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Exhibit 99.3
COMFORCE CORPORATION
as Issuer,
and
THE BANK OF NEW YORK,
as Trustee
$50,000,000
15% SENIOR SECURED PIK DEBENTURES DUE 2009, SERIES A
15% SENIOR SECURED PIK DEBENTURES DUE 2009, SERIES B
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INDENTURE
Dated as of November 26, 1997
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) ........................... 7.10
(a)(2) ........................... 7.10
(a)(3) ........................... N.A.
(a)(4) ........................... N.A.
(b) ........................... 7.8; 7.10
(c) ........................... N.A.
311(a) ........................... 7.11
(b) ........................... 7.11
(c) ........................... N.A.
312(a) ........................... 2.5
(b) ........................... 10.3
(c) ........................... 10.3
313(a) ........................... 7.6
(b)(1) ........................... N.A.
(b)(2) ........................... 7.6
(c) ........................... 7.6
(d) ........................... 7.6
314(a) ........................... 4.2; 4.10; 10.2
(b) ........................... N.A.
(c)(1) ........................... 10.4
(c)(2) ........................... 10.4
(c)(3) ........................... N.A.
(d) ........................... N.A.
(e) ........................... 10.5
(f) ........................... 4.9
315(a) ........................... 7.1
(b) ........................... 7.5; 10.2
(c) ........................... 7.1
(d) ........................... 7.1
(e) ........................... 6.11
316(a)(last sentence) ........................... 10.6
(a)(1)(A) ........................... 6.5
(a)(1)(B) ........................... 6.4
(a)(2) ........................... N.A.
(b) ........................... 6.7
317(a)(1) ........................... 6.8
(a)(2) ........................... 6.9
(b) ........................... 2.4
318(a) ........................... 12.1
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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INDENTURE dated as of November 26, 1997, between COMFORCE Corporation, a
Delaware corporation (as further defined below, the "Company"), and The Bank of
New York, as Trustee (the "Trustee").
The Company has duly authorized the creation and issuance of up to
$25,000,000 aggregate principal amount of 15% Senior Secured PIK Debentures due
2009 (the "Initial Securities") and $25,000,000 aggregate principal amount of
15% Senior Secured PIK Debentures due 2009 (the "Exchange Securities", and
together with the Initial Securities, the "Securities") and, to provide
therefor, the Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make the Securities, when duly issued and
executed by the Company, and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company have been done.
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) in a Permitted Business; (ii) the Capital Stock
of a Person that becomes a Restricted Subsidiary as a result of the acquisition
of such Capital Stock by the Company or a Restricted Subsidiary of the Company;
(iii) Capital Stock constituting a minority interest in any Person that at such
time is a Restricted Subsidiary of the Company; or (iv) Permitted Investments of
the type and in the amounts described in clause (viii) of the definition
thereof; provided, however, that, in the case of clauses (ii) and (iii), such
Restricted Subsidiary is primarily engaged in a Permitted Business.
"Additional Exchange Securities" means an additional series of 15% Senior
Secured PIK Debentures due 2009, to be issued in exchange for Additional
Securities in accordance with the terms of any exchange and registration rights
agreement applicable thereto.
"Additional Private Exchange Debenture" shall mean any Private Exchange
Debenture issued in respect of an Additional Security.
"Additional Securities" has the meaning set forth in Section 2.2(d).
"Additional PIK Securities" has the meaning set forth in Section 2.2(d).
"Affiliate" of any specified person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Disposition" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan) of shares of Capital Stock of (or
any other equity interests in) a Restricted Subsidiary (other than directors'
qualifying shares) or of any other property or other assets (each referred to
for the purposes of this definition as a "disposition") by the Company or any of
its Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction) other than (i) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly-Owned Subsidiary, (ii) a disposition of inventory in the
ordinary course of business, (iii) a disposition of obsolete or worn out
equipment or equipment that is no longer useful in the conduct of the business
of the Company and its Restricted Subsidiaries and that is disposed of in each
case in the ordinary course of business, (iv) dispositions of property for net
proceeds which, when taken collectively with the net proceeds of any other such
dispositions under this clause (iv) that were consummated since the beginning of
the calendar year in which such disposition is consummated, do not exceed $1.0
million, and (v) transactions permitted pursuant to Section 5.1 of this
Indenture. Notwithstanding anything to the contrary contained above, a
Restricted Payment made in compliance with Section 4.4 of this Indenture shall
not constitute an Asset Disposition except for purposes of determinations of the
Consolidated Coverage Ratio.
"Attributable Indebtedness" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the product of
the numbers of years (rounded upwards to the nearest month) from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption multiplied by the amount of such payment by (ii)
the sum of all such payments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, as amended, or any
similar United States federal or state law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.
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"Board of Directors" means the Board of Directors of any Person or any
committee thereof duly authorized to act on behalf of such Board of Directors.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations, rights in or other equivalents
of or interests in (however designated) equity of such Person, including any
Preferred Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date such lease may be terminated without penalty.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof, (iii) certificates of deposit, time
deposits and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year and overnight bank deposits, in each case with any commercial bank having
capital and surplus in excess of $500 million, (iv) repurchase obligations, for
underlying securities of the types described in clauses (ii) and (iii) entered
into with any financial institution meeting the qualifications specified in
clause (iii) above, (v) commercial paper rated A-1 or the equivalent thereof by
Xxxxx'x or S&P and in each case maturing within one year after the date of
acquisition, (vi) investment funds investing 95% of their assets in securities
of the types described in clauses (i)-(v) above, (vii) readily marketable direct
obligations issued by any state of the United States of America or any political
subdivision thereof having one of the two highest rating categories obtainable
from either Xxxxx'x or S&P and (viii) Indebtedness or preferred stock issued by
Persons with a rating of "A" or higher from S&P or "A2" or higher from Xxxxx'x.
"Cedel Bank" has the meaning set forth in Section 2.1.
"Change of Control" means the occurrence of any of the following events:
(a) any sale, lease, exchange or other transfer (collectively, a "Transfer") (in
one transaction or a series of related transactions) of all or substantially all
of the assets of the Company and its Subsidiaries; or
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(b) a majority of the Board of Directors of the Company or of any direct or
indirect holding company thereof shall consist of Persons who are not Continuing
Directors of the Company; (c) the acquisition by any Person or Group (other than
the Management Group) of the power, directly or indirectly, to vote or direct
the voting of securities having more than 35% of the ordinary voting power for
the election of directors of the Company or of any direct or indirect holding
company thereof; provided that no Change of Control shall be deemed to occur
pursuant to this clause (c), so long as the Management Group owns an amount of
securities representing a greater portion of such ordinary voting power than
such Person or Group; or (d) the acquisition by any Person or Group (including,
but not limited to, the Management Group) of the power, directly or indirectly,
to vote or direct the voting of securities having more than 49.9% of the
ordinary voting power for the election of directors of the Company or any direct
or indirect holding company thereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means COMFORCE Corporation, a Delaware corporation until a
successor replaces it and, thereafter, means the successor.
