordance with the standing instructions
and procedures of the Depositary and its participants. The Trustee shall make
appropriate endorsements to reflect increases or decreases in the principal
amounts of such Global Notes as set forth on the face of the Note ("Principal
Amount") to reflect any such transfers.
Except as provided below, beneficial owners of a Global Note
shall not be entitled to have certificates registered in their names, will not
receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered Holders of such Notes in global
form.
(c) Any Note in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be required by the
Custodian, the Depositary or by the National Association of Securities Dealers,
Inc. in order for the Notes to be tradeable on the Nasdaq National Market or as
may be required for the Notes to be tradeable on any other market developed for
trading of such securities or required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or automated quotation system upon which the Notes may be listed or
traded or to conform with any usage with respect thereto, or to indicated any
special limitations or restrictions to which any particular Notes are subject.
(d) As used in Sections 2.5(d) and 2.5(e), the term
"transfer" encompasses any sale, pledge, transfer or other disposition
whatsoever of any Note.
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in the second paragraph of Section 2.5(b) and in
this Section 2.5(d)), a Note in global form may not be transferred as a whole
or in part except 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.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints DTC to act as Depositary with
respect to the Notes in global form. Initially, any Global Note shall be issued
to the Depositary, registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Custodian for Cede & Co.
If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for such Note,
the Company may appoint a successor Depositary with respect to such Note. If a
successor Depositary is not appointed by the Company within ninety (90) days
after the Company receives such notice, the Company will execute, and the
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Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of Notes, will authenticate and make available for delivery, Notes in
certificated form, in aggregate principal amount equal to the principal amount
of such Note in global form, in exchange for such Note in global form.
If a Note in certificated form is issued in exchange for any
portion of a Global Note after the close of business at the office or agency
where such exchange occurs on any record date and before the opening of
business at such office or agency on the next succeeding interest payment date,
interest will not be payable on such interest payment date in respect of such
Note, but will be payable on such interest payment date, subject to the
provisions of Section 2.3, only to the person to whom interest in respect of
such portion of such Global Note is payable in accordance with the provisions
of this Indenture.
Notes in certificated form issued in exchange for all or a
part of a Note in global form pursuant to this Section 2.5 shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall make
available for delivery such Notes in certificated form to the persons in whose
names such Notes in certificated form are so registered.
At such time as all interests in a Note in global form have
been redeemed, converted, canceled, exchanged for Notes in certificated form,
or transferred to a transferee who receives Notes in certificated form thereof,
such Note in global form shall, upon receipt thereof, be canceled by the
Trustee in accordance with standing procedures and instructions existing
between the Depositary and the Custodian. At any time prior to such
cancellation, if any interest in a Global Note is exchanged for Notes in
certificated form, redeemed, converted, repurchased or canceled, exchanged for
Notes in certified form or transferred to a transferee who receives Notes in
certificated form therefor or any Note in certificated form is exchanged or
transferred for part of a Note in global form, the principal amount at maturity
of such Note in global form shall, in accordance with the standing procedures
and instructions existing between the Depositary and the Custodian, be
appropriately reduced or increased, as the case may be, and an endorsement
shall be made on such Global Note, by the Trustee or the Custodian, at the
direction of the Trustee, to reflect such reduction or increase.
SECTION 2.6. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
In case any Note shall become mutilated or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon its request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of
and in substitution for the Note so destroyed, lost or stolen. In every case
the applicant for a substituted Note shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, the
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applicant shall also furnish to the Company, to the Trustee and, if applicable,
to such authenticating agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any
such substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note which has matured or is about to mature or has been
called for redemption or is about to be converted into Common Stock shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Note, pay or authorize the payment of or convert or
authorize the conversion of the same (without surrender thereof except in the
case of a mutilated Note), as the case may be, if the applicant for such
payment or conversion shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or connected with such substitution, and, in case of
destruction, loss or theft, evidence satisfactory to the Company, the Trustee
and, if applicable, any paying agent or conversion agent of the destruction,
loss or theft or such Note and of the ownership thereof.
Every substituted Note issued pursuant to the provisions of
this Section 2.6 by virtue of the fact that any Note is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be found at any time,
and shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law, all
Notes shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or
conversion of mutilated, destroyed, lost or stolen Notes and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment or
conversion of negotiable instruments or other securities without their
surrender.
SECTION 2.7. TEMPORARY NOTES. Pending the preparation
of Notes in certificated forms, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon the written request
of the Company, authenticate and make available for delivery temporary Notes
(printed or lithographed). Temporary Notes shall be issuable in any authorized
denomination, and substantially in the form of the Notes in certificated form,
but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the Notes in certificated form. Without
unreasonable delay the Company will execute and deliver to the Trustee or such
authenticating agent Notes in certificated form (other than in the case of
Notes in global form) and thereupon any or all
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temporary Notes (other than any such Note in global form) may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant
to Section 5.2 and the Trustee or such authenticating agent shall authenticate
and deliver in exchange for such temporary Notes an equal aggregate principal
amount of Notes in certificated form. Such exchange shall be made by the
Company at its own expense and without any charge therefor. Until so exchanged,
the temporary Notes shall in all respects be entitled to the same benefits and
subject to the same limitations under this Indenture as Notes in certificated
form authenticated and made available for delivery hereunder.
SECTION 2.8. CANCELLATION OF NOTES PAID, ETC. All Notes
surrendered for the purpose of payment, redemption, conversion, exchange or
registration of transfer, shall, if surrendered to the Company or any paying
agent or any Note registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall
be promptly canceled by it, and no Notes shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. After such
cancellation, the Trustee shall, if requested by the Company, deliver such
cancelled Notes to the Company. If the Company shall acquire any of the Notes,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
SECTION 2.9. CUSIP NUMBERS. The Company in issuing the
Notes may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use CUSIP numbers in notices of redemption as a convenience to
Holders; provided, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION OF NOTES
SECTION 3.1 REDEMPTION PRICES. The Company may not
redeem the Notes prior to August ___, 2000. On or after that date, the Company
may, at its option, redeem all or from time to time any part of the Notes on
any date prior to maturity, upon notice as set forth in Section 3.3, and at the
applicable Redemption Price together with accrued interest to, but excluding,
the date fixed for redemption; provided that any semi-annual payment of
interest becoming due on the date fixed for redemption shall be payable to the
holders of such Notes registered on the relevant record date.
SECTION 3.2 NOTICE OF TRUSTEE. If the Company elects to
redeem Notes pursuant to Section 3.1, it shall notify the Trustee in writing of
the redemption date and the principal amount
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of Notes to be redeemed, as least 45 days before the redemption date (unless a
shorter period shall be satisfactory to the Trustee).
SECTION 3.3 NOTICE OF REDEMPTION; SELECTION OF NOTES. In
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Notes pursuant to Section 3.1 for redemption, it
or, at its request, the Trustee in the name of and at the expense of the
Company, shall mail or cause to be mailed a notice of such redemption at least
30 and not more than 60 days prior to the date fixed for redemption to the
holders of Notes so to be redeemed as a whole or in part at their last
addresses as the same appear on the registry books of the Company. Such
mailing shall be by first class mail. The notice if mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the holder of any Note designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
Each such notice of redemption shall identify the Notes to be
redeemed (including CUSIP number), specify the principal amount at
maturity of each Note to be redeemed, the date fixed for redemption, the
Redemption Price at which Notes are to be redeemed, the place or places of
payment, that payment will be made upon presentation and surrender of such
Notes, that interest and Original Issue Discount accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest and Original Issue Discount thereon or on the portions thereof to
be redeemed will cease to accrue, unless the Company defaults in the payment of
the Redemption Price. Such notice shall also state the current Conversion Rate
and the date on which the right to convert such Notes or portions thereof into
Common Stock will expire. If fewer than all the Notes are to be redeemed, the
notice of redemption shall identify the Notes to be redeemed. In case any Note
is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount at maturity thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Note, a new Note or Notes in principal amount at maturity equal to the
unredeemed portion thereof will be issued.
No later than the Business Day prior to the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 5.4) an amount of money sufficient to redeem on
the redemption date all the Notes so called for redemption (other than those
theretofore surrendered for conversion into Common Stock) at the appropriate
Redemption Price, together with accrued interest to the date fixed for
redemption. If any Note called for redemption is converted pursuant hereto,
any money deposited with the Trustee or any Paying Agent or so segregated and
held in trust for the redemption of such Note shall be paid to the Company upon
its request, or, if then held by Company shall be discharged from such trust.
If fewer than all the Notes are to be redeemed, the Trustee
shall select, by lot, pro rata or in such other manner as the Trustee shall
deem equitable and fair, the Notes or portions thereof
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(in integral multiples of $1,000 principal amount at maturity) to be redeemed.
If any Note selected for partial redemption is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as it may
be) to be the portion to be selected for redemption. The Notes (or portions
thereof) so selected shall be deemed duly selected for redemption for all
purposes hereof, notwithstanding that any such Note is converted as a whole or
in part before the mailing of the notice of redemption.
Upon any redemption of less than all Notes, the Company and
the Trustee may treat as outstanding any Notes surrendered for conversion
during the period of 15 days next preceding the mailing of a notice of
redemption and need not treat as outstanding any Note authenticated and
delivered during such period in exchange for the unconverted portion of any
Note converted in part during such period.
SECTION 3.4. PAYMENT OF NOTES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Notes or portions of
Notes with respect to which such notice has been given shall, unless
theretofore converted into Common Stock pursuant to the terms hereof, become
due and payable on the date and at the place or places stated in such notice at
the applicable Redemption Price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Notes at the Redemption Price, together with
interest accrued to said date) Original Issue Discount and interest on the
Notes or portions of Notes so called for redemption shall cease to accrue and
such Notes shall cease after the date fixed for redemption to be convertible
into Common Stock and, except as provided in Sections 8.5 and 13.4, to be
entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Notes except the right to
receive the Redemption Price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Notes at a place of payment
in said notice specified, the said Notes or the specified portions thereof
shall be paid and redeemed by the Company at the applicable Redemption Price,
together with interest accrued thereon to the date fixed for redemption;
provided that any semi-annual payment of interest becoming due on the date
fixed for redemption shall be payable to the holders of such Notes registered
as such on the relevant record date subject to the terms and provisions of
Section 2.2 hereof.
Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount at maturity equal to the
unredeemed portion of the Note so presented.
Notwithstanding the foregoing, the Trustee shall not redeem
any Notes or mail any notice of optional redemption during the continuance of a
default in payment of principal amount at maturity, Redemption Price,
Fundamental Change Repurchase Price or interest in respect of the Notes or of
any Event of Default. If any Note called for redemption shall not be so paid
upon surrender thereof for redemption, the Redemption Price and, to the extent
legally permitted, interest, if any, in respect thereof shall, until paid or
duly
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provided for, bear interest from the date fixed for redemption at the rate
borne by the Note (treating the accrual of Original Issue Discount as if it
were interest) and such Note shall remain convertible into Common Stock until
the Redemption Price shall have been paid or duly provided for.
SECTION 3.5 NO SINKING FUND. The Notes shall not be
entitled to the benefit of any sinking fund.
SECTION 3.6 CONVERSION ARRANGEMENT ON CALL FOR
REDEMPTION. In connection with any redemption of Notes, the Company may
arrange for the purchase and conversion of any Notes by an agreement with one
or more investment bankers or other purchasers to purchase such Notes by paying
to the Trustee in trust for the Noteholders, on or before the close of business
on the date fixed for redemption, an amount not less than the applicable
Redemption Price, together with interest accrued to the date fixed for
redemption, of such Notes. Notwithstanding anything to the contrary contained
in this Article III, the obligation of the Company to pay the Redemption
Price of such Notes, together with interest accrued to the date fixed for
redemption, shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, a
copy of which will be filed with the Trustee prior to the date fixed for
redemption, any Notes not duly surrendered for conversion by the holders
thereof may, at the option of the Company, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in Article XV)
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the date fixed for redemption (and the right to convert
any such Notes shall be extended through such time), subject to payment of the
above amount as aforesaid. At the direction of the Company, the Trustee shall
hold and dispose of any such amount paid to it in the same manner as it would
monies deposited with it by the Company for the redemption of Notes. Without the
Trustee's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Notes shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee as set forth in this Indenture, and the Company agrees to indemnify
the Trustee from, and hold it harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of any Notes between the Company and such purchasers to which the
Trustee has not consented in writing, including the costs and expenses incurred
by the Trustee in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 3.7. REDEMPTION AT OPTION OF HOLDERS.
(a) If there shall occur a Fundamental Change at any time
prior to ________, 2004, then each Noteholder shall have the right, at such
holder's option, to require the Company to redeem all of such holder's Notes,
or any portion thereof that is an integral multiple of $1,000 principal amount
at maturity, on the date (the "Fundamental Change Repurchase Date") that is
thirty (30) days after the date of the Company Notice (as defined in Section
3.7(b) below) of such Fundamental Change (or, if such 30th day is not a
Business Day, the next succeeding Business Day).
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Any such redemption of Notes shall be made on the Fundamental Change Repurchase
Date at a price (the "Fundamental Change Repurchase Price") equal to the Issue
Price plus accrued Original Issue Discount to the Fundamental Change Repurchase
Date; provided, that if the Applicable Price with respect to the Fundamental
Change is less than the Reference Market Price, the Company shall redeem such
Notes at a price equal to the foregoing redemption price multiplied by the
fraction obtained by dividing the Applicable Price by the Reference Market
Price. In each case, the Company shall also pay to such holders accrued
interest to, but excluding, the Fundamental Change Date on the redeemed Notes;
provided, that if such repayment date is an interest payment date, then the
interest payable on such date shall be paid to the holder of record of the Note
on the next preceding record date.
Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion
of the Notes so presented.
(b) On or before the tenth day after the occurrence of a
Fundamental Change, the Company, or, at its request (which must be received by
the Trustee at least five (5) Business Days prior to the date the Trustee is
requested to give notice as described below), the Trustee in the name of and at
the expense of the Company, shall mail or cause to be mailed to all holders of
record on the date of the Fundamental Change a notice (the "Company Notice") of
the occurrence of such Fundamental Change and of the redemption right at the
option of the holders arising as a result thereof. Such notice shall be mailed
in the manner and with the effect set forth in the first paragraph of Section
3.3. The Company shall also deliver a copy of the Company Notice to the
Trustee at such time as it is mailed to Noteholders.
Each Company Notice shall specify the circumstances
constituting the Fundamental Change, the Fundamental Change Repurchase Date,
the price at which the Company shall be obligated to redeem Notes, the latest
time on the Fundamental Change Repurchase Date by which the holder must
exercise the redemption right (the "Fundamental Change Expiration Time"), that
the holder shall have the right to withdraw any Notes surrendered prior to the
Fundamental Change Expiration Time, a description of the procedure which a
Noteholder must follow to exercise such redemption right and to withdraw any
surrendered Notes, the place or places where the holder is to surrender such
holder's Notes, and the amount of Original Issue Discount and interest accrued
on each Note to the Fundamental Change Repurchase Date.
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Noteholders' redemption rights or affect the
validity of the proceedings for the repurchase of the Notes pursuant to this
Section 3.7.
(c) For a Note to be so repaid at the option of the
holder, the Company must receive at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York
or, at the option of such holder, the Corporate Trust Office, such
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Note with the form entitled "Option to Elect Repayment Upon A Fundamental
Change" on the reverse thereof duly completed, together with such Notes duly
endorsed for transfer, on or before the Fundamental Change Expiration Time. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment shall be determined by the Company, whose
determination shall be final and binding absent manifest error.
(d) On or prior to the Fundamental Change Repurchase Date,
the Company will deposit with the Trustee or with one or more paying agents
(or, if the Company is acting as its own paying agent, set aside, segregate and
hold in trust as provided in Section 5.4) an amount of money sufficient to
repay on the Fundamental Change Repurchase Date all the Notes to be repaid on
such date at the appropriate redemption price, together with accrued Original
Issue Discount and interest to (but excluding) the Fundamental Change
Repurchase Date; provided, that if such payment is made on the Fundamental
Change Repurchase Date it must be received by the Trustee or paying agent, as
the case may be, by 10:00 a.m. New York City time, on such date. Payment for
Notes surrendered for redemption (and not withdrawn) prior to the Fundamental
Change Expiration Time will be made promptly (but in no event more than three
Business Days) following the Fundamental Change Repurchase Date by mailing
checks for the amount payable to the holders of such Notes entitled thereto as
they shall appear on the registry books of the Company.
(e) In the case of consolidation, merger, conveyance,
transfer or lease to which Section 15.6 applies, in which the Common Stock of
the Company is changed or exchanged as a result into the right to receive
securities, cash or other property which includes shares of Common Stock of the
Company or another Person that are, or upon issuance will be, traded on a
United States national securities exchange or approved for trading on an
established automated over-the-counter trading market in the United States and
such shares constitute at the time such change or exchange becomes effective in
excess of 50% of the aggregate fair market value of such securities, cash and
other property (as determined by the Company, which determination shall be
conclusive and binding), then the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of execution of
such supplemental indenture) modifying the provisions of this Indenture
relating to the right of holders of the Notes to cause the Company to
repurchase the Notes following a Fundamental Change, including without
limitation the applicable provisions of this Section 3.7 and the definitions of
the Applicable Price, Common Stock, Fundamental Change and Reference Market
Price, as appropriate, as determined in good faith by the Company (which
determination shall be conclusive and binding), to make such provisions apply
to the common stock and the issuer thereof if different from the Company and
Common Stock of the Company (in lieu of the Company and the Common Stock of the
Company).
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ARTICLE IV
SUBORDINATION OF NOTES
SECTION 4.1 AGREEMENT OF SUBORDINATION. The Company
covenants and agrees, and each holder of Notes issued hereunder by his
acceptance thereof likewise covenants and agrees, that all Notes shall be
issued subject to the provisions of this Article IV; and each Person holding
any Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees to be bound by such provisions.
The payment of the principal of, premium, if any, and interest
on all Notes (including, but not limited to, the Redemption Price with respect
to the Notes called for redemption in accordance with Section 3.3 or the
Fundamental Change Repurchase Price with respect to the Notes submitted for
redemption in accordance with Section 3.7, as the case may be, as provided in
the Indenture) issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article IV shall prevent the occurrence
of any default or Event of Default hereunder.
SECTION 4.2. PAYMENTS TO NOTEHOLDERS. No payment shall be
made with respect to the principal of, or premium, if any, or interest on the
Notes (including, but not limited to, the Redemption Price with respect to the
Notes to be called for redemption in accordance with Section 3.3 or the
Fundamental Change Repurchase Price with respect to Notes submitted for
redemption in accordance with Section 3.7, as the case may be, as provided in
the Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section 4.5, if:
(i) a default in the payment of principal, premium, if
any, interest, rent or other obligations in respect of Senior
Indebtedness occurs and is continuing (or, in the case of Senior
Indebtedness for which there is a period of grace, in the event of such
a default that continues beyond the period of grace, if any, specified
in the instrument or lease evidencing such Senior Indebtedness),
unless and until such default shall have been cured or waived or shall
have ceased to exist; or
(ii) a default, other than a payment default, on Designated
Senior Indebtedness occurs and is continuing that then permits holders
of such Designated Senior Indebtedness to accelerate its maturity and
the Trustee receives a notice of the default (a "Payment Blockage
Notice") from a Representative or the Company.
If the Trustee receives any Payment Blockage Notice pursuant to clause (ii)
above, no subsequent Payment Blockage Notice shall be effective for purposes of
this Section unless and until (A) at least
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365 days shall have elapsed since the initial effectiveness of the immediately
prior Payment Blockage Notice, and (B) all scheduled payments of principal
amount at maturity, Redemption Price, Fundamental Change Repurchase Price and
interest on the Notes that have come due have been paid in full in cash. No
nonpayment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions
in respect of the Notes upon the earlier of:
(1) the date upon which the default is cured or waived or
ceases to exist, or
(2) in the case of a default referred to in clause (ii)
above, 179 days after the Payment Blockage Notice is received if the maturity
of such Designated Senior Indebtedness has not been accelerated, unless this
Article IV otherwise prohibits the payment or distribution at the time of such
payment or distribution.
Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in full in cash
or other payment satisfactory to the holders of such Senior Indebtedness, or
payment thereof in accordance with its terms provided for in cash or other
payment satisfactory to the holders of such Senior Indebtedness before any
payment is made on account of the principal of, premium, if any, or interest on
the Notes (except payments made pursuant to Article XIII from monies deposited
with the Trustee pursuant thereto prior to commencement of proceedings for such
dissolution, winding-up, liquidation or reorganization); and upon any such
dissolution or winding-up or liquidation or reorganization of the Company or
bankruptcy, insolvency, receivership or other proceeding, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the holders of the Notes or
the Trustee would be entitled, except for the provisions of this Article IV,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the holders of the Notes or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders, or as otherwise required by law or
a court order) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in cash
or other payment satisfactory to the holders of such Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness, before any payment or distribution is made to the
holders of the Notes or to the Trustee.
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For purposes of this Article IV, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article IV with respect to the Notes to the payment of all Senior Indebtedness
which may at the time be outstanding; provided, that (i) the Senior
Indebtedness is assumed by the new corporation, if any, resulting from any
reorganization or readjustment, and (ii) the rights of the holders of Senior
Indebtedness (other than leases which are not assumed by the Company or the new
corporation, as the case may be) are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article XII shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 4.2 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article XII.
In the event of the acceleration of the Notes because of an
Event of Default, no payment or distribution shall be made to the Trustee or
any holder of Notes in respect of the principal of, premium, if any, or
interest on the Notes (including, but not limited to, the Redemption Price with
respect to the Notes called for redemption in accordance with Section 3.3 or
the Fundamental Change Repurchase Price with respect to Notes submitted for
redemption in accordance with Section 3.7, as the case may be, as provided in
the Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section 4.5, until all Senior
Indebtedness has been paid in full in cash or other payment satisfactory to the
holders of Senior Indebtedness or such acceleration is rescinded in accordance
with the terms of this Indenture. If payment of the Notes is accelerated
because of an Event of Default, the Company shall promptly notify holders of
Senior Indebtedness of the acceleration.
In the event that, notwithstanding the foregoing provisions,
any payment or distribution of assets of the Company or any kind or character,
whether in cash, property or securities (including, without limitation, by way
of setoff or otherwise), prohibited by the foregoing, shall be received by the
Trustee or the holders of the Notes before all Senior Indebtedness is paid in
full in cash or other payment satisfactory to the holders of such Senior
Indebtedness, or provision is made for such payment thereof in accordance with
its terms in cash or other payment satisfactory to the holders of such Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of a
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash or other payment satisfactory to the holders of
such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
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Nothing in this Section 4.2 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 8.6. This Section 4.2
shall be subject to the further provisions of Section 4.5.
SECTION 4.3. SUBROGATION OF NOTES. Subject to the payment
in full of all Senior Indebtedness, the rights of the holders of the Notes
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this Article
IV (equally and ratably with the holders of all indebtedness of the Company
which by its express terms is subordinated to other indebtedness of the Company
to substantially the same extent as the Notes are subordinated and is entitled
to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal, premium, if any, and interest on the Notes shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the holders of the Notes or the Trustee would be entitled except for the
provisions of this Article IV, and no payment over pursuant to the provisions
of this Article IV, to or for the benefit of the holders of Senior Indebtedness
by holders of the Notes or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness, and the holders of the
Notes, be deemed to be a payment by the Company to or on account of the Senior
Indebtedness; and no payments or distributions of cash, property or securities
to or for the benefit of the holders of the Notes pursuant to the subrogation
provisions of this Article IV, which would otherwise have been paid to the
holders of Senior Indebtedness, shall be deemed to be a payment by the Company
to or for the account of the Notes. It is understood that the provisions of
this Article IV are and are intended solely for the purposes of defining the
relative rights of the holders of the Notes, on the one hand, and the holders
of the Senior Indebtedness, on the other hand.
Nothing contained in this Article IV or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as among the Company,
its creditors other than the holders of Senior Indebtedness, and the holders of
the Notes, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Notes the principal of (and premium, if any) and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Notes and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the holder of any Note from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article IV of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article IV, the Trustee, subject to the provisions of
Section 8.1, and the holders of the Notes shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or to the holders of the Notes, for the
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purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon and all other facts
pertinent thereto or to this Article IV.
SECTION 4.4. AUTHORIZATION TO EFFECT SUBORDINATION. Each
holder of a Note by the holder's acceptance thereof authorizes and directs the
Trustee on the holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article IV and
appoints the Trustee to act as the holder's attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in the third paragraph
of Section 7.2 hereof at least 30 days before the expiration of the time to
file such claim, the holders of any Senior Indebtedness or their
representatives are hereby authorized to file an appropriate claim for and on
behalf of the holders of the Notes.
SECTION 4.5. NOTICE TO TRUSTEE. The Company shall give
prompt written notice in the form of an Officers' Certificate to a Responsible
Officer of the Trustee and to any paying agent of any fact known to the Company
which would prohibit the making of any payment of monies to or by the Trustee
or any paying agent in respect of the Notes pursuant to the provisions of this
Article IV. Notwithstanding the provisions of this Article IV or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Notes pursuant to the provisions
of this Article IV, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof at the Corporate Trust Office from the
Company (in the form of an Officers' Certificate) or a Representative or a
holder or holders of Senior Indebtedness or from any trustee thereof; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 8.1, shall be entitled in all respects to assume that no
such facts exist; provided, that if on a date not fewer than one Business Day
prior to the date upon which by the terms hereof any such monies may become
payable for any purpose (including, without limitation, the payment of the
principal of, or premium, if any, or interest on any Note) the Trustee shall
not have received, with respect to such monies, the notice provided for in this
Section 4.5, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such prior date.
Notwithstanding anything in this Article IV to the contrary,
nothing shall prevent any payment by the Trustee to the Noteholders of monies
deposited with it pursuant to Section 13.1, and any such payment shall not be
subject to the provisions of Section 4.1 or 4.2.
The Trustee, subject to the provisions of Section 8.1, shall
be entitled to rely on the delivery to it of a written notice by a
Representative or a person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a Representative or a holder of Senior Indebtedness or
a trustee on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is
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required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article IV, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article IV, and if such evidence is not furnished the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
SECTION 4.6. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article IV in respect of any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in Section 8.13 or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article IV, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 8.1, the Trustee shall not be liable to
any holder of Senior Indebtedness if it shall pay over or deliver to holders of
Notes, the Company or any other person money or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article IV or
otherwise.