"Commission" or "SEC" means the U.S. Securities and Exchange Commission or
its successor.
"Consolidated Cash Flow" for any period means the Consolidated Net Income
for such period, plus the following to the extent deducted in calculating such
Consolidated Net Income: (i) income tax expense, (ii) Consolidated Interest
Expense, (iii) depreciation expense, (iv) amortization expense, (v) exchange or
translation losses on foreign currencies, and (vi) all other non-cash items
reducing Consolidated Net Income (excluding any non-cash item to the extent it
represents an accrual of or reserve for cash disbursements for any subsequent
period prior to the stated maturity of the Securities) and less, (x) the
aggregate amount of contingent and "earnout" payments in respect of any
Permitted Business acquired by the Company or any Restricted Subsidiary that are
paid in cash during such period and (y) to the extent added in calculating
Consolidated Net Income, (A) exchange or translation gains on foreign currencies
and (B) non-cash items (excluding such non-cash items to the extent they
represent an accrual for cash receipts reasonably expected to be received prior
to the Stated Maturity of the Securities), in each case for such period.
Notwithstanding the foregoing, the income tax expense, depreciation expense and
amortization expense of a Subsidiary of the Company shall be included in
Consolidated Cash Flow only to the extent (and in the same proportion) that the
net income of such Subsidiary was included in calculating Consolidated Net
Income.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of Consolidated Cash Flow for the period of
the most recent four consecutive fiscal quarters ending prior to the date of
such determination and as to which financial statements are available, to (ii)
Consolidated Interest Expense for such four fiscal quarters; provided, however,
that (A) if the Company or any of its Restricted Subsidiaries has incurred any
Indebtedness since the
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beginning of such period and through the date of determination of the
Consolidated Coverage Ratio that remains outstanding or if the transaction
giving rise to the need to calculate Consolidated Coverage Ratio is an
incurrence of Indebtedness, or both, Consolidated Cash Flow and Consolidated
Interest Expense for such period shall be calculated after giving effect on a
pro forma basis to (1) such Indebtedness as if such Indebtedness had been
incurred on the first day of such period (provided that if such Indebtedness is
incurred under a revolving credit facility (or similar arrangement or under any
predecessor revolving credit or similar arrangement) only that portion of such
Indebtedness that constitutes the one year projected average balance of such
Indebtedness (as determined in good faith by the Board of Directors of the
Company) shall be deemed outstanding for purposes of this calculation), and (2)
the discharge of any other Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period, (B) if since the
beginning of such period any Indebtedness of the Company or any of its
Restricted Subsidiaries has been repaid, repurchased, defeased or otherwise
discharged (other than Indebtedness under a revolving credit or similar
arrangement unless such revolving credit Indebtedness has been permanently
repaid and the underlying commitment terminated and has not been replaced),
Consolidated Interest Expense for such period shall be calculated after giving
pro forma effect thereto as if such Indebtedness had been repaid, repurchased,
defeased or otherwise discharged on the first day of such period, (C) if since
the beginning of such period the Company or any of its Restricted Subsidiaries
shall have made any Asset Disposition or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Asset Disposition,
Consolidated Cash Flow for such period shall be reduced by an amount equal to
the Consolidated Cash Flow (if positive) attributable to the assets which are
the subject of such Asset Disposition for such period or increased by an amount
equal to the Consolidated Cash Flow (if negative) attributable thereto for such
period, and Consolidated Interest Expense for such period shall be (i) reduced
by an amount equal to the Consolidated Interest Expense attributable to any
Indebtedness of the Company or any of its Restricted Subsidiaries repaid,
repurchased, defeased or otherwise discharged with respect to the Company and
its continuing Restricted Subsidiaries in connection with such Asset Disposition
for such period (or, if the Capital Stock of any Restricted Subsidiary of the
Company is sold, the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to the extent the
Company and its continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale) and (ii) increased by interest income attributable
to the assets which are the subject of such Asset Disposition for such period,
(D) if since the beginning of such period the Issuer or any of its Restricted
Subsidiaries (by merger or otherwise) shall have made an Investment in any
Restricted Subsidiary of the Company (or any Person which becomes a Restricted
Subsidiary of the Company as a result thereof) or an acquisition of assets
occurring in connection with a transaction causing a calculation to be made
hereunder which constitutes all or substantially all of an operating unit of a
business, Consolidated Cash Flow and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto (including the
incurrence of any Indebtedness) as if such Investment or acquisition occurred on
the first day of such period and (E) if since the beginning of such period any
Person (that subsequently became a Restricted Subsidiary of the Company or was
merged with or into the Company or any Restricted Subsidiary
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of the Company since the beginning of such period) shall have made any Asset
Disposition, Investment or acquisition of assets that would have required an
adjustment pursuant to clause (C) or (D) above if made by the Company or a
Restricted Subsidiary of the Company during such period, Consolidated Cash Flow
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto as if such Asset Disposition, Investment or
acquisition occurred on the first day of such period. For purposes of this
definition, whenever pro forma effect is to be given to an acquisition of
assets, the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible financial or accounting officer of the Issuer. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months).
"Consolidated Interest Expense" means, for any period, the total
consolidated interest expense of the Company and its Restricted Subsidiaries
determined in accordance with GAAP, plus, to the extent not included in such
interest expense (i) interest expense attributable to Capitalized Lease
Obligations, (ii) capitalized interest, (iii) non-cash interest expense, (iv)
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, (v) interest actually paid by the
Company or any such Restricted Subsidiary under any Guarantee of Indebtedness or
other obligation of any other Person, (vi) net payments (whether positive or
negative) pursuant to Interest Rate Agreements, (vii) the cash contributions to
any employee stock ownership plan or similar trust to the extent such
contributions are used by such plan or trust to pay interest or fees to any
Person (other than the Company) in connection with Indebtedness Incurred by such
plan or trust and (viii) cash and Disqualified Stock dividends in respect of all
Preferred Stock of Subsidiaries and Disqualified Stock of the Company held by
Persons other than the Company or a Wholly-Owned Subsidiary and less (a) to the
extent included in such interest expense, the amortization of capitalized debt
issuance costs and (b) interest income. Notwithstanding the foregoing, the
Consolidated Interest Expense with respect to any Restricted Subsidiary of the
Company, that was not a Wholly-Owned Subsidiary, shall be included only to the
extent (and in the same proportion) that the net income of such Restricted
Subsidiary was included in calculating Consolidated Net Income.
"Consolidated Net Income" means, for any period, the consolidated net
income (loss) of the Company and its consolidated Subsidiaries determined in
accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income: (i) any net income (loss) of any person acquired
by the Company or any of its Restricted Subsidiaries in a pooling of interests
transaction for any period prior to the date of such acquisition, (ii) any net
income of any Restricted Subsidiary of the Company if such Restricted Subsidiary
is subject to restrictions, directly or indirectly, on the payment of dividends
or the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company (other than restrictions in effect on the Issue Date
with respect
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to a Restricted Subsidiary of the Company and other than restrictions that are
created or exist in compliance with Section 4.10 of this Indenture), (iii) any
gain or loss realized upon the sale or other disposition of any assets of the
Company or its consolidated Restricted Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) which are not sold or otherwise disposed of in the
ordinary course of business and any gain or loss realized upon the sale or other
disposition of any Capital Stock of any Person, (iv) any extraordinary gain or
loss, (v) the cumulative effect of a change in accounting principles, (vi) the
net income of any Person, other than a Restricted Subsidiary, except to the
extent of the lesser of (A) cash dividends or distributions actually paid to the
Company or any of its Restricted Subsidiaries by such Person and (B) the net
income of such Person (but in no event less than zero), and the net loss of such
Person (other than an Unrestricted Subsidiary) shall be included only to the
extent of the aggregate Investment of the Company or any of its Restricted
Subsidiaries in such Person and (viii) any non-cash expenses attributable to
grants or exercises of employee stock options. Notwithstanding the foregoing,
for the purpose of Section 4.4 of this Indenture only, there shall be excluded
from Consolidated Net Income any dividends, repayments of loans or advances or
other transfers of assets from Unrestricted Subsidiaries to the Company or a
Restricted Subsidiary to the extent such dividends, repayments or transfers
increase the amount of Restricted Payments permitted pursuant to clause
(a)(3)(D) thereof.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its consolidated Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as of the end of the
most recent fiscal quarter of the Company ending prior to the taking of any
action for the purpose of which the determination is being made and for which
financial statements are available (but in no event ending more than 135 days
prior to the taking of such action), as (i) the par or stated value of all
outstanding Capital Stock of the Company plus (ii) paid in capital or capital
surplus relating to such Capital Stock plus (iii) any retained earnings or
earned surplus less (A) any accumulated deficit and (B) any amounts attributable
to Disqualified Stock.
"Continuing Director" of any Person means, as of the date of determination,
any Person who (i) was a member of the Board of Directors of such Person on the
date of the Securities Indenture or (ii) was nominated for election or elected
to the Board of Directors of such Person with the affirmative vote of a majority
of the Continuing Directors of such Person who were members of such Board of
Directors at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.2 or such other address as to which the Trustee
may give notice to the Company.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement as to which such
Person is a party or a beneficiary.
"Default" means any event that is, or after notice or passage of time or
both would
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be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under the Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"Disqualified Stock" means any Capital Stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (other than an event which
would constitute a Change of Control), (i) matures (excluding any maturity as
the result of an optional redemption by an issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
final stated maturity of the Securities, or (ii) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (a) debt
securities or (b) any Capital Stock referred to in (i) above, in each case at
any time prior to the final Stated Maturity of the Securities.
"Equity Offering" means an offering for cash by the Company of its common
stock, or options, warrants or rights with respect to its common stock.
"Euroclear" has the meaning set forth in Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto.
"Exchange Offer" means the registration by the Company under the Securities
Act pursuant to a registration statement of the offer by the Company to each
Securityholder of the Initial Securities to exchange all the Initial Securities
held by such Securityholder for the Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Initial
Securities held by such Securityholder, all in accordance with the terms and
conditions of the Registration Rights Agreement.
"Exchange Securities" means the 15% Senior Secured PIK Debentures due 2009,
Series B, to be issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company or its Restricted
Subsidiaries in existence on the Issue Date, plus interest accrued, thereon,
after application of the
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net proceeds of the New Credit Facility, the Securities and the 12% Senior Notes
due 2007 of COMFORCE Operating, Inc. as described in the Offering Memorandum.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Company acting reasonably
and in good faith and shall be evidenced by a Board Resolution of the Board of
Directors of the Company delivered to the Trustee.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the date of this Indenture, including those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
this Indenture shall be computed in conformity with GAAP.
"Group" shall mean any "group" for purposes of Section 13(d) of the
Exchange Act.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the Person in whose name a Security is
registered on the Registrar's books.
"Incur" means issue, assume, guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such person becomes a Restricted Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be incurred
by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if any)
in respect of indebtedness of such
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Person for borrowed money, (ii) the principal of and premium (if any) in respect
of obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect of letters
of credit or other similar instruments (including reimbursement obligations with
respect thereto) (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (i), (ii) and
(v) ) entered into in the ordinary course of business of such Person to the
extent that such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third business day
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit), (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services (except (x) trade
payables and accrued expenses incurred in the ordinary course of business and
(y) contingent or "earnout" payment obligations in respect of any Permitted
Business acquired by the Company or any Restricted Subsidiary), which purchase
price is due more than six months after the date of placing such property in
service or taking delivery and title thereto or the completion of such services,
(v) all Capitalized Lease Obligations and all Attributable Indebtedness of such
Person, (vi) all Indebtedness of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person, (vii)
all Indebtedness of other Persons to the extent Guaranteed by such Person,
(viii) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or, with
respect to any Restricted Subsidiary of the Company, any Preferred Stock of such
Restricted Subsidiary to the extent such obligation arises on or before the
Stated Maturity of the Securities (but excluding, in each case, accrued
dividends) with the amount of Indebtedness represented by such Disqualified
Stock or Preferred Stock, as the case may be, being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed repurchase
price; provided that, for purposes hereof the "maximum fixed repurchase price"
of any Disqualified Stock or Preferred Stock, as the case may be, which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock or Preferred Stock, as the case may be, as if such
Disqualified Stock or Preferred Stock, as the case may be, were purchased on any
date on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based on the fair market value of such
Disqualified Stock or Preferred Stock, as the case may be, such fair market
value shall be determined in good faith by the Board of Directors of the Company
and (ix) to the extent not otherwise included in this definition, obligations
under Currency Agreements and Interest Rate Agreements. Unless specifically set
forth above, the amount of Indebtedness of any Person at any date shall be the
outstanding principal amount of all unconditional obligations as described
above, as such amount would be reflected on a balance sheet prepared in
accordance with GAAP, and the maximum liability of such Person, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations described above at such date.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Initial Securities" has the meaning set forth in the preamble to this
Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited
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investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Interest Rate Agreement" means with respect to any Person any interest
rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate hedge agreement or other similar agreement
or arrangement as to which such Person is party or a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts payable on the balance sheet of such Person) or other
extension of credit (including by way of Guarantee or similar arrangement, but
excluding any debt or extension of credit represented by a bank deposit other
than a time deposit) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such Person. For purposes of
Section 4.4 of this Indenture, (i) "Investment" shall include the portion
(proportionate to the Company's equity interest in a Restricted Subsidiary to be
designated as an Unrestricted Subsidiary) of the fair market value of the net
assets of such Restricted Subsidiary of the Company at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary in an amount (if positive) equal to
(x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time that such Subsidiary is so redesignated a Restricted
Subsidiary; and (ii) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors and
evidenced by a resolution of such Board of Directors certified in an Officers'
Certificate to the Trustee.