SECTION 4.7. NO IMPAIRMENT OF SUBORDINATION. No right of
any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
SECTION 4.8. CERTAIN CONVERSIONS DEEMED PAYMENT. For the
purposes of this Article IV only, (1) the issuance and delivery of junior
securities upon conversion of Notes in accordance with Article XV shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any) or interest on Notes or on account of the purchase or
other acquisition of Notes, and (2) the payment, issuance or delivery of cash
(except in satisfaction of fractional shares pursuant to Section 15.3),
property or securities (other than junior securities) upon conversion of a Note
shall be deemed to constitute payment on account of the principal of such Note.
For the purposes of this Section 4.8, the term "junior securities" means (a)
shares of any stock of any class of the Company, or (b) securities of the
Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, the Notes are
so subordinated as provided in this Article. Nothing contained in this Article
IV or elsewhere in this Indenture or in the Notes is intended to or shall
impair, as among the Company, its creditors other
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than holders of Senior Indebtedness and the Noteholders, the right, which is
absolute and unconditional, of the Holder of any Note to convert such Note in
accordance with Article XV.
SECTION 4.9. ARTICLE APPLICABLE TO PAYING AGENTS. If at
any time any paying agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall (unless the context otherwise requires) be construed as extending
to and including such paying agent within its meaning as fully for all intents
and purposes as if such paying agent were named in this Article in addition to
or in place of the Trustee; provided, however, that the first paragraph of
Section 4.5 shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as paying agent.
SECTION 4.10. SENIOR INDEBTEDNESS ENTITLED TO RELY. The
holders of Senior Indebtedness (including, without limitation, Designated
Senior Indebtedness) shall have the right to rely upon this Article IV, and no
amendment or modification of the provisions contained herein shall diminish the
rights of such holders unless such holders shall have agreed in writing
thereto.
SECTION 4.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
7.1, and the Holders of the Notes shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 4.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
the Notes or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any
payment hereunder unless a Trust Officer of the Trustee shall have received
notice to that effect at the address of the Trustee set forth herein. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Indebtedness shall be read into this
Indenture against the Trustee.
SECTION 4.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee or any
authenticating agent in its individual capacity shall be
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entitled to all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee or any authenticating agent of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 8.6.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees that it will duly and punctually pay or cause
to be paid the principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Repurchase Price, and
interest on each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes. Each installment of interest on the
Notes due on any semi-annual interest payment date may be paid either (i) by
check mailed to the address of the person entitled thereto as it appears in the
Note register or (ii) by transfer to an account maintained by such person
located in the United States; provided, however, that payments to DTC will be
made by wire transfer of immediately available funds to the account of DTC or
its nominee.
SECTION 5.2. MAINTENANCE OF OFFICE OR AGENCY. The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Notes may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion or redemption 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 not designated or appointed by the Trustee. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office or the
office or agency of the Trustee in the Borough of Manhattan, The City of New
York.
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, that no such designation or rescission shall 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 any such designation or rescission and of any change
in the location of any such other office or agency.
The Company hereby initially designates the Trustee as paying
agent, Note registrar, Custodian and conversion agent, and each of the
Corporate Trust Office of the Trustee and the office
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of the Trustee in the Borough of Manhattan, The City of New York (which shall
initially be 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
So long as the Trustee is the Note registrar, the Trustee
agrees to mail, or cause to be mailed, the notices set forth in Section 8.10(a)
and the third paragraph of Section 8.11.
SECTION 5.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S
OFFICE. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 8.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 5.4. PROVISIONS AS TO PAYING AGENT.
(a) If the Company shall appoint a paying agent other than
the Trustee, or if the Trustee shall appoint such a paying agent, it will cause
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section 5.4:
(1) that it will hold all sums held by it as such
agent for the payment of the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Repurchase Price or interest on the
Notes (whether such sums have been paid to it by the Company
or by any other obligor on the Notes) in trust for the benefit
of the holders of the Notes;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the Notes)
to make any payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Repurchase Price or interest on the Notes
when the same shall be due and payable; and
(3) that at any time during the continuance of an
Event of Default, upon request of the Trustee, it will
forthwith pay to the Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal
amount at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Repurchase Price or interest in respect of the Notes,
deposit with the paying agent a sum sufficient to pay such amounts, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action; provided, that if such deposit is
made on the due date, such deposit shall be received by the paying agent by
10:00 a.m. New York City time, on such date.
(b) If the Company shall act as its own paying agent, it
will, on or before each due date of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption
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Price, Fundamental Change Repurchase Price or interest on the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such amounts so becoming due and will notify the Trustee of
any failure to take such action and of any failure by the Company (or any other
obligor under the Notes) to make any payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Repurchase Price or interest on the Notes when the same
shall become due and payable.
(c) Anything in this Section 5.4 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company or any
paying agent hereunder as required by this Section 5.4, such sums to be held by
the Trustee upon the trusts herein contained and upon such payment by the
Company or any paying agent to the Trustee, the Company or such paying agent
shall be released from all further liability with respect to such sums.
(d) Anything in this Section 5.4 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this
Section 5.4 is subject to Sections 13.3 and 13.4.
SECTION 5.5. CORPORATE EXISTENCE. Subject to Article XII,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
SECTION 5.6. STAY, EXTENSION AND USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it shall 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 or other law which would
prohibit or forgive the Company from paying all or any portion of the principal
of or interest on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and the Company (to the extent 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.
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
SECTION 6.1. NOTEHOLDERS' LISTS. The Company covenants
and agrees that it will furnish or cause to be furnished to the Trustee,
semiannually, not more than fifteen (15) days after each _______ and _________
in each year beginning with ________ , 1998, and at such other
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times as the Trustee may request in writing, within thirty (30) days after
receipt by the Company of any such request (or such lesser time as the Trustee
may reasonably request in order to enable it to timely provide any notice to be
provided by it hereunder), a list in such form as the Trustee may reasonably
require of the names and addresses of the holders of Notes as of a date not
more than fifteen (15) days (or such other date as the Trustee may reasonably
request in order to so provide any such notices) prior to the time such
information is furnished, except that no such list need be furnished so long as
the Trustee is acting as Note registrar.
SECTION 6.2. PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Notes contained in the most recent list furnished to is as provided
in Section 6.1 or maintained by the Trustee in its capacity as note registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 6.1 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other
holders of Notes with respect to their rights under this Indenture or under the
Notes, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of holders of Notes
made pursuant to the Trust Indenture Act.
SECTION 6.3. REPORTS BY TRUSTEE.
(a) Within sixty (60) days after of each year
commencing with the year 1998, the Trustee shall transmit to holders of Notes
such reports dated as of of the year in which such reports are made
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of such report shall, at the time of such
transmission to holders of Notes, be filed by the Trustee with each stock
exchange and automated quotation system upon which the Notes are listed and
with the Company. The Company will notify the Trustee within a reasonable time
when the Notes are listed on any stock exchange and automated quotation system.
SECTION 6.4. REPORTS BY COMPANY.
(a) The Company shall file with the Trustee (and the
Commission if at any time after the Indenture becomes qualified under the Trust
Indenture Act), and transmit to holders of Notes, such information, documents
and other reports and such summaries thereof, as may be
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required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided, that any such information, documents
or reports required to be filed with the Commission pursuant to Section 13 or
15(d) of the Exchange Act will be field with the Trustee within fifteen (15)
days after the same is so required to be filed with the Commission.
Delivery of such information, documents and reports to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(b) The Company will deliver to the Trustee annually,
commencing , 1998, a certificate, from its principal executive officer,
principal financial officer or principal accounting officer, stating whether or
not to the knowledge of the signer thereof the Company is in compliance
(without regard to periods of grace or notice requirements) with all conditions
and covenants under this Indenture, and if the Company shall not be in
compliance, specifying such non-compliance and the nature and status thereof of
which such signer may have knowledge.
SECTION 6.5. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The
Company shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of Original Issue Discount (including
daily rates and accrual periods) accrued on outstanding Notes as of the end of
such year.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON AN EVENT OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT. In case one or more of
the following Events of Default (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body) shall have
occurred and be continuing:
(a) default in the payment of any installment of interest upon
any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of thirty (30) days, whether or not
such payment is permitted under Article IV hereof; or
(b) default in the payment of the principal amount at
maturity, Redemption Price, Fundamental Change Repurchase Price in respect of
any of the Notes as and when the same shall become due and payable either at
maturity or in connection
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with any redemption pursuant to Article III, by acceleration or otherwise,
whether or not such payment is permitted under Article IV hereof; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the Company in
the Notes or in this Indenture (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section 7.1 specifically
dealt with) continued for a period of thirty (30) days after the date on which
written notice of such failure, requiring the Company to remedy the same, shall
have been given to the Company by the Trustee, or to the Company and a
Responsible Officer of the Trustee by the holders of at least 25 percent in
aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 9.4; or
(d) the Company shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due; or
(e) an involuntary case or other proceeding shall be
commenced against the Company seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of ninety (90) consecutive
days; then, and in each and every such case (other than an Event of Default
specified in Section 7.1(d) or (e)), unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the holders of
not less than 25 percent in aggregate principal amount of the Notes then
outstanding hereunder determined in accordance with Section 9.4, by notice in
writing to the Company (and to the Trustee if given by Noteholders), may
declare the sum of the Issue Price of the Notes, plus the accrued Original
Issue Discount from the date of original issue of the Notes to the date of
declaration and the interest accrued thereon, to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding. If an Event of Default specified in
Section 7.1(d) or (e) occurs, the principal of all the Notes, plus the accrued
Original Issue Discount and the interest accrued thereon shall be immediately
and automatically due and payable without necessity of further action. This
provision, however, is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all Notes and the principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change
Repurchase Price and interest in respect of any and all Notes which shall
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have become due otherwise than by acceleration (with interest on overdue
installments of interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price and Fundamental
Change Repurchase Price at the rate borne by the Notes, to the date of such
payment or deposit) and amounts due to the Trustee pursuant to Section 8.6, and
if any and all defaults under this Indenture, other than the nonpayment of the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Repurchase Price and accrued interest
thereon which shall have become due by acceleration, shall have been cured or
waived pursuant to Section 7.7, then and in every such case the holders of a
majority in aggregate principal amount at maturity of the Notes then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults or Events of Default and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or Event of Default, or shall impair any
right consequent thereon. The Company shall notify a Responsible Officer of the
Trustee, promptly upon becoming aware thereof, of any Event of Default.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission and annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in
every such case the Company, the holders of Notes, and the Trustee shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the holders of the Notes, and the
Trustee shall continue as though no such proceeding had been taken.
SECTION 7.2. PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR.
The Company covenants that (a) in case default shall be made in the payment of
any installment of interest upon any of the Notes as and when the same shall
become due and payment, and such default shall have continued for a period of
thirty (30) days, or (b) in case default shall be made in the payment of the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price or Fundamental Change Repurchase Price in respect of the Notes
as and when the same shall have become due and payable, whether at maturity of
the Notes or in connection with any redemption, by or under this Indenture
declaration or otherwise, then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Notes, the whole
amount that then shall have become due and payable on all such Notes for
principal amount at maturity or interest, or both, as the case may be, with
interest upon the overdue principal amount at maturity and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate borne by the Notes; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith. Until such
demand by the Trustee, the Company may pay the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Repurchase Price and interest on the Notes to the registered holders,
whether or not the Notes are overdue.
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In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law out of the
property of the Company or any other obligor on the Notes wherever situated the
monies adjudged or decreed to be payable.
In the case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other obligor on the
Notes under Title 11 of the United States Code, or any other applicable law, or
in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or such other obligor, the property of the
Company or such other obligor, or in the case of any other judicial proceedings
relative to the Company or such other obligor upon the Notes, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 7.2, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest owing and unpaid in respect
of the Notes, and, in case of any judicial proceedings, 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 and of the Noteholders allowed in such
judicial proceedings relative to the Company or any other obligor on the Notes,
its or their creditors, or its or their property, and to collect and receive
any monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of any amounts due the Trustee under
Section 8.6; and any receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, custodian or similar official is hereby authorized
by each of the Noteholders 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 Noteholders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including counsel fees
incurred by it up to the date of such distribution. To the extent that such
payment of reasonable compensation, expenses, advances and disbursements out of
the estate in any such proceedings 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, monies, securities and other property which the
holders of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without
the possession of any of the Notes, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Notes, and it shall not be necessary to make any holders of
the Notes parties to any such proceedings.
SECTION 7.3. APPLICATION OF MONIES COLLECTED BY TRUSTEE.
Any monies collected by the Trustee pursuant to this Article VII shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all amounts due the Trustee under
Section 8.6;
Second: Subject to the provisions of Article IV, in case the
principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest on the Notes in default in the order
of the maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate borne by the Notes,
such payments to be made ratably to the persons entitled thereto;
Third: Subject to the provisions of Article IV, in case the
principal of the outstanding Notes shall have become due, by
declaration or otherwise, and be unpaid to the payment of the whole
amount then owing and unpaid upon the Notes for principal and premium,
if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
rate borne by the Notes; and in case such monies shall be insufficient
to pay in full the whole amounts so due and unpaid upon the Notes, then
to the payment of such principal and premium, if any, and interest
without preference or priority of principal and premium, if any, over
interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of
any Note over any other Note, ratably to the aggregate of such
principal and premium, if any, and accrued and unpaid interest; and
Fourth: Subject to the provisions of Article IV, to the
payment of the remainder, if any, to the Company or any other person
lawfully entitled thereto.
SECTION 7.4. PROCEEDINGS BY NOTEHOLDER. No holder of any
Note shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy
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hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25 percent
in aggregate principal amount at maturity of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for sixty
(60) days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 7.7; it being understood and
intended, and being expressly covenanted, by the taker and holder of every Note
with every other taker and holder and the Trustee, that no one or more holders
of Notes shall have any right in any manner whatever by virtue of or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other holder of Notes, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein).
For the protection and enforcement of this Section 7.4, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment
of the principal amount at maturity, accrued Original Issue Discount and
interest on such Note, on or after the respective due dates expressed in such
Note, or to institute suit for the enforcement of any such payment on or after
such respective dates against the Company shall not be impaired or affected
without the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in his own behalf and for his own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, his rights of conversion as provided herein.
SECTION 7.5. PROCEEDINGS BY TRUSTEE. In case of an Event
of Default the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 7.6. REMEDIES CUMULATIVE AND CONTINUING. Except
as provided in Section 2.6, all powers and remedies given by this Article VII
to the Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements
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contained in this Indenture, and no delay or omission of the Trustee or of any
holder of any of the Notes to exercise any right or power accruing upon any
default or Event of Default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein; and, subject to the provisions of Section
7.4, every power and remedy given by this Article VII or by law to the Trustee
or to the Noteholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Noteholders.
SECTION 7.7. DIRECTION OF PROCEEDINGS AND WAIVER OF
DEFAULTS BY MAJORITY OF NOTEHOLDERS. The holders of a majority in aggregate
principal amount of the Notes at the time outstanding determined in accordance
with Section 9.4 shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided, however, that (a) such
direction shall not be in conflict with any rule of law or with this Indenture,
and (b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. The holders of a majority in
aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 9.4 may on behalf of the holders of all of the Notes
waive any past default or Event of Default hereunder and its consequences
except (i) a default in the payment of interest or premium, if any, on, or the
principal of, the Notes, (ii) a failure by the Company to convert any Notes
into Common Stock, (iii) a default in the payment of redemption price pursuant
to Article III or (iv) a default in respect of a covenant or provisions hereof
which under Article XI cannot be modified or amended without the consent of the
holders of all Notes then outstanding. Upon any such waiver the Company, the
Trustee and the holders of the Notes shall be restored to their former
positions and rights hereunder; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 7.7, said default or Event of Default shall
for all purposes of the Notes and this Indenture be deemed to have been cured
and to be not continuing; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 7.8. STATEMENT BY OFFICERS AS TO DEFAULT. The
Company shall deliver to the Trustee, as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of any Event
of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
SECTION 7.9. NOTICE OF DEFAULTS. The Trustee shall,
within ninety (90) days after it has knowledge of the occurrence of a default,
mail to all Noteholders, as the names and addresses of such holders appear upon
the Note register, notice of all defaults known to a Responsible Officer,
unless such defaults shall have been cured or waived before the giving of such
notice; and provided, that, except in the case of default in the payment of the
principal of, or premium, if any, or interest on any of the Notes, the Trustee
shall be protected in withholding such notice if and so long as a trust
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committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Noteholders.
SECTION 7.10. UNDERTAKING TO PAY COSTS. All parties to
this Indenture agree, and each holder of any Note by such holder's acceptance
thereof shall be deemed to have agreed, that any court may, in its discretion,
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
that the provisions of this Section 7.9 (to the extent permitted by law) shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than ten
percent in principal amount of the Notes at the time outstanding determined in
accordance with Section 9.4, or to any suit instituted by any Noteholder for
the enforcement of the payment of the principal of or premium, if any, or
interest on any Note on or after the due date expressed in such Note or to any
suit for the enforcement of the right to convert any Note in accordance with
the provision of Article XV.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee, prior to the occurrence of an Event of Default and after the curing of
all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, expect that
(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the
Trust Indenture Act, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture and the Trust Indenture Act against the
Trustee; and
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(2) in the absence of bad faith and willful misconduct on
the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein);
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Trustee, unless the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the
Notes at the time outstanding determined as provided in Section 9.4 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(d) whether or not therein provided, every provision of
this Indenture relating to the conduct or affecting the liability of, or
affording protection to, the Trustee shall be subject to the provisions of this
Section.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 8.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except
as otherwise provided in Section 8.1:
(a) the Trustee may rely and shall be protected in acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon or other paper
or document believed by it in good faith to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
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(c) the Trustee may consult with counsel of its selection
and any advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or liability
as a condition to so proceeding; the reasonable expenses of every such
examination shall be paid by the Company or, if paid by the Trustee or any
predecessor Trustee, shall be repaid by the Company upon demand;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed by it with due
care hereunder;
(g) the Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture;
(h) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate; and
(i) The Trustee, any authenticating agent, any paying
agent, any Note registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner
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or pledgee of the Notes, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, authenticating agent, paying
agent, Note registrar or such other agent.
SECTION 8.3. NO RESPONSIBILITY FOR RECITALS, ETC. The
recitals contained herein and in the Notes (except in the Trustee's certificate
of authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application
by the Company of any Notes or the proceeds of any Notes authenticated and
delivered by the Trustee in conformity with the provisions of this Indenture.
SECTION 8.4. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR
REGISTRAR MAY OWN NOTES. The Trustee, any paying agent, any conversion agent
or Note registrar, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights it would have if it were not
Trustee, paying agent, conversion agent or Note registrar.
SECTION 8.5. MONIES TO BE HELD IN TRUST. Subject to the
provisions of Section 13.4, all monies received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as may be agreed from time to time by the Company and the Trustee.
SECTION 8.6. COMPENSATION AND EXPENSES OF TRUSTEE. The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to in
writing by the Company and the Trustee for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust), and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, willful misconduct,
recklessness or bad faith. The Company also covenants to indemnify the Trustee
in any capacity under this Indenture and its agents and any authenticating
agent for, and to hold them harmless against, any loss, liability or expense,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred without negligence, willful misconduct,
recklessness, or bad faith on the part of the Trustee or such agent or
authenticating agent, as the case may be, and arising out of or in connection
with the acceptance or administration of this trust or in any other capacity
hereunder, including the costs and expenses of defending themselves against any
claim of liability in the premises. The obligations of the Company under this
Section 8.6 to compensate or indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall be secured by a lien
prior to that of the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for
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the benefit of the holders of particular Notes. The obligation of the Company
under this Section shall survive the satisfaction and discharge of this
Indenture.
When the Trustee and its agents and any authenticating agent
incur expenses or render services after an Event of Default specified in
Section 7.1(d) or (e) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 8.7. OFFICERS CERTIFICATE AS EVIDENCE. Except as
otherwise provided in Section 8.1, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence, willful misconduct,
recklessness, or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee.
SECTION 8.8. CONFLICTING INTERESTS OF TRUSTEE. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trustee Indenture Act and this Indenture.
SECTION 8.9. ELIGIBILITY OF TRUSTEE. There shall at all
times be a Trustee hereunder which shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000. If such person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign by giving written
notice of such resignation to the Company and to the holders of Notes. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment thirty (30)
days after the mailing of such notice of resignation to the Noteholders, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Noteholder who has been a bona fide
holder of a Note or
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Notes for at least six (6) months may, subject to the provisions of Section
7.9, on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with Section
8.8 after written request therefor by the Company or by any Noteholder
who has been a bona fide holder of a Note or Notes for at least six (6)
months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.9 and shall fail to resign
after written request therefor by the Company or by any such
Noteholder; or
(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.9, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
thirty (30) days after the mailing of such notice of removal to the Trustee,
the removed Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee. In either case, such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Notes at the time outstanding may at any time remove the Trustee
and nominate a successor trustee which shall be deemed appointed as successor
trustee unless within ten (10) days after notice to the Company of such
nomination the Company objects thereto, in which case the Trustee so removed or
any Noteholder, upon the terms and conditions and otherwise as in Section
8.10(a) provided, may petition any court of competent jurisdiction for an
appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 8.10 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 8.11.
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SECTION 8.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 8.10 shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein; but, nevertheless,
on the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.6, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon request of any such successor trustee, the Company shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property and funds
held or collected by such trustee as such, except for funds held in trust for
the benefit of holders of particular Notes, to secure any amounts then due it
pursuant to the provisions of Section 8.6.
No successor trustee shall accept appointment as provided in
this Section 8.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 8.8 and be eligible under
the provisions of Section 8.9.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.11, the Company (or the former trustee, at the
written direction of the Company) shall mail or cause to be mailed notice of
the succession of such trustee hereunder to the holders of Notes at their
addresses as they shall appear on the Note register. If the Company fails to
mail such notice within ten (10) days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Company.
SECTION 8.12. SUCCESSION BY MERGER, ETC. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee (including any trust created by this Indenture), shall be the successor
to the Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided, that in the
case of any corporation succeeding to all or substantially all of the corporate
trust business of the Trustee such corporation shall be qualified under the
provisions of Section 8.8 and eligible under the provisions of Section 8.9.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture, any of the Notes shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Trustee or an authenticating
agent appointed by such successor trustee may authenticate such Notes either in
the
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name of any predecessor trustee hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Notes in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
SECTION 8.13. LIMITATION ON RIGHTS OF TRUSTEE AS CREDITOR.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Notes), the Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of the claims against the
Company (or any such other obligor).
ARTICLE IX
CONCERNING THE NOTEHOLDERS
SECTION 9.1. ACTION BY NOTEHOLDERS. Whenever in this
Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Notes may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action, the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Noteholders in person or by agent or proxy appointed in writing, or
(b) by the record of the holders of Notes voting in favor thereof at any
meeting of Noteholders duly called and held in accordance with the provisions
of Article X, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Noteholders. Whenever the Company or the
Trustee solicits the taking of any action by the holders of the Notes, the
Company or the Trustee may fix in advance of such solicitation, a date as the
record date for determining holders entitled to take such action. The record
date shall be not more than fifteen (15) days prior to the date of commencement
of solicitation of such action.
SECTION 9.2. PROOF OF EXECUTION BY NOTEHOLDERS. Subject
to the provisions of Section 8.1, 8.2 and 10.5, proof of the execution of any
instrument by a Noteholder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note registrar.
The record of any Noteholders' meeting shall be proved in the
manner provided in Section 10.6.
SECTION 9.3. WHO ARE DEEMED ABSOLUTE OWNERS. The Company,
the Trustee, any paying agent, any conversion agent and any Note registrar may
deem the person in whose name such Note shall be registered upon the Note
register to be, and may treat him as, the absolute owner of
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such Note (whether or not such Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change
Repurchase Price and interest in respect of such Note, for conversion of such
Note and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any conversion agent nor any Note registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being, or upon his order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for
monies payable upon any such Note.
SECTION 9.4. COMPANY-OWNED NOTES DISREGARDED. In
determining whether the holders of the requisite aggregate principal amount at
maturity of Notes have concurred in any direction, consent, waiver or other
action under this Indenture, Notes which are owned by the Company or any other
obligor on the Notes or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any other obligor on the Notes shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided, that for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes which a
Responsible Officer knows are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 9.4 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Notes and that the pledgee is
not the Company, any other obligor on the Notes or a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee. Upon request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Notes, if any, known by the Company to be owned or held by
or for the account of any of the above described persons; and, subject to
Section 8.1, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Notes not listed therein are outstanding for the purposes of any such
determination.
SECTION 9.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 9.1, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the
evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 9.2, revoke such
action so far as concerns such Note. Except as aforesaid, any such action taken
by the holder of any Note shall be conclusive and binding upon such holder and
upon all future holders and owners of such Note and of any Notes issued in
exchange or substitution therefor, irrespective of whether any notation in
regard thereto is made upon such Note or any Note issued in exchange or
substitution therefor.
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ARTICLE X
NOTEHOLDERS' MEETINGS
SECTION 10.1. PURPOSES OF MEETINGS. A meeting of
Noteholders may be called at any time and from time to time pursuant to the
provisions of this Article X for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or
to give any directions to the Trustee permitted under this Indenture,
or to consent to the waiving of any default or Event of Default
hereunder and its consequences, or to take any other action authorized
to be taken by Noteholders pursuant to any of the provisions of Article
VII;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VIII.
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
11.2; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount of
the Notes under any other provision of this Indenture or under
applicable law.
SECTION 10.2. CALL OF MEETINGS BY TRUSTEE. The Trustee may
at any time call a meeting of Noteholders to take any action specified in
Section 10.1, to be held at such time and at such place at a location within 10
miles of the Corporate Trust Office or the Borough of Manhattan, The City of
New York, as the Trustee shall determine. Notice of every meeting of the
Noteholders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting and the
establishment of any record date pursuant to Section 9.1, shall be mailed to
holders of Notes at their addresses as they shall appear on the Note register.
Such notice shall also be mailed to the Company. Such notices shall be mailed
not less than twenty (20) nor more than ninety (90) days prior to the date
fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if
the holders of all Notes then outstanding are present in person or by proxy or
if notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
SECTION 10.3. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least ten percent in aggregate principal amount
of the Notes then outstanding, shall have requested the Trustee to call a
meeting of Noteholders, by written request setting forth in reasonable detail
the action proposed
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to be taken at the meeting, and the Trustee shall not have mailed the notice of
such meeting within twenty (20) days after receipt of such request, then the
Company or such Noteholders may determine the time and the place at any
location within 10 miles of the Corporate Trust Office or the Borough of
Manhattan, The City of New York for such meeting and may call such meeting to
take any action authorized in Section 10.1, by mailing notice thereof as
provided in Section 10.2.