"Issue Date" means the date the Securities are originally issued.
"Legal Holiday" has the meaning ascribed in Section 10.8.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Management Group" means Xxxxx X. Xxxxxxx, Xxxxxxxxxxx X. Xxxxxx and
Xxxxxxx Xxxxxxxxxx.
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"Maturity" means, with respect to any Security, the date on which any
principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal, by
sinking fund payment or by declaration of acceleration, call for redemption or
purchase or otherwise.
"Maturity Date" means December 1, 2009.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Cash" from an Asset Disposition means cash payments received
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to the properties or assets subject to such Asset Disposition) therefrom in each
case net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all Federal, state, foreign and local
taxes required to be paid or accrued as a liability under GAAP, as a consequence
of such Asset Disposition, (ii) all payments made on any Indebtedness which is
secured by any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) all distributions
and other payments required to be made to any Person owning a beneficial
interest in assets subject to sale or minority interest holders in Subsidiaries
or joint ventures as a result of such Asset Disposition, (iv) the deduction of
appropriate amounts to be provided by the seller as a reserve, in accordance
with GAAP, against any liabilities associated with the assets disposed of in
such Asset Disposition, provided, however, that upon any reduction in such
reserves (other than to the extent resulting from payments of the respective
reserved liabilities), Net Available Cash shall be increased by the amount of
such reduction to reserves, and retained by the Company or any Restricted
Subsidiary of the Company after such Asset Disposition and (v) any portion of
the purchase price from an Asset Disposition placed in escrow (whether as a
reserve for adjustment of the purchase price, for satisfaction of indemnities in
respect of such Asset Disposition or otherwise in connection with such Asset
Disposition) provided, however, that upon the termination of such escrow, Net
Available Cash shall be increased by any portion of funds therein released to
the Company or any Restricted Subsidiary.
"Net Cash Proceeds," with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result of such issuance or sale.
"New Credit Facility" means the Credit Agreement, to be dated as of
November 26, 1997, among COMFORCE Operating, Inc., the Company and its indirect
subsidiaries, Xxxxxx
-12-
Financial, Inc., and any other financial institutions from time to time party
thereto, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any Restricted Subsidiary (a) provides any guarantee or credit support of
any kind (including any undertaking, guarantee, indemnity, agreement or
instrument that would constitute Indebtedness) or (b) is directly or indirectly
liable (as a guarantor, general partner or otherwise) and (ii) no default with
respect to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"Non-U.S. Person" means any Person who is not a U.S. Person.
"Notes" means the Senior Notes of COMFORCE Operating, Inc. due 2007.
"Offering Memorandum" means the Offering Memorandum dated November 19,
1997, pursuant to which the Initial Securities were offered, and any supplements
thereto;
"Officer" means the Chairman of the Board, the Vice-Chairman of the Board,
the Chief Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer or the Secretary of the Company.
"Officer's Certificate" shall mean a certificate signed by two Officers of
the Company, at least one of whom shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion, in form and substance
acceptable to the Trustee, from legal counsel who is acceptable to the Trustee
and which complies, if applicable, with Section 10.5.
"Paying Agent" has the meaning provided in Section 2.3.
"Permitted Business" means any business which is the same as or related,
ancillary or complementary to any of the businesses of the Company and its
Restricted Subsidiaries on the date of this Indenture, as reasonably determined
by the Company's Board of Directors.
-13-
"Permitted Investment" means an Investment by the Company or any of its
Restricted Subsidiaries in (i) a Wholly-Owned Subsidiary of the Company;
provided, however, that the primary business of such Wholly-Owned Subsidiary is
a Permitted Business; (ii) another Person if as a result of such Investment such
other Person becomes a Wholly-Owned Subsidiary of the Company or is merged or
consolidated with or into, or transfers or conveys all or substantially all its
assets to, the Company or a Wholly-Owned Subsidiary of the Company; provided,
however, that in each case such Person's primary business is a Permitted
Business; (iii) Temporary Cash Investments; (iv) receivables owing to the
Company or any of its Restricted Subsidiaries, created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; (v) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course of
business; (vi) loans and advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary in an aggregate amount outstanding at any one time not to exceed
$250,000 to any one employee or $1.0 million in the aggregate; (vii) stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any of its Restricted
Subsidiaries or in satisfaction of judgments or claims; (viii) a Person engaged
in a Permitted Business or a loan or advance by the Company the proceeds of
which are used solely to make an investment in a Person engaged in a Permitted
Business or a Guarantee by the Company of Indebtedness of any Person in which
such Investment has been made provided, however, that no Permitted Investments
may be made pursuant to this clause (viii) to the extent the amount thereof
would, when taken together with all other Permitted Investments made pursuant to
this clause (viii), exceed $5.0 million in the aggregate (plus, to the extent
not previously reinvested, any return of capital realized on Permitted
Investments made pursuant to this clause (viii), or any release or other
cancellation of any Guarantee constituting such Permitted Investment); (ix)
Persons to the extent such Investment is received by the Company or any
Restricted Subsidiary as consideration for asset dispositions effected in
compliance with the covenant described under Section 4.8 of this Indenture; (x)
prepayments and other credits to suppliers made in the ordinary course of
business consistent with the past practices of the Company and its Restricted
Subsidiaries; and (xi) Investments in connection with pledges, deposits,
payments or performance bonds made or given in the ordinary course of business
in connection with or to secure statutory, regulatory or similar obligations,
including obligations under health, safety or environmental obligations.
"Permitted Liens" means: (i) pledges or deposits by the Company or any
Restricted Subsidiary under workmen's compensation laws, unemployment insurance
laws, other types of social security benefits or similar legislation, or good
faith deposits in connection with bids, tenders or contracts (other than for the
payment of Indebtedness) or leases to which the Company or any Restricted
Subsidiary is a party, or deposits to secure public or statutory obligations or
deposits of cash or United States government bonds to secure surety or appeal
bonds to which the Company or any Restricted Subsidiary is a party, or deposits
as security for contested taxes or import duties or for the payment of rent, in
each case incurred by the Company or any Restricted Subsidiary in the ordinary
course of business consistent with past practice; (ii) Liens imposed by law,
such as carriers',
-14-
warehousemen's and mechanics' Liens, in each case for sums not yet due from the
Company or any Restricted Subsidiary or being contested in good faith by
appropriate proceedings by the Company or any Restricted Subsidiary, as the case
may be, or other Liens arising out of judgments or awards against the Company or
any Restricted Subsidiary with respect to which the Company or such Restricted
Subsidiary, as the case may be, will then be prosecuting an appeal or other
proceedings for review; (iii) Liens for property taxes or other taxes,
assessments or governmental charges of the Company or any Restricted Subsidiary
not yet due or payable or subject to penalties for nonpayment or which are being
contested by the Company or such Restricted Subsidiary, as the case may be, in
good faith by appropriate proceedings; (iv) Liens in favor of issuers of
performance bonds and surety bonds issued pursuant to clause (vi) under Section
4.3 of this Indenture; (v) survey exceptions, encumbrances, easements or,
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes or
zoning or other restrictions as to the use of real property of the Company or
any Restricted Subsidiary incidental to the ordinary course of conduct of the
business of the Company or such Restricted Subsidiary or as to the ownership of
properties of the Company or any Restricted Subsidiary, which, in either case,
were not incurred in connection with Indebtedness and which do not in the
aggregate materially adversely affect the value of said properties or materially
impair their use in the operation of the business of the Company or any
Restricted Subsidiary; (vi) Liens to secure Indebtedness permitted under clauses
(a)(ii) and (b)(i) under Section 4.3 of this Indenture; (vii) Liens outstanding
immediately after the Issue Date as set forth on Schedule II to this Indenture
(and not otherwise permitted by clause (vi)); (viii) Liens on property, assets
or shares of stock of any Restricted Subsidiary at the time such Restricted
Subsidiary became a Subsidiary of the Company; provided, however, that (A) if
any such Lien has been Incurred in anticipation of such transaction, such
property, assets or shares of stock subject to such Lien will have a fair market
value at the date of the acquisition thereof not in excess of the lesser of (1)
the aggregate purchase price paid or owed by the Company in connection with the
acquisition of such Restricted Subsidiary and (2) the fair market value of all
property and assets of such Restricted Subsidiary and (B) any such Lien will not
extend to any other assets owned by the Company or any Restricted Subsidiary;
(ix) Liens on property or assets at the time the Company or any Restricted
Subsidiary acquired such assets, including any acquisition by means of a merger
or consolidation with or into the Company or such Restricted Subsidiary;
provided, however, that (A) if any such Lien is Incurred in anticipation of such
transaction, such property or assets subject to such Lien will have a fair
market value at the date of the acquisition thereof not in excess of the lesser
of (1) the aggregate purchase price paid or owed by the Company or such
Restricted Subsidiary in connection with the acquisition thereof and of any
other property and assets acquired simultaneously therewith and (2) the fair
market value of all such property and assets acquired by the Company or such
Restricted Subsidiary and (B) any such Lien will not extend to any other
property or assets owned by the Company or any Restricted Subsidiary; (x) Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing to
the Company or a Wholly Owned Subsidiary; (xi) Liens to secure any extension,
renewal, refinancing, replacement or refunding (or successive extensions,
renewals, refinancings, replacements or refundings), in whole or in part, of any
Indebtedness secured by Liens referred to in any of clauses (vii), (viii) and
(ix); provided, however, that any such Lien will be limited to all or part of
the same property or assets that
-15-
secured the original Lien (plus improvements on such property) and the aggregate
principal amount of Indebtedness that is secured by such Lien will not be
increased to an amount greater than the sum of (A) the outstanding principal
amount, or, if greater, the committed amount, of the Indebtedness described
under clauses (vii), (viii) and (ix) at the time the original Lien became a
Permitted Lien under this Indenture and (B) an amount necessary to pay any
premiums, fees and other expenses Incurred by the Company in connection with
such refinancing, refunding, extension, renewal or replacement; (xii) Liens on
property or assets of the Company securing Interest Rate Agreements and Currency
Agreements so long as the related Indebtedness is, and is permitted under
Section 4.3 of this Indenture, secured by a Lien on the same property securing
the relevant Interest Rate Agreement or Currency Agreement; (xiii) Liens
securing Indebtedness incurred under (1) the Senior Debentures and (2) the New
Credit Facility or any Guarantee thereof by any Restricted Subsidiary; and (xiv)
Liens on property or assets of the Company or any Restricted Subsidiary securing
Indebtedness (1) under purchase money obligation or Capitalized Lease
Obligations permitted under clause (b)(ii) under Section 4.3 of this Indenture
or (2) under Sale/Leaseback Transactions permitted under Section 4.11 of this
Indenture; provided, that (A) the amount of Indebtedness Incurred in any
specific case does not, at the time such Indebtedness is Incurred, exceed the
lesser of the cost or fair market value of the property or asset acquired or
constructed in connection with such purchase money obligation or Capitalized
Lease Obligation or subject to such Sale/Leaseback Transaction, as the case may
be, (B) such Lien will attach to such property or asset upon acquisition of such
property or asset and or upon commencement of such Sale/Leaseback Transaction,
as the case may be, and (C) no property or asset of the Company or any
Restricted Subsidiary (other than the property or asset acquired or contracted
in connection with such purchase money Obligation or Capitalized Lease
Obligation or subject to such Sale/Leaseback Transaction, as the case may be)
are subject to any Lien securing such Indebtedness.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Physical Securities" has the meaning provided in Section 2.1.
"Preferred Stock," as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Private Exchange Debenture" shall have the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" has the meaning provided in Section 2.15.
"Proceeds Purchase Date" has the meaning provided in Section 4.8.
-16-
A "Public Market" exists at any time with respect to the common stock of
the Company if (a) the common stock of the Company is then registered with the
Securities and Exchange Commission pursuant to Section 12(b) or 12(g) of the
Exchange Act and traded either on a national securities exchange or in the
National Association of Securities Dealers Automated Quotation System and (b) at
least 15% of the total issued and outstanding common stock of the Company, as
applicable, has been distributed prior to such time by means of an effective
registration statement under the Securities Act.
"QIB" means any "qualified institutional buyer" (as defined under the
Securities Act).
"Record Date" means the record dates specified in the Securities, whether
or not a Legal Holiday.
"Redemption Date" when used with respect to any Security, means the date
fixed for the redemption of such Security pursuant to this Indenture and the
Securities by a notice delivered pursuant to the terms of Section 3.3 of this
Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances,
replaces, renews, repays or extends (including pursuant to any defeasance or
discharge mechanism) (collectively, "refinances," and "refinanced" shall have a
correlative meaning) any Indebtedness existing on the date of this Indenture or
Incurred in compliance with this Indenture (including Indebtedness of the
Company that refinances Indebtedness of any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary that refinances Indebtedness of
another Restricted Subsidiary) including Indebtedness that refinances
Refinancing Indebtedness; provided, however, that (i) the Refinancing
Indebtedness has a Stated Maturity no earlier than the earlier of (A) the first
anniversary of the Stated Maturity of the Securities and (B) Stated Maturity of
the Indebtedness being refinanced, (ii) the Refinancing Indebtedness has an
Average Life at the time such Refinancing Indebtedness is Incurred that is equal
to or greater than the lesser of (A) the Average Life of the Securities and (B)
the Average Life of the Indebtedness being refinanced and, (iii) the Refinancing
Indebtedness is in an aggregate principal amount (or if issued with original
issue discount, an aggregate issue price) that is equal to (or 101% of, in the
case of a refinancing of the Securities in connection with a Change of Control)
or less than the sum of the aggregate principal amount (or if issued with
original issue discount, the aggregate accreted value) then outstanding of the
Indebtedness being refinanced.