SECTION 10.4. QUALIFICATIONS FOR VOTING. To be entitled to
vote at any meeting of Noteholders a person shall (a) be a holder of one or
more Notes on the record date pertaining to such meeting or (b) be a person
appointed by an instrument in writing as proxy by a holder of one or more
Notes. The only persons who shall be entitled to be present or to speak at any
meeting of Noteholders shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee and its counsel and
any representatives of the Company and its counsel.
SECTION 10.5. REGULATIONS. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Noteholders, in regard to proof of
the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Noteholders as provided in Section 10.3, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote at the meeting.
Subject to the provisions of Section 9.4, at any meeting each
Noteholder or proxy holder shall be entitled to one vote for each $1,000
principal amount at maturity of Notes held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not outstanding and ruled by the chairman of the meeting to
be not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Notes held by him or instruments in writing as
aforesaid duly designating him as the proxy to vote on behalf of other
Noteholders. Any meeting of Noteholders duly called pursuant to the provisions
of Section 10.2 or 10.3 may be adjourned from time to time by the holders of
majority of the aggregate principal amount of Notes represented at the meeting,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 10.6. VOTING. The vote upon any resolution
submitted to any meeting of Noteholders shall be by written ballot on which
shall be subscribed the signatures of the holders of Notes or of their
representatives by proxy and the principal amount of the Notes held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall
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count all votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written reports
in duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary
of the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as provided
in Section 10.2. The record shall show the principal amount of the Notes voting
in favor of or against any resolution. The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 10.7. NO DELAY OF RIGHTS BY MEETING. Nothing in
this Article X contained shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to make provision with respect to the conversion
rights of the holders of Notes pursuant to the requirements of Section 15.6 and
the redemption obligations of the Company pursuant to the requirements of
Section 3.5(e).
(b) subject to Article IV, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes, any property or
assets;
(c) to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article XII.
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of Directors and the Trustee
shall consider to be for the benefit of the
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holders of Notes, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant, restriction
or condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default.
(e) to provide for the issuance under this Indenture of
Notes in coupon form (including Notes registrable as to principal only) and to
provide for exchangeability of such Notes with the Notes issued hereunder in
fully registered form and to make all appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to matters
or questions arising under this Indenture which shall not materially adversely
affect the interests of the holders of the Notes;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Notes; or
(h) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect or maintain the
qualifications of this Indenture under the Trust Indenture Act, or under any
similar federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion, enter into
any supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 11.1 may be executed by the Company and the Trustee without the
consent of the holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 11.2.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
NOTEHOLDERS. With the consent (evidenced as provided in Article IX) of the
holders of not less than a majority in aggregate principal amount at maturity
of the Notes at the time outstanding, the Company, when authorized by the
resolutions of the Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or any
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supplemental indenture or of modifying in any manner the rights of the holders
of the Notes; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, change the rate of accrual or extend the time of
payment in connection with the Original Issue Discount, or reduce the principal
amount at maturity, accrued Original Issue Discount, Issue Price, Redemption
Price, Fundamental Change Redemption Price or interest, change the obligation
of the Company to repurchase any Note upon the happening of a Fundamental
Change in a manner adverse to holders of Notes, impair the right of any
Noteholder to institute suit for the payment thereof, make the principal amount
at maturity thereof, or accrued Original Issue Discount, Redemption Price,
Fundamental Change Repurchase Price or interest thereon, payable in any coin or
currency other than that provided in the Notes, or modify the provisions of
this Indenture with respect to the subordination of the Notes in a manner
adverse to the Noteholders in any material respect, without the consent of the
holder of each Note so affected, or (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all Notes then outstanding.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders
under this Section 11.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURE. Any
supplemental indenture executed pursuant to the provisions of this Article XI
shall comply with the Trust Indenture Act, as then in effect; provided, that
this Section 11.3 shall not require such supplemental indenture or the Trustee
to be qualified under the Trust Indenture Act prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to such supplemental
indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article XI, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture
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shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 11.4. NOTATION ON NOTES. Notes authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article XI may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Notes so modified as to conform,
in the opinion of the Trustee and the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may, at the
Company's expense, be prepared and executed by the Company, authenticated by
the Trustee (or an authenticating agent duly appointed by the Trustee pursuant
to Section 16.11) and delivered in exchange for the Notes then outstanding,
upon surrender of such Notes then outstanding.
SECTION 11.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL
INDENTURE TO BE FURNISHED TRUSTEE. The Trustee, subject to the provisions of
Sections 8.1 and 8.2, may receive an Officers' Certificate and an Opinion of
counsel as conclusive evidence that any supplemental indenture executed
pursuant hereto complies with the requirements of this Article XI.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 12.1. COMPANY MAY CONSOLIDATE ETC. ON CERTAIN
TERMS. Subject to the provisions of Section 12.2, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of
the Company with or into any other corporation or corporations (whether or not
affiliated with the Company), or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance or lease (or successive sales, conveyances
or leases) of all or substantially all of the property of the Company, to any
other corporation (whether or not affiliated with the Company), authorized to
acquire and operate the same and which shall be organized under the laws of the
United States of America, any state thereof or the District of Columbia;
provided, that upon any such consolidation, merger, sale, conveyance or lease,
the due and punctual payment of the principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change
Repurchase Price and interest in respect of all of the Notes, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company,
shall be expressly assumed, by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee by the corporation (if other
than the Company) formed by such consolidation, or into which the Company shall
have been merged, or by the corporation which shall be acquired or leased such
property, and such supplemental indenture shall provide for the applicable
conversion rights set forth in Section 15.6.
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SECTION 12.2. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In
case of any such consolidation, merger, sale, conveyance or lease and upon the
assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
due and punctual payment of the principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change
Repurchase Price and interest in respect of all of the Notes and due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Company, such successor corporation shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of
CORESTAFF, Inc. any or all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver, or cause to be authenticated and
delivered, any Notes which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any Notes
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Notes so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the execution
hereof. In the event of any such consolidation, merger, sale, conveyance or
lease, the person named as the "Company" in the first paragraph of this
Indenture or any successor which shall thereafter have become such in the
manner prescribed in this Article XII may be dissolved, wound up and liquidated
at any time thereafter and such person shall be released from its liabilities
as obligor and maker of the Notes and from its obligations under this
Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form (but not in substance) may be made
in the Notes thereafter to be issued as may be appropriate.
SECTION 12.3. OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The
Trustee, subject to Sections 8.1 and 8.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.1. DISCHARGE OF INDENTURE. When (a) the Company
shall deliver to the Trustee for cancellation all Notes theretofore
authenticated (other than any Notes which have been destroyed, lost or stolen
and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled, or (b) all the Notes
not theretofore
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canceled or delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon
redemption of all the Notes (other than any Notes which shall have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for
which other Notes shall have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including principal
amount at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Repurchase Price and interest due or to become due to
such date of maturity or redemption date, as the case may be, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect (except as to (i) remaining rights of registration of transfer,
substitution and exchange and conversion of Notes, (ii) rights hereunder of
Noteholders to receive payments of principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change
Repurchase Price and interest in respect of the Notes and the other rights,
duties and obligations of Noteholders, as beneficiaries hereof with respect to
the amounts, if any, so deposited with the Trustee and (iii) the rights,
obligations and immunities of the Trustee hereunder), and the Trustee, on
demand of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel as required by Section 16.5 and at the cost and expense of the Company,
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture; the Company, however, hereby agreeing to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred by the
Trustee and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Notes.
SECTION 13.2. DEPOSITED MONIES TO BE HELD IN TRUST BY
TRUSTEE. Subject to Section 13.4, all monies deposited with the Trustee
pursuant to Section 13.1 and not in violation of Article IV shall be held in
trust for the sole benefit of the Noteholders and not to be subject to the
subordination provisions of Article IV, and such monies shall be applied by the
Trustee to the payment, either directly or through any paying agent (including
the Company if acting as its own paying agent), to the holders of the
particular Notes for the payment or redemption of which such monies have been
deposited with the Trustee, of all sums due and to become due thereon for
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Repurchase Price and interest, if any.
SECTION 13.3. PAYING AGENT TO REPAY MONIES HELD. Upon the
satisfaction and discharge of this Indenture, all monies then held by any
paying agent of the Notes (other than the Trustee) shall, upon written request
of the Company, be repaid to it or paid to the Trustee, and thereupon such
paying agent shall be released from all further liability with respect to such
monies.
SECTION 13.4. RETURN OF UNCLAIMED MONIES. Subject to the
requirements of applicable law, any monies deposited with or paid to the
Trustee for payment of the principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Repurchase Price
or interest in respect of Notes and not applied but remaining unclaimed
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by the holders of Notes for two years after the date upon which such amount in
respect of such Notes, as the case may be, shall have become due and payable,
shall be repaid to the Company by the Trustee on demand and all liability of
the Trustee shall thereupon cease with respect to such monies; and the holder
of any of the Notes shall thereafter look only to the Company for any payment
which such holder may be entitled to collect unless an applicable abandoned
property law designates another Person.
SECTION 13.5. REINSTATEMENT. If the Trustee or the paying
agent is unable to apply any money in accordance with Section 13.2 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 13.1 until such time as
the Trustee or the paying agent is permitted to apply all such money in
accordance with Section 13.2; provided, however, that if the Company makes any
payment of principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Repurchase Price or interest in
respect of any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the holders of such Notes to receive such
payment from the money held by the Trustee or paying agent.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.1. INDENTURE AND NOTES SOLELY CORPORATE
OBLIGATIONS. No recourse for the payment of the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Repurchase Price or interest on any Note, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture or in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
employee, agent, officer, or director or subsidiary, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
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ARTICLE XV
CONVERSION OF NOTES
SECTION 15.1. RIGHT TO CONVERT. Subject to and upon
compliance with the provisions of this Indenture, the holder of any Note shall
have the right, at his or her option, at any time after ninety (90) days
following the latest date of original issuance of the Notes (without taking
into account any over-allotment option granted to the Notes Representatives as
described in the Registration Statement) and prior to the close of business on
August _______ , 2004 (except that, with respect to any Note or portion of a
Note which shall be called for redemption, such right shall terminate, except
as provided in Section 15.2 or Section 3.4, at the close of business on the
Business Day next preceding the date fixed for redemption of such Note or
portion of a Note unless the Company shall default in payment due upon
redemption thereof) to convert the principal amount at maturity of any such
Note, or any portion of such principal amount at maturity which is $1,000 or an
integral multiple thereof, into that number of fully paid and non-assessable
shares of Common Stock (as such shares shall then be constituted) obtained by
dividing the principal amount at maturity of the Note or portion thereof
surrendered for conversion by $1,000 and multiplying the result so obtained by
the Conversion Rate in effect at such time, by surrender of the Note so to be
converted in whole or in part in the manner provided, together with any
required funds, in Section 15.2. A holder of Notes is not entitled to any
rights of a holder of Common Stock until such holder has converted his Notes to
Common Stock, and only to the extent such Notes are deemed to have been
converted to Common Stock under this Article XV.
SECTION 15.2. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF
COMMON STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In order
to exercise the conversion privilege with respect to any Note in certificated
form, the holder of any such Note to be converted in whole or in part shall
surrender such Note, duly endorsed, at an office or agency maintained by the
Company pursuant to Section 5.2, accompanied by the funds, if any, required by
the penultimate paragraph of this Section 15.2, and shall give written notice
of conversion in the form provided on the Notes (or such other notice which is
acceptable to the Company) to the office or agency that the holder elects to
convert such Note or the portion thereof specified in said notice. Such notice
shall also state the name or names (with address or addresses) in which the
certificate or certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued, and shall be accompanied by transfer taxes,
if required pursuant to Section 15.7. Each such Note surrendered for conversion
shall, unless the shares issuable on conversion are to be issued in the same
name as the registration of such Note, be duly endorsed by, or be accompanied
by instruments of transfer in form satisfactory to the Company duly executed
by, the holder or his duly authorized attorney.
In order to exercise the conversion privilege with respect to
any interest in a Note in global form, the beneficial holder must complete the
appropriate instruction form for conversion pursuant to the Depository's book-
entry conversion program, deliver by book-entry delivery an interest in such
Note in global form, furnish appropriate endorsements and transfer documents if
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required by the Company or the Trustee or conversion agent, and pay the funds,
if any, required by this Section 15.2 and any transfer taxes if required
pursuant to Section 15.7.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance with any
restrictions on transfer if shares issuable on conversion are to be issued in a
name other than that of the Noteholder (as if such transfer were a transfer of
the Note or Notes (or portion thereof) so converted), the Company shall issue
and shall deliver to such holder at the office or agency maintained by the
Company for such purpose pursuant to Section 5.2, a certificate or certificates
for the number of full shares of Common Stock issuable upon such conversion of
such Note or portion thereof in accordance with the provisions of this Article
and a check or cash in respect of any fractional interest in respect of a share
of Common Stock arising upon such conversion, as provided in Section 15.3. In
case any Note of a denomination greater than $1,000 shall be surrendered for
partial conversion, and subject to Section 2.3, the Company shall execute and
the Trustee shall authenticate and deliver to the holder of the Note so
surrendered, without charge to him, a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion
(including Original Issue Discount) of the surrendered Note.