"Registrar" has the meaning provided for in Section 2.3.
"Registration Rights Agreement" means the Exchange and Registration Rights
Agreement, dated November 26, 1997, between the Company and Initial Purchaser.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning set forth in Section 2.1.
-17-
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Period" means 40 days after the later of commencement of the
offering of the Securities and the Issue Date.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Security constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company other an
Unrestricted Subsidiary.
"Rule 144A Global Security" has the meaning set forth in Section 2.1.
"S&P" means Standard and Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc., and its successors.
"Sale/Leaseback Transaction" means an arrangement relating to property now
owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Subsidiary leases it
from such Person.
"Secured Indebtedness" means any Indebtedness of the Company secured by a
Lien.
"Securities" means the Initial Securities, the Additional Securities, if
and when issued, the Additional PIK Securities, if and when issued, the Exchange
Securities and the Additional Exchange Securities, if and when issued, and the
Private Exchange Debentures and the Additional Private Exchange Debentures, if
and when issued, treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the payment of principal of such
security is due and payable,
-18-
including pursuant to any mandatory redemption provision.
"Subordinated Obligation" means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or
junior in right of payment to the Securities pursuant to a written agreement.
"Subsidiary" of any Person means any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of
shares of Capital Stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person, (ii) such Person and one
or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such
Person. Unless otherwise specified herein, each reference to a Subsidiary shall
refer to a Subsidiary of the Company.
"Successor Issuer" has the meaning provided in Section 5.1.
"Temporary Cash Investments" means any of the following: (i) any Investment
in direct obligations of the United States of America or any agency thereof or
obligations Guaranteed by the United States of America or any agency thereof,
(ii) Investments in time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America, any state thereof or any foreign country recognized by
the United States of America having capital surplus and undivided profits
aggregating in excess of $250 million (or the foreign currency equivalent
thereof) and whose long-term debt, or whose parent holding company's long-term
debt, is rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act), (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) Investments in commercial paper, maturing not more than 180
days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United States
of America with a rating at the time as of which any investment therein is made
of "P-1" (or higher) according to Xxxxx'x. or "A-1" (or higher) according to
S&P, (v) Investments in securities with maturities of six months or less from
the date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or "A" by Xxxxx'x and
(vi) Investments in mutual funds whose investment guidelines restrict such
funds' investments to those satisfying the provisions of clauses (i) through (v)
above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx. 77aaa-77bbbb)
as in effect on the date of this Indenture; provided, however, that, in the
event the Trust Indenture Act of 1939 is amended after such date, "TIA" means,
to the extent required by any such amendment, the
-19-
Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the preamble to this Indenture
until a successor replaces it in accordance with the provisions of Article VII
of this Indenture and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Uniforce Acquisition" means the Company's acquisition of Uniforce
Services, Inc., a New York corporation, through a tender offer and a merger of
an indirect wholly-owned subsidiary of the Company with and into Uniforce
Services, Inc.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any Restricted Subsidiary of the Company
that is not a Subsidiary of the Subsidiary to be so designated; provided,
however, that each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of such designation, and does not thereafter create, Incur,
issue, assume, guarantee or otherwise becomes liable with respect to any
Indebtedness other than Non-Recourse Debt and either (A) the Subsidiary to be so
designated has total consolidated assets of $10,000 or less or (B) if such
Subsidiary has consolidated assets greater than $10,000, then such designation
would be permitted under Section 4.4 of this Indenture. The Board of Directors
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary subject
to the limitations contained in Section 4.12 of this Indenture.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"U.S. Legal Tender" means 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.
"U.S. Person" means any "U.S. Person" as defined by Regulation S under the
Securities Act.
"Voting Stock" of a corporation means all classes of Capital Stock of such
corporation then outstanding and normally entitled to vote in the election of
directors.
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"Wholly-Owned Subsidiary" means a Restricted Subsidiary of the Company, at
least 99% of the Capital Stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly-Owned Subsidiary.
SECTION 1.2. Other Definitions.
Term Defined in
Section
-------
"Agent Members"................................................... 2.16
"covenant defeasance option"...................................... 8.1(b)
"Custodian"....................................................... 6.1
"Event of Default"................................................ 6.1
"Excess Proceeds"................................................. 4.8(a)
"Global Securities"............................................... 2.1
"legal defeasance option"......................................... 8.1(b)
"Restricted Payment".............................................. 4.4
"Rule 144A"....................................................... 2.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, and any other
obligor on the securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by the TIA reference to another statute or defined under rules
promulgated by the Commission have the meanings assigned to them by such
definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) references to Article and Section numbers refers to the
corresponding Articles and Sections of this Indenture unless otherwise
specified; and
(7) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating. The Initial Securities (and any Additional
Securities), and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit A hereto. The Exchange Securities (and any
Additional Exchange Securities), and the Trustee's certificate of authentication
thereon shall be substantially in the form of Exhibit B hereto. The Securities
may have notations, legends or endorsements required by law, stock exchange rule
or Depositary rule or usage. The Company and the Trustee shall approve the form
of the Securities and any notation, legend or endorsement on them. Each Security
shall be dated the date of its authentication.
The terms and provisions contained in the forms of the Securities annexed
hereto as Exhibits A and B, 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.
Securities offered and sold in reliance on Rule 144A under the Securities
Act ("Rule 144A") shall be issued initially in the form of one or more permanent
global securities in registered form, in substantially the form set forth in
Exhibit A (the "Rule 144A Global Security"), deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the Rule
144A Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary,
as hereinafter provided. Securities offered and sold in reliance on Regulation S
under the Securities Act shall be issued in the form of one or more permanent
global securities in registered form in substantially the form set forth in
Exhibit A with
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the legend set forth in Exhibit A-2 (the "Regulation S Global Security" and
together with the 144A Global Security, the "Global Securities"). The Regulation
S Global Security, which shall be deposited with the Trustee, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of the
Euroclear System ("Euroclear") or Cedel Bank, S.A. ("Cedel Bank"). The aggregate
principal amount of the Regulation S Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided.
Securities issued in exchange for interests in the Rule 144A Global
Security pursuant to Section 2.17 may be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth
in Exhibit A (the "Physical Securities").