Each conversion shall be deemed to have been effected as to
any such Note (or portion thereof) on the date on which the requirements set
forth above in this Section 15.2 have been satisfied as to such Note (or
portion thereof), and the person in whose name any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the holder of record of the shares
represented thereby; provided, however, that any such surrender on any date
when the stock transfer books of the Company shall be closed shall constitute
the person in whose name the certificates are to be issued as the record holder
thereof for all purposes on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion Rate in
effect on the date upon which such Note shall be surrendered.
Except as described in this Section, holders of the Notes will
not be entitled to any payment or adjustment on account of accrued Original
Issue Discount or accrued and unpaid interest upon conversion of the Notes.
The Company's delivery of the fixed number of shares of Common Stock into which
the Notes are convertible will be deemed to satisfy the Company's obligation to
pay the principal amount at maturity of the Notes and all accrued interest and
Original Issue Discount that has not previously been (or is not simultaneously
being) paid. The Common Stock is treated as issued first in payment of accrued
interest and Original Issue Discount and then in payment of principal.
Any Note or portion thereof surrendered for conversion during
the period from the close of business on the record date for any interest
payment date to the close of business on the Business Day next preceding the
following interest payment date shall (unless such Note or portion thereof
being converted shall have been called for redemption during the period from
the close of business on such record date to the close of business on the
Business Day next preceding the
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following interest payment date) be accompanied by payment, in New York
Clearing House funds or other funds acceptable to the Company, of an amount
equal to the interest otherwise payable on such interest payment date on the
principal amount being converted; provided, however, that no such payment need
be made if there shall exist at the time of conversion a default in the payment
of interest on the Notes. Except as provided above in this Section 15.2, no
payment or other adjustment shall be made for accrued Original Issue Discount
or interest accrued on any Note converted or for dividends on any shares issued
upon the conversion of such Note as provided in this Article.
Upon the conversion of an interest in a Note in global form,
the Trustee, or the Custodian at the direction of the Trustee, shall make a
notation on such Note in global form as to the reduction in the principal
amount at maturity represented thereby.
SECTION 15.3. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES.
No fractional shares of Common Stock or scrip representing fractional shares
shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion shall be computed on the basis
of the aggregate principal amount at maturity of the Notes (or specified
portions thereof to the extent permitted hereby) so surrendered. If any
fractional share of stock would be issuable upon the conversion of any Note or
Notes, the Company shall make an adjustment and payment therefor in cash at the
current market value thereof to the holder of Notes. The current market value
of a share of Common Stock shall be the Closing Price on the first Business Day
immediately preceding the day on which the Notes (or specified portions
thereof) are deemed to have been converted.
SECTION 15.4. CONVERSION RATE. The conversion rate shall
be as specified in the form of Note (herein called the "Conversion Rate")
attached as Exhibit A hereto, subject to adjustment as provided in this Article
XV.
SECTION 15.5. ADJUSTMENT OF CONVERSION RATE. The
Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall pay a dividend or make a
distribution, in shares of its Common Stock, on its Common Stock, the
Conversion Rate in effect at the opening of business on the date
following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution shall be increased by
multiplying such Conversion Rate by a fraction of which the denominator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the numerator
shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase
to become effective immediately after the opening of business on the
day following the date fixed for such determination. The Company will
not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company. If any dividend or distribution
of the type described in this Section 15.5(a) is declared but is not so
paid or made and not required to be so paid or made, the Conversion
Rate shall again be adjusted to the
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Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.
(b) In case the Company shall issue rights or warrants to
all holders of its Common Stock entitling them (for a period expiring within 45
days after the date fixed for determination of stockholders entitled to receive
such rights or warrants) to subscribe for or purchase Common Stock at a price
per share less than the Current Market Price per share of Common Stock (as
defined in Section 15.5(g) below) at the record date for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Rate
in effect immediately prior thereto shall be adjusted so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the date fixed for determination of stockholders entitled
to receive such rights or warrants by a fraction the denominator of which shall
be the number of shares of Common Stock outstanding at the close of business on
the date fixed for determination of stockholders entitled to receive such
rights or warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered would purchase at such Current Market
Price and the numerator of which shall be the number of shares of Common Stock
outstanding on the date fixed for determination of stockholders entitled to
receive such rights or warrants plus the number of additional shares of Common
Stock offered for subscription or purchase. Such adjustment shall be made
successively whenever any such rights or warrants are issued, and shall become
effective immediately after the opening of business on the day following the
record date for the determination of the stockholders entitled to receive such
rights or warrants. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
To the extent that shares of Common Stock are not delivered or required to be
delivered after the expiration of such rights or warrants, the Conversion Rate
shall be readjusted to the Conversion Rate which would then be in effect had
the adjustments made upon the issuance of such rights or warrants been made on
the basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights or warrants are not so issued and not required to be
so issued, the Conversion Rate shall again be adjusted to be the Conversion
Rate which would then be in effect if such record date for the determination of
stockholders entitled to receive such rights or warrants had not been fixed.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Rate
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and
conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such reduction or increase,
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as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(d) In case the Company shall distribute to all holders of
its Common Stock shares of any class of capital stock of the Company (other
than Common Stock) or evidences of its indebtedness or assets (excluding cash
dividends or other distributions to the extent paid from retained earnings of
the Company) or rights or warrants to subscribe for or purchase any of its
securities (excluding those referred to in Section 15.5(b) above) (any of the
foregoing hereinafter in this Section 15.5(d) called the "Distributed
Securities"), then in each such case the Conversion Rate shall be adjusted so
that the same shall equal the rate determined by multiplying the Conversion
Rate in effect on the record date with respect to such distribution by a
fraction of which the denominator shall be the Current Market Price per share
of the Common Stock on such record date less the fair market value on such
record date (as determined by the Board of Directors of the Company, whose
determination shall be conclusive, and described in a certificate filed with
the Trustee) of the Distributed Securities applicable to one share of Common
Stock and the numerator of which shall be the Current Market Price per share of
the Common Stock on the record date for the determination of shareholders
entitled to receive such distribution; such adjustment shall become effective
immediately prior to the opening of business on the day following such record
date. Notwithstanding the foregoing, in the event the then fair market value
(as so determined) of the portion of the Distributed Securities applicable to
one share of Common Stock is equal to or greater than the Current Market Price
of the Common Stock on the relevant record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon conversion the amount of Distributed Securities such
holder would have received had such holder converted each Note on such record
date. In the event that such distribution is not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate which would then
be in effect if such distribution had not been declared. If the Board of
Directors determines the fair market value of any distribution for purposes of
this subsection (d) by reference to the actual or when issued trading market
for any securities, it must in doing so consider the prices in such market over
the same period used in computing the Current Market Price of the Common Stock.
Notwithstanding the foregoing provisions of this subsection
(d), no adjustment shall be made thereunder for any distribution of Distributed
Securities if the Company makes proper provision so that each holder of a Note
who converts such Note (or any portion thereof) after the record date for such
distribution shall be entitled to receive upon such conversion, in addition to
the shares of Common Stock issuable upon such conversion, the amount and kind
of Distributed Securities that such holder would have been entitled to receive
if such holder had, immediately prior to such record date, converted such Note
into Common Stock, provided that, with respect to any Distributed Securities
that are convertible, exchangeable or exercisable, the foregoing provision
shall only apply to the extent (and so long as) the Distributed Securities
receivable upon conversion of such Note would be
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convertible, exchangeable or exercisable, as applicable, without any loss of
rights or privileges for a period of at least 60 days following conversion of
such Note.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding (x) any quarterly
cash dividend on the Common Stock to the extent the aggregate cash dividend per
share of Common Stock in any fiscal quarter does not exceed the greater of (A)
the amount per share of Common Stock of the next preceding quarterly cash
dividend on the Common Stock to the extent such preceding quarterly dividend
did not require any adjustment of the Conversion Rate pursuant to this Section
15.05(e) (as adjusted to reflect subdivisions or combinations of the Common
Stock), and (B) 3.75% of the average of the last reported sales price of the
Common Stock (determined as provided in Section 15.05(g)) during the ten
Trading Days (as defined in Section 15.05(g)) next preceding the date of
declaration of such dividend and (y) any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary), then, in such case, unless the Company elects to
reserve such cash for distribution to the holders of the Notes upon the
conversion of the Notes so that any such holder converting Notes will receive
upon such conversion, in addition to the shares of Common Stock to which such
holder is entitled, the amount of cash which such holder would have received if
such holder had, immediately prior to the record date for such distribution of
cash, converted its Notes into Common Stock, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the close of business on such
record date by a fraction of which the denominator shall be such Current Market
Price of the Common Stock on the record date less the amount of cash so
distributed (and not excluded as provided above) applicable to one share of
Common Stock and the numerator of which shall be the Current Market Price of
the Common Stock on such record date; such adjustment to be effective
immediately prior to the opening of business on the day following the record
date; provided, however, that in the event the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price of the Common Stock on the record date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Noteholder
shall have the right to receive upon conversion the amount of cash such holder
would have received had such holder converted each Note on the record date. If
such dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if
such dividend or distribution had not been declared.
If any adjustment is required to be made as set forth in this
subsection (e) as a result of a distribution that is a quarterly dividend, such
adjustment shall be based upon the amount by which such distribution exceeds
the amount of the quarterly cash dividend permitted to be excluded pursuant
hereto. If an adjustment is required to be made as set forth in this
subsection (e) above as a result of a distribution that is not a quarterly
dividend, such adjustment shall be based upon the full amount of the
distribution.
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(f) In case a tender or exchange offer made by the Company
or any subsidiary of the Company for all or any portion of the Common Stock
shall expire and such tender or exchange offer shall involve the payment by the
Company or such subsidiary of consideration per share of Common Stock having a
fair market value (as determined by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof, whose
determination shall be conclusive, and described in a resolution of the Board
of Directors or such duly authorized committee thereof, as the case may be, at
the last time (the "Expiration Time") tenders or exchanges may be made pursuant
to such tender or exchange offer (as it shall have been amended), that exceeds
the Current Market Price of the Common Stock on the Trading Day next succeeding
the Expiration Time, the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the Expiration Time by a fraction of which the denominator
shall be the number of shares of Common Stock outstanding (including any
tendered or exchanged shares) on the Expiration Time multiplied by the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time and the numerator of which shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration payable
to stockholders based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased Shares")
and (y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares) on the Expiration Time and the Current Market Price of
the Common Stock on the Trading Day next succeeding the Expiration Time; such
adjustment to become effective immediately prior to the opening of business on
the day following the Expiration Time. If the Company is obligated to purchase
shares pursuant to any such tender or exchange offer, but the Company is
permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted
to be the Conversion Rate which would then be in effect if such tender or
exchange offer had not been made.
(g) For purposes of this Section 15.5, the following terms
shall have the meaning indicated:
(i) "Current Market Price" per share of Common
Stock at any date shall be deemed to be the
average of the last reported sale prices for
the ten (10) consecutive Trading Days (as
defined below) preceding the day before the
record date with respect to any distribution,
issuance or other event requiring such
computation.
(ii) "Closing Price" with respect to any
securities on any day shall mean the closing
sale price regular way on such day or, in
case no such sale takes place on such day,
the average of the reported closing bid and
asked prices, regular way, in each case on
the Nasdaq National
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Market or New York Stock Exchange, or, if such security is
not listed or admitted to trading on such
quotation system or exchange, on the
principal national security exchange or
quotation system on which such security is
quoted or listed or admitted to trading, or,
if not quoted or listed or admitted to
trading on any national securities exchange
or quotation system, the average of the
closing bid and asked prices of such security
on the over-the-counter market on the day in
question as reported by the National
Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or if
not so available, in such manner as furnished
by any New York Stock Exchange member firm
selected from time to time by the Board of
Directors for that purpose, or a price
determined in good faith by the Board of
Directors, whose determination shall be
conclusive and described in a Board
Resolution.
(iii) "fair market value" shall mean the amount
which a willing buyer under no compulsion to
buy would pay a willing seller under no
compulsion to sell in an arm's length
transaction.
(iv) "record date" shall mean, with respect to any
dividend, distribution or other transaction
or event in which the holders of Common Stock
have the right to receive any cash,
securities or other property or in which the
Common Stock (or other applicable security)
is exchanged for or converted into any
combination of cash, securities or other
property, the date fixed for determination of
stockholders entitled to receive such cash,
securities or other property (whether such
date is fixed by the Board of Directors or by
statute, contract or otherwise).
(v) "Trading Day" shall mean (x) if the
applicable security is quoted on the Nasdaq
National Market, a day on which trades may be
made on thereon or (y) if the applicable
security is listed or admitted for trading on
the New York Stock Exchange or another
national security exchange, a day on which
the New York Stock Exchange or another
national security exchange is open for
business or (z) if the applicable security is
not so listed, admitted for trading or
quoted, any day other than a Saturday or
Sunday or a day on which banking institutions
in the State of New York are authorized or
obligated by law or executive order to close.
(h) Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company's capital stock (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"):
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(i) are deemed to be transferred with such shares of Common Stock,
(ii) are not exercisable, and
(iii) are also issued in respect of future issuances of Common Stock,
shall not be deemed distributed for purposes of this Section 15.5 until the
occurrence of the earliest Trigger Event. In addition, in the event of any
distribution of rights or warrants, or any Trigger Event with respect thereto,
that shall have resulted in an adjustment to the Conversion Rate under this
Section 15.5, (1) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Stock as of the date of such redemption or
repurchase, and (2) in the case of any such rights or warrants all of which
shall have expired without exercise by any holder thereof, the Conversion Rate
shall be readjusted as if such issuance had not occurred.