Each of the Global Securities shall represent such amount of the
outstanding Securities as shall be specified therein and each shall provide that
it shall represent the aggregate amount of outstanding Securities from time to
time endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "Management
Resolutions" and "Instructions to Participants" of Cedel Bank shall be
applicable to interests in the Regulation S Global Securities that are held by
the Agent Members through Euroclear or Cedel Bank.
SECTION 2.2. Execution and Authentication. (a) Two Officers of the Company
shall sign, or one Officer shall sign and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
(b) A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture.
(c) The Trustee shall authenticate (i) Initial Securities for original
issue in the aggregate principal amount not to exceed $20,000,000, (ii) Private
Exchange Debentures from time to time for issue only in exchange for a like
principal amount of Initial Securities and (iii) Exchange Securities from time
to time for issue only in exchange for a like principal amount of Initial
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Securities in each case upon receipt of a written order of the Company. Each
such written order shall specify the amount of Securities to be authenticated
and the date on which the Securities are to be authenticated, whether the
Securities are to be Initial Securities, Private Exchange Debentures or Exchange
Securities and whether the Securities are to be issued as Physical Securities or
Global Securities and such other information as the Trustee may reasonably
request.
(d) Subject to the provisions of this Indenture, including, but not limited
to the provisions of Section 4.3(a) hereof, the Company may cause the Trustee to
authenticate (i) additional Securities ("Additional Securities") for original
issue in the aggregate principal amount not to exceed $30,000,000, (ii)
additional Securities issued pursuant to this Indenture as interest on the
Securities (not to exceed $53,300,000 plus the principal amount of any
Securities issued in lieu of cash for Additional Interest due on the Securities
pursuant to the Registration Rights Agreement) (the "Additional PIK Securities")
(iii) Additional Private Exchange Debentures from time to time in exchange for a
like principal amount of Additional Securities and (iv) Additional Exchange
Securities from time to time for issue only in exchange for a like principal
amount of Additional Securities in each case upon receipt of a written order of
the Company. Each such written order shall specify the amount of Securities to
be authenticated and the date on which the Securities are to be authenticated,
whether the Securities are to be Additional Securities, Additional PIK
Securities, Additional Private Exchange Debentures or Additional Exchange
Securities and whether the Securities are to be issued as Physical Securities or
Global Securities and such other information as the Trustee may reasonably
request. The aggregate principal amount of Securities outstanding at any time
under this Indenture may not exceed $50,000,000 (excluding the Additional PIK
Securities).
(e) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
(f) The Securities shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof, except
the Additional PIK Securities.
SECTION 2.3. Registrar and Paying Agent. (a) The Company shall maintain an
office or agency (which shall be located in the Borough of Manhattan in the City
of New York, State of New York) where (i) Securities may be presented for
registration of transfer or for exchange ("Registrar"), (ii) Securities may be
presented for payment ("Paying Agent") and (iii) notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent. The Company may change any Paying Agent, Registrar or co-registrar
without prior notice to any Securityholder. The Company shall notify the
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Trustee and the Trustee shall notify the Securityholders of the name and address
of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company may act as Paying Agent, Registrar or co-registrar. The
Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture, which shall incorporate the provisions of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, or fails to
give the foregoing notice, the Trustee shall act as such, and shall be entitled
to appropriate compensation in accordance with Section 7.7.
(b) The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notices and demands in connection
with the Securities. The Trustee's address for purposes of Section 2.3(a) is 000
Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000.
(c) Any of the Registrar, the Paying Agent or any other agent may resign
upon 30 days' notice to the Company. The office of the Paying Agent and
Registrar for purposes of this Section 2.3 shall initially be at 000 Xxxxxxx
Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 2.4. Paying Agent to Hold Money in Trust. The Company or any other
obligor on the Securities shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
the Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, and interest on the Securities, and
shall notify the Trustee of any Default by the Company or any other obligor on
the Securities in making any such payment. While any such Default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company or any other obligor on the Securities at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company) shall have no further
liability for the money delivered to the Trustee. If the Company or any other
obligor on the Securities acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Securityholders all money held by it
as Paying Agent.
SECTION 2.5. Securityholder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Securityholders and shall otherwise comply with TIA ss.
312(a). If the Trustee is not the Registrar, the Company or any other obligor on
the Securities shall furnish to the Trustee at least five Business Days before
each Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders, including the aggregate
principal amount of the Securities held by each thereof, and the Company or any
other obligor on the Securities shall otherwise comply with TIA ss. 312(a).
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SECTION 2.6. Transfer and Exchange. (a) Subject to Sections 2.16 and 2.17
where Securities are presented to the Registrar or a co-registrar with a request
to register the transfer thereof or exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met;
provided, that any Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar and the Trustee
duly executed by the Securityholder thereof or his attorney duly authorized in
writing. To permit registrations of transfer and exchanges, the Company shall
issue and the Trustee shall authenticate Securities at the Registrar's request.
(b) The Company and the Registrar shall not be required (i) to issue, to
register the transfer of or to exchange Securities during a period beginning at
the opening of business on a Business Day 15 days before the day of any
selection of Securities for redemption pursuant to Article 3 and ending at the
close of business on the day of selection, (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (iii) to register
the transfer or exchange of a Security between the Record Date and the next
succeeding Interest Payment Date.
(c) No service charge shall be made for any registration of a transfer or
exchange (except as otherwise expressly permitted herein), but the Company may
require payment by the Securityholder of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
such transfer tax or similar governmental charge payable upon exchanges pursuant
to Section 2.10, 3.6 or 9.5).
(d) Any Holder of any Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its agent), and that ownership of a beneficial interest
in the Global Security shall be required to be reflected in a book entry.
SECTION 2.7. Replacement Securities. (a) If any mutilated Security is
surrendered to the Trustee, or the Company and the Trustee receives evidence to
their satisfaction of the destruction, loss or theft of any Security, the
Company shall issue and the Trustee, upon receipt by it of the written order of
the Company signed by two Officers of the Company, shall authenticate a
replacement Security if the Trustee's requirements for replacements of
Securities are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the reasonable judgment of
the Trustee and the Company to protect the Company, the Trustee, any Agent or
any authenticating agent from any loss which any of them may suffer if a
Security is replaced. The Company and the Trustee may charge a Securityholder
for reasonable out-of-pocket expenses in replacing a Security, including fees
and expenses of counsel.
(b) Every replacement Security is an additional obligation of the Company
and shall
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be entitled to the benefits of this Indenture.
SECTION 2.8. Outstanding Securities. (a) The Securities outstanding at any
time are all the Securities authenticated by the Trustee except for those
cancelled by the Company or by the Trustee, those delivered to the Trustee for
cancellation and those described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless and until the Trustee receives proof satisfactory to it that
the replaced Security is held by a bona fide purchaser.