(i) No adjustment to the Conversion Rate shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
subsection (i) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
Fifteen shall be made by the Company and shall be made to the nearest cent or
to the nearest one hundredth of a share, as the case may be. Anything in this
Section 15.5 to the contrary notwithstanding, the Company shall be entitled to
make such increases in the Conversion Rate, in addition to those required by
this Section 15.5, as it in its discretion shall determine to be advisable in
order that any stock dividends, subdivision of shares, distribution of rights
to purchase stock or securities, or any distribution of securities convertible
into or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable. To the extent permitted by applicable law,
the Company from time to time may increase the Conversion Rate by any amount
for any period of time if the period is at least 20 days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company,
which determination shall be conclusive. Whenever the Conversion Rate is so
increased, the Company shall mail to Noteholders and file with the Trustee and
the conversion agent a notice of the increase. The Company shall mail the
notice at least 15 days before the date the increased Conversion Rate takes
effect. The notice shall state the increased Conversion Rate and the period it
will be in effect.
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(j) Whenever the Conversion Rate is adjusted, as herein
provided, the Company shall promptly file with the Trustee and any conversion
agent other than the Trustee an Officers' Certificate setting forth the
Conversion Rate after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on
which such adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to each Noteholder at its last address
appearing on the Note register provided for in Section 2.5 of this Indenture,
within twenty (20) days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of any such adjustment.
(k) In any case in which this Section 15.5 provides that
an adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i) issuing to
the holder of any Note converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such holder any amount in cash or additional
shares in lieu of any fractional share pursuant to Section 15.3.
(l) In case of a tender or exchange offer made by a Person
other than the Company or any subsidiary for an amount which increases the
offeror's ownership of Common Stock to more than 25% of the Common Stock
outstanding and shall involve the payment by such Person of consideration per
share of Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) at the Expiration Time that exceeds the
Current Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, and in which, as of the Expiration Time the Board of Directors
is not recommending rejection of the offer, the Conversion Rate shall be
increased so that the same shall equal the price determined by multiplying the
Conversion Rate in effect immediately prior to the Expiration Time by a
fraction of which the denominator shall be the number of shares of Common Stock
outstanding (including any tendered or exchange shares) on the Expiration Time
multiplied by the Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time and the numerator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all Purchased Shares and (y) the
product of the number of shares of Common Stock outstanding (less any Purchased
Shares) on the Expiration Time and the Current Market Price of the Common Stock
on the Trading Day next succeeding the Expiration Time, such increase to become
effective immediately prior to the opening of business on the day following the
Expiration Time. In the event that such Person is obligated to purchase shares
pursuant to any such tender or exchange offer, but such Person is permanently
prevented by applicable law from effecting any such purchases or all such
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purchases are rescinded, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such tender or exchange offer
had not been made. Notwithstanding the foregoing, the adjustment described in
this Section 15.5(l) shall not be made if, as of the Expiration Time, the
offering documents with respect to such offer disclose a plan or intention to
cause the Company to engage in any transaction described in Article XII.
SECTION 15.6. EFFECT OF RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE. If any of the following events occur, namely (i) any
reclassification or change of the outstanding shares of Common Stock (other
than a subdivision or combination to which Section 15.5(c) applies), (ii) any
consolidation, merger or combination of the Company with another corporation as
a result of which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock, or (iii) any sale or conveyance of the
properties and assets of the Company as, or substantially as, an entirety to
any other corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, then the Company or
the successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture) providing that such Note shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock available to convert all
such Notes) immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance assuming such holder of Common Stock
did not exercise his rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such consolidation, merger,
statutory exchange, sale or conveyance (provided, that, if the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or conveyance is not the same for each share
of Common Stock in respect of which such rights of election shall not have been
exercised ("nonelecting-share")), then for the purposes of this Section 15.6
the kind and amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance for each non-
electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares. Such supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Notes, at his address
appearing on the Note register provided for in Section 2.5 of this Indenture,
within twenty (20) days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.
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The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 15.6 applies to any event or occurrence,
Section 15.5 shall not apply.
SECTION 15.7. TAXES ON SHARES ISSUED. The issue of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Note converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the
person or persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 15.8. RESERVATION OF SHARES; SHARES TO BE FULLY
PAID; COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK. The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Notes from time to time as such Notes are
presented for conversion.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the shares
of Common Stock issuable upon conversion of the Notes, the Company will take
all corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue shares of such Common
Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Notes will upon issue be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued upon conversion, the Company will in
good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
The Company further covenants that if at any time the Common
Stock shall be listed on the Nasdaq National Market, the New York Stock
Exchange or any other national securities exchange or automated quotation
system the Company will, if permitted by the rules of such exchange or
automated quotation system, list and keep listed, so long as the Common Stock
shall be so listed on such exchange or automated quotation system, all Common
Stock issuable upon conversion of the Notes; provided, however, that if rules
of such exchange or automated quotation system permit the Company to defer the
listing of
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such Common Stock until the first conversion of the Notes into Common Stock in
accordance with the provisions of this Indenture, the Company covenants to list
such Common Stock issuable upon conversion of the Notes in accordance with the
requirements of such exchange or automated quotation system at such time.
SECTION 15.9. RESPONSIBILITY OF TRUSTEE. The Trustee and
any other conversion agent shall not at any time be under any duty or
responsibility to any holder of Notes to determine whether any facts exist
which may require any adjustment of the Conversion Price, or with respect to
the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Note; and the Trustee and any other conversion agent make no
representations with respect thereto. Subject to the provisions of Section 8.1,
neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the
surrender of any Note for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this
Article. Without limiting the generality of the foregoing, neither the Trustee
nor any conversion agent shall be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture entered
into pursuant to Section 15.6 relating either to the kind or amount of shares
of stock or securities or property (including cash) receivable by Noteholders
upon the conversion of their Notes after any event referred to in such Section
15.6 or to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 8.1, may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee
prior to the execution of any such supplemental indenture) with respect
thereto.
SECTION 15.10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an adjustment in the
Conversion Price pursuant to Section 15.5; or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or purchase
any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the
Common Stock of the Company (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or
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of any consolidation or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding -up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed
to each holder of Notes at his address appearing on the Note register provided
for in Section 2.5 of this Indenture, as promptly as possible but in any event
at least fifteen (15) days prior to the applicable date hereinafter specified,
a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights or warrants, or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or
occur, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.1. PROVISIONS BINDING ON COMPANY'S SUCCESSORS.
All the covenants, stipulations, promises and agreements by the Company
contained in this Indenture shall bind its successors and assigns whether so
expressed or not.
SECTION 16.2. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any
act or proceeding by any provision of this Indenture authorized or required to
be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
SECTION 16.3. ADDRESSES FOR NOTICES, ETC. Any notice or
demand which by any Indenture is required or permitted to be given or served by
the Trustee or by the holders of Notes on the Company shall be deemed to have
been sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to CORESTAFF, Inc., Five Post Oak Park, 0000 Xxxx Xxx Xxxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000, Attention: Treasurer. Any notice, direction,
request or demand
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hereunder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
to the Corporate Trust Office, which office is, at the date as of which this
Indenture is dated, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000.
The Trustee, by notice to the Company, may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail, postage prepaid, at his address as it
appears on the Note register and shall be sufficiently given to him if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 16.4. GOVERNING LAW. This Indenture and each Note
shall be deemed to be a contract made under the laws of New York, and for all
purposes shall be construed in accordance with the laws of New York, without
regard to principles of conflicts of laws.
SECTION 16.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT; CERTIFICATES TO TRUSTEE. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall 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 statement or opinion contained in such certificate
or opinion is based; (3) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
SECTION 16.6. LEGAL HOLIDAYS. In any case where the date
of maturity of interest on or principal of the Notes or the date fixed for
redemption of any Note will not be a Business Day, then payment of such
interest on or principal of the Notes need not be made on such
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date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period from and after such date.
SECTION 16.7. TRUST INDENTURE ACT. This Indenture is
hereby made subject to, and shall be governed by, the provisions of the Trust
Indenture Act required to be part of and to govern indentures qualified under
the Trust Indenture Act; provided, however, that, unless otherwise required by
law, notwithstanding the foregoing, this Indenture and the Notes issued
hereunder shall not be subject to the provisions of subsections (a)(1), (a)(2),
and (a)(3) of Section 314 of the Trust Indenture Act as now in effect or as
hereafter amended or modified; provided, further, that this Section 16.7 shall
not require this Indenture or the Trustee to be qualified under the Trust
Indenture Act prior to the time such qualification is in fact required under
the terms of the Trust Indenture Act, nor shall it constitute any admission or
acknowledgment by any party to such supplemental indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in an indenture qualified under the Trust Indenture Act, such
required provision shall control.
SECTION 16.8. NO SECURITY INTEREST CREATED. Nothing in
this Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction
where property of the Company or its subsidiaries is located.
SECTION 16.9. BENEFITS OF INDENTURE. Nothing in this
Indenture or in the Notes, expressed or implied, shall give to any Person,
other than the parties hereto, any paying agent, any authenticating agent, any
Note registrar and their successors hereunder, the holders of Notes and the
holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 16.10. TABLE OF CONTENTS, HEADINGS, ETC. The table
of contents and the titles 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 hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 16.11. AUTHENTICATING AGENT. The Trustee may appoint
an authenticating agent which shall be authorized to act on its behalf and
subject to its direction in the authentication and delivery of Notes in
connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Sections 2.4, 2.5, 2.6, 2.7, 3.3 and 3.5, as
fully to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and
delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes "by the
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Trustee" and a certificate of authentication executed on behalf of the Trustee
by an authenticating agent shall be deemed to satisfy any requirement hereunder
or in the Notes for the Trustee's certificate of authentication. Such
authenticating agent shall at all times be a person eligible to serve as
trustee hereunder pursuant to Section 8.9.
Any corporation into which any authenticating agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
authenticating agent shall be a party, or any corporation succeeding to the
corporate trust business of any authenticating agent, shall be the successor of
the authenticating agent hereunder, if such successor corporation is otherwise
eligible under this Section 16.11, without the execution or filing of any paper
or any further act on the part of the parties hereto or the authenticating
agent or such successor corporation.
Any authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee
may at any time terminate the agency of any authenticating agent by giving
written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time any authenticating agent shall cease to be eligible under this
Section, the Trustee shall either promptly appoint a successor authenticating
agent or itself assume the duties and obligations of the former authenticating
agent under this Indenture, and upon such appointment of a successor
authenticating agent, if made, shall give written notice of such appointment of
a successor authenticating agent to the Company and shall mail notice of such
appointment of a successor authenticating agent to all holders of Notes as the
names and addresses of such holders appear on the Note register.
The Trustee agrees to pay to the authenticating agent from
time to time reasonable compensation for its services (to the extent
pre-approved by the Company in writing), and the Trustee shall be entitled to
be reimbursed for such pre-approved payments, subject to Section 8.6.
The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this Section
16.11 shall be applicable to any authenticating agent.
SECTION 16.12. EXECUTION IN COUNTERPARTS. This Indenture may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
The Bank of New York hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly signed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first written above.
CORESTAFF, INC.
By:_________________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
THE BANK OF NEW YORK, as Trustee
By:_________________________________
Name:______________________________
Title: Vice President
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EXHIBIT A
[For global Note only:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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CORESTAFF, INC.
___% CONVERTIBLE SUBORDINATED NOTE DUE 2004
No. ______ CUSIP
CORESTAFF, Inc., a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the "Company"),
which term includes any successor corporation under the Indenture referred to
on the reverse hereof, for value received hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of _________ ($_____) on _______ ,
2004, at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, or, at the option of the holder of
this Note, at the Corporate Trust Office, 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, and to pay interest, semi-annually on
_________ and __________ of each year, commencing _______ , 1998, on said
principal sum at said office or agency, in like coin or currency, at the rate
per annum of __%, from ___________ or __________ , as the case may be, next
preceding the date of this Note to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Note, or unless no
interest has been paid or duly provided for on the Notes, in which case from
______ , 1997, until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after any
_______ or _______ , as the case may be, and before the following _______ or
________ , this Note shall bear interest from such _______ or ________ ;
provided, however, that if the Company shall default in the payment of interest
due on such _______ or __________ , then this Note shall bear interest from
the next preceding _______ or __________ to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for on such
Note, from _________, 1997. The interest payable on the Note pursuant to the
Indenture on any _______ or __________, will be paid to the person entitled
thereto as it appears in the Note register at the close of business on the
record date, which shall be the ________ or ________ (whether or not a
Business Day) next preceding such ________ or _________ , as provided in the
Indenture; provided, that any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture. Interest may, at
the option of the Company, be paid by check mailed to the registered address of
such person.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including, without limitation, provisions
subordinating the payment of principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Repurchase Price
and interest on the Notes to the prior payment in full of all Senior
Indebtedness, as defined in the Indenture, and provisions giving the holder of
this Note the right to convert this Note into Common Stock of the Company on
the terms and subject to the limitations referred to on the reverse hereof and
as more fully specified in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
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This Note shall be deemed to be a contract made under the laws
of New York, and for all purposes shall be construed in accordance with and
governed by the laws of New York, without regard to principles of conflicts of
laws.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee or a duly authorized authenticating agent under the
Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
CORESTAFF, INC.
By:______________________________
Name:
Title:
Attest:____________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the
within-named Indenture.
Dated:
__________________________, as Trustee
By:______________________________
Authorized Signatory
By:______________________________
As Authenticating Agent (if different
from Trustee)
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[FORM OF REVERSE OF NOTE]
CORESTAFF, INC.
___% CONVERTIBLE SUBORDINATED NOTE DUE 2004
This Note is one of a duly authorized issue of Notes of the
Company, designated as its ___% Convertible Subordinated Notes due 2004 (herein
called the "Notes"), limited to the aggregate principal amount at maturity of
$207,000,000 all issued or to be issued under and pursuant to an indenture
dated as of __________, 1997 (herein called the "Indenture"), between the
Company and The Bank of New York, as trustee (herein called 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.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the Issue Price, and accrued Original
Issue Discount and accrued interest, if any, through the date of declaration on
all Notes may be declared, and upon such declaration shall 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 Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount at maturity of the Notes at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the holders of the Notes; provided, however, that as
provided in the Indenture, no such supplemental indenture shall (i) extend the
fixed maturity of any Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount at maturity thereof or
Original Issue Discount thereon, or reduce any amount payable on redemption or
repurchase thereof, or impair the right of any Noteholder to institute suit for
the payment thereof, or make the principal amount at maturity thereof or
Original Issue Discount, Redemption Price, Fundamental Change Repurchase Price
or interest thereon payable in any coin or currency other than that provided in
the Note, or modify the provisions of the Indenture with respect to the
subordination of the Notes in a manner adverse to the Noteholders in any
material respect, or change the obligation of the Company to make redemption of
any Note upon the happening of a Fundamental Change in a manner adverse to the
holder of the Notes, or impair the right to convert the Notes into Common Stock
subject to the terms set forth in the Indenture, including Section 15.6
thereof, without the consent of the holder of each Note so affected or (ii)
reduce the aforesaid percentage of Notes, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of all Notes then outstanding. It is also provided in the Indenture that, prior
to any declaration accelerating the maturity of the Notes, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the holders of all of the Notes waive any past default or Event of
Default under the Indenture and its consequences except a default in the
payment of principal
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amount at maturity, Redemption Price, Fundamental Change Repurchase Price or
interest in respect of any of the Notes or a failure by the Company to convert
any Notes into Common Stock of the Company. Any such consent or waiver by the
holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Note and any Notes which may be issued in exchange or substitute
hereof, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
The indebtedness evidenced by the Notes is, to the extent and
in the manner provided in the Indenture, expressly subordinate and subject in
right of payment to the prior payment in full of all Senior Indebtedness of the
Company, as defined in the Indenture, whether outstanding at the date of the
Indenture or thereafter incurred, and this Note is issued subject to the
provisions of the Indenture with respect to such subordination. Each holder of
this Note, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney-in-fact for such purpose.
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 amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Repurchase Price and interest on this Note at the place, at the
respective times, at the rate and in the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a year
of a 360-day year or twelve 30-day months. Accrual of Original Issue Discount
shall be calculated on the basis of a 360-day year or twelve 30-day months,
compounded semi-annually. In the case of any Note (or portion thereof) which is
converted into Common Stock of the Company during the period from (but
excluding) a recorded date to (but excluding) the next succeeding interest
payment date either (i) if such Note (or portion thereof) has been called for
redemption on a redemption date which occurs during such period, or is to be
redeemed in connection with a Fundamental Change on a Fundamental Change
Redemption Date which occurs during such period, the Company shall not be
required to pay interest on such interest payment date in respect of any such
Note (or portion thereof) or (ii) if otherwise, any Note (or portion thereof)
submitted for conversion during such period shall be accompanied by funds equal
to the interest payable on such succeeding interest payment date on the
aggregate principal amount at maturity so converted.
The Notes are issuable in registered form without coupons in
denominations of $1,000 principal amount at maturity and any integral multiple
thereof. At the office or agency of the Company referred to on the face
hereof, and in the manner and subject to the limitations provided in the
Indenture, but without payment of any service charge (but with payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or exchange of Notes), Notes may be exchanged
for a like aggregate principal amount at maturity of Notes of other authorized
denominations.
The Notes will not be redeemable at the option of the Company
prior to _________, 2000. At any time on or after _________, 2000, and prior
to maturity, the Notes may be redeemed at the option of the Company as a whole,
or from time to time in part, upon mailing a notice of such redemption not less
than 30 days and not more than 60 days before the date fixed for redemption to
the holders of Notes at their last registered addresses, all as provided in the
Indenture, at the following Redemption Prices per $1,000 principal amount at
maturity (which prices reflect accrued Original Issue Discount calculated to
each such date), together in each case with accrued interest to the date fixed
for redemption. The Redemption Price of a Note redeemed between such dates
will
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include an additional amount reflecting the additional Original Issue Discount
accrued since the next preceding date in the table to the actual Redemption
Date.
(1) (2) (3)
Note Accrued Original Redemption Price
Redemption Date Issue Price Issue Discount (1) + (2)
--------------- ----------- -------------- ---------
_________, 2000 $ $ $
_________, 2001
_________, 2002
_________, 2003
_________, 2004 1,000.00
Notwithstanding the foregoing, if the date fixed for redemption is a ______ or
_______, then the interest payable on such date shall be paid to the holder of
record on the next preceding ________ or _________.
The Notes are not subject to redemption through the operation
of any sinking fund.
If there shall occur a Fundamental Change at any time prior to
________, 2004, then each Noteholder shall have the right, at such holder's
option, to require the Company to redeem all of such holder's Notes, or any
portion thereof that is an integral multiple of $1,000 principal amount at
maturity, on the date (the "Fundamental Change Repurchase Date") that is thirty
(30) days after the date of the Company's notice of such Fundamental Change (or,
if such 30th day is not a Business Day, the next succeeding Business Day). Any
such redemption of Notes shall be made on the Fundamental Change Repurchase Date
at a price (the "Fundamental Change Repurchase Price") equal to the Issue Price
plus accrued Original Issue Discount to the Fundamental Change Redemption Date;
provided, that if the Applicable Price (as defined in the Indenture) with
respect to the Fundamental Change is less than the Reference Market Price (as
defined in the Indenture), the Company shall redeem such Notes at a price equal
to the foregoing redemption price multiplied by the fraction obtained by
dividing the Applicable Price by the Reference Market Price. In each case, the
Company shall also pay to such holders accrued interest to, but excluding, the
Fundamental Change Redemption Date on the redeemed Notes; provided, that if such
Fundamental Change Repurchase Date is an interest payment date, then the
interest payable on such date shall be paid to the holder of record of the Note
on the next preceding record date. The Company shall mail to all holders of
record of the Notes a notice of the occurrence of a Fundamental Change and of
the redemption right arising as a result thereof on or before the 10th day after
the occurrence of such Fundamental Change. For a Note to be so repaid at the
option of the holder, the Company must receive at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, such Note with the form entitled "Option to Elect Repayment Upon a
Fundamental Change" on the reverse thereof duly completed, together with such
Notes duly
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endorsed for transfer, on or before the 30th day after the date of such notice
(or if such 30th day is not a Business Day, the immediately preceding Business
Day).
Subject to the provisions of the Indenture, the holder hereof
has the right, at its option, at any time after 90 days following the latest
date of original issuance of the Notes and prior to the close of business on
_________ , 2004, or, as to all or any portion hereof called for redemption,
prior to the close of business on the Business Day immediately preceding the
date fixed for redemption (unless the Company shall default in payment due upon
redemption thereof), to convert the principal hereof or any portion of such
principal which is $1,000 principal amount at maturity or an integral multiple
thereof, into that number of fully paid and nonassessable shares of Company's
Common Stock, as said shares shall be constituted at the date of conversion,
obtained by dividing the principal amount at maturity of this Note or portion
thereof to be converted by $1,000 and multiplying the result so obtained by
_______ (the "Conversion Rate") or such Conversion Rate as adjusted from time
to time as provided in the Indenture, upon surrender of this Note, together
with a conversion notice as provided in the Indenture, to the Company at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, or at the option of such holder, the Corporate
Trust Office, and, unless the shares issuable on conversion are to be issued in
the same name as this Note, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the holder or by
his duly authorized attorney. No adjustment in respect of accrued Original
Issue Discount, interest or dividends will be made upon any conversion;
provided, however, that if this Note shall be surrendered for conversion during
the period from the close of business on any record date for the payment of
interest to the close of business on the Business Day preceding the interest
payment date, this Note (unless it or the portion being converted shall have
been called for redemption during the period from the close of business on any
record date for the payment of interest to the close of business on the
Business Day preceding the interest payment date) must be accompanied by an
amount, in New York Clearing House funds or other funds acceptable to the
Company, equal to the interest payable on such interest payment date on the
principal amount at maturity being converted. No fractional shares will be
issued upon any conversion, but an adjustment in cash will be made, as provided
in the Indenture, in respect of any fraction of a share which would otherwise
be issuable upon the surrender of any Note or Notes for conversion.
Any Notes called for redemption, unless surrendered for
conversion on or before the close of business on the date fixed for redemption,
may be deemed to be purchased from the holder of such Notes at an amount equal
to the applicable Redemption Price, together with accrued interest to the date
fixed for redemption, by one or more investment bankers or other purchasers who
may agree with the Company to purchase such Notes from the holders thereof and
convert them into Common Stock of the Company and to make payment for such
Notes as aforesaid to the Trustee in trust for such holders.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, or at the option of the holder of this Note, at the Corporate Trust
Office, a new Note or Notes of authorized denominations for an
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equal aggregate principal amount at maturity will be issued to the transferee
in exchange thereof, subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company, the Trustee, any authenticating agent, any paying
agent, any conversion agent and any Note registrar may deem and treat the
registered holder hereof as the absolute owner of this Note (whether or not
this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon made by anyone other than the Company or any Note
registrar), for the purpose of receiving payment hereof, or on account hereof,
for the conversion hereof and for all other purposes, and neither the Company
nor the Trustee nor any other authenticating agent nor any paying agent nor any
other conversion agent nor any Note registrar shall be affected by any notice
to the contrary. All payments made to or upon the order of such registered
holder shall, to the extent of the sum or sums paid, satisfy and discharge
liability for monies payable on this Note.
No recourse for the payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Repurchase Price or any interest on this Note, or for any
claim based hereon or otherwise in respect hereof, and no recourse under or upon
any obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer or director or subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, 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
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
This Note shall be deemed to be a contract made under the laws
of New York, and for all purposes shall be construed in accordance with the
laws of New York, without regard to principles of conflicts of laws.
Terms used in this Note and defined in the Indenture are used
herein as therein defined.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of
the face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in UNIF GIFT MIN ACT --
common
TEN ENT -- as tenants by the _________________ Custodian
entireties (Cust)
JT TEN -- as joint tenants _____________________ under
with right of survivorship and (Minor)
not as tenants in common
Uniform Gifts to Minors Act
____________________(State)
Additional abbreviations may also be used
though not in the above list.
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CONVERSION NOTICE
To: CORESTAFF, INC.
The undersigned registered owner of this Note hereby
irrevocably exercises the option to convert this Note, or the portion hereof
(which is $1,000 principal amount at maturity or an integral multiple thereof)
below designated, into shares of Common Stock of CORESTAFF, Inc. in accordance
with the terms of the Indenture referred to in this Note, and directs that the
shares issuable and deliverable upon such conversion, together with any check
in payment for fractional shares and any Notes representing any unconverted
principal amount hereof, be issued and delivered to the registered holder
hereof unless a different name has been indicated below. If shares or any
portion of this Note not converted are to be issued in the name of a person
other than the undersigned, the undersigned will check the appropriate box
below and pay all transfer taxes payable with respect thereto. Any amount
required to be paid to the undersigned on account of interest accompanies this
Note.
Dated:
* Sign exactly as name appears on the other side
of the Note:
----------------------------------------
Signature(s)
----------------------------------------
Signature Guarantee
Fill in for registration of shares of
Common Stock if to be issued, and
Notes if to be delivered, other than
to and in the name of the registered holder:
---------------------------------
(Name)
---------------------------------
(Street Address)
---------------------------------
(City, State and Zip Code)
Please print name and address
Principal amount at maturity to be converted
(if less than all): $___________
----------------------------------
Social Security or Other Taxpayer
Identification Number
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ASSIGNMENT
For value received _____________________ hereby sell(s),
assign(s) and transfer(s) unto ______________________ (Please insert social
security or other Taxpayer Identification Number of assignee) the within Note,
and hereby irrevocably constitutes and appoints ____________________ attorney
to transfer the said Note on the books of the Company, with full power of
substitution in the premises.
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OPTION TO ELECT REPAYMENT
UPON A FUNDAMENTAL CHANGE
TO: CORESTAFF, INC.
The undersigned registered owner of this Note hereby
irrevocably acknowledges receipt of a notice from CORESTAFF, Inc. (the
"Company") as to the occurrence of a Fundamental Change with respect to the
Company and requests and instructs the Company to repay the entire principal
amount at maturity of this Note, or the portion thereof (which is $1,000
principal amount at maturity or an integral multiple thereof) below designated,
in accordance with the terms of the Indenture referred to in this Note at the
redemption price, together with accrued interest to, but excluding, such date,
to the registered holder hereof.
----------------------------
Dated:
--------------- ----------------------------
Signature(s)
NOTICE: The above signatures of
the holder(s) hereof must
correspond with the name as
written upon the face of the
Note in every particular without
alteration or enlargement or
any change whatever.
Principal amount at maturity to be
repaid (if less than all):
$_______________
_________________________________
Social Security or Other Taxpayer
Identification Number
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