(c) If the principal amount of any Security is considered paid under
Section 4.1, it ceases to be outstanding and interest on it ceases to accrue.
(d) Subject to Section 2.9, a Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
(e) If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender sufficient to pay all of the principal, premium, if any, and
interest due on the Securities payable on that date and is not prohibited from
paying such money to the Securityholders thereof pursuant to the terms of this
Indenture, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.9. Treasury Securities. In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company, or any of their respective
Affiliates shall be considered as though not outstanding, except that for
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which a Responsible Officer
knows to be so owned shall be so considered.
SECTION 2.10. Temporary Securities. Until definitive Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company and the Trustee
consider appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of the written order of the
Company signed by two Officers of the Company, or by one Officer and attested by
one Officer or an Assistant Secretary (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions), shall authenticate,
pursuant to Section 2.2, definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges under this Indenture as definitive
Securities.
SECTION 2.11. Cancellation. The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and Paying Agent shall forward to
the Trustee any
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Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities, if not already cancelled,
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall return such cancelled Securities to the Company. Subject
to Section 2.7, the Company may not issue new Securities to replace Securities
that it has redeemed or paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Securityholders on a subsequent special record date,
which date shall be at the earliest practicable date but in all events at least
five Business Days prior to the payment date, in each case at the rate provided
in the Securities and in Section 4.1. The Company shall, with the consent of the
Trustee, fix or cause to be fixed each such special record date and payment
date. At least 15 days before the special record date, the Company (or the
Trustee, in the name of and at the expense of the Company) shall mail to
Securityholders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.13. CUSIP Number. The Company in issuing the Securities may use a
"CUSIP" number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Securityholders; provided, that no
representation shall be deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company shall promptly notify the Trustee of any change in
the CUSIP number.
SECTION 2.14. Deposit of Moneys. Prior to 11:00 a.m. New York City time on
each Interest Payment Date and Maturity Date, the Company shall have deposited
with the Paying Agent in immediately available funds money (or, if prior to June
1, 2003, with respect to the payment of interest only, at the Company's option,
Additional PIK Securities) sufficient to make cash payments, if any, due on such
Interest Payment Date or Maturity Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Securityholders on such
Interest Payment Date or Maturity Date, as the case may be.
SECTION 2.15. Restrictive Legends. Each Global Security and Physical
Security that constitutes a Restricted Security shall bear the following legend
(the "Private Placement Legend") on the face thereof until November 26, 1999
unless otherwise agreed by the Company and the Securityholder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, UNITED STATES
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PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT WITH
RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF SECURITIES AT THE TIME OF TRANSFER OF LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT AN INITIAL
INVESTOR THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR PURCHASING AS
DESCRIBED IN CLAUSE (1)(B) ABOVE SHALL NOT BE PERMITTED TO TRANSFER THIS
SECURITY TO AN INSTITUTIONAL ACCREDITED INVESTOR. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR
PURCHASING PURSUANT TO
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CLAUSE (2)(C) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "UNITED
STATES PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
Each Global Security shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF
THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE, TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRE SENTATIVE OF DTC (AND ANY
PAYMENT HEREON 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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The Regulation S Global Security shall bear the following legend on the
face thereof:
THIS NOTE MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON (AS SUCH TERM IS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD
(AS DEFINED IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF THIS SECURITY
MAY BE MADE FOR AN INTEREST IN A PHYSICAL SECURITY UNTIL AFTER THE LATER OF
THE DATE OF EXPIRATION OF THE RESTRICTED PERIOD AND THE DATE ON WHICH THE
PROPER REQUIRED CERTIFICATION RELATING TO SUCH INTEREST HAS BEEN PROVIDED
IN ACCORDANCE WITH THE TERMS OF THE INDENTURE, TO THE EFFECT THAT THE
BENEFICIAL OWNER OR OWNERS OF SUCH INTEREST ARE NOT U.S. PERSONS.
SECTION 2.16. Book-Entry Provisions for Global Security. (a) Each Global
Security initially shall (i) be registered in the name of the Depositary or the
nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) bear legends as set forth in Section 2.15.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depositary, or the Trustee as its custodian, or under the Global
Security, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers in whole,
but not in part, to the Depositary, its successors or their respective nominees.
Interest of beneficial owners in a Global Security may be transferred or
exchanged for Physical Securities in accordance with the rules and procedures of
the Depositary, the provisions of Section 2.17 and the limitation set forth in
Section 2.1 with regard to the Regulation S Global Security. In addition,
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the Global Security and a successor depository is not appointed by the
Company within 90 days of such notice or (ii) an Event of Default has occurred
and is continuing and the Registrar has received a written request from the
Depositary to issue Physical Securities.
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Securitys to beneficial owners pursuant to
paragraph (b) above, the Registrar shall (if one or more Physical Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and make available for delivery, one or more Physical Securities of like tenor
and amount.
(d) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to paragraph (b) above, a Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
such Global Security, an equal aggregate principal amount of Physical Securities
of authorized denominations.
(e) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in the Global Security pursuant to paragraph (b) or (c)
above shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.17, bear the legend regarding transfer restrictions applicable to the
Physical Securities set forth in Section 2.15.
(f) The Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Securityholder is
entitled to take under this Indenture or the Securities.
SECTION 2.17. Special Transfer Provisions.
(a) Transfers of Global Securities; Transfers to Non-QIB Institutional
Accredited Investors and Non-U.S. Persons. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to any Institutional Accredited Investor
which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after November
26, 1999; provided, however, that neither the Company nor any Affiliate of
the Company has held any beneficial interest in such Security, or portion
thereof, at any time on or prior to November 26, 1999 or (y) (1) in the
case of a transfer to an Institutional Accredited Investor which is not a
QIB (excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit C hereto
or (2) in the case of a transfer to a Non-U.S. Person, the proposed
transferor has delivered to the Registrar a certificate substantially in
the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Rule 144A Global Security, upon receipt by the
Registrar of (x) the certificate, if any,
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required by paragraph (i) above and (y) instructions given in accordance
with the Depositary's and the Registrar's procedures, (a) the Registrar
shall reflect on its books and records the date and (if the transfer does
not involve a transfer of outstanding Physical Securities) a decrease in
the principal amount of the Rule 144A Global Security in an amount equal to
the principal amount of the beneficial interest in the Rule 144A Global
Security to be transferred, and (b)(1) the Company shall execute and the
Trustee shall authenticate and deliver one or more Physical Securities of
like tenor and amount or (2) the Registrar shall reflect on its books and
records the date and (if the transfer does not involve a transfer of
outstanding Physical Securities) an increase in the principal amount of the
Regulation S Global Security in an amount equal to the principal amount of
the beneficial interest in the Rule 144A Global Security to be transferred.
(iii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Regulation S Global Security, upon receipt by
the Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) instructions given in accordance with the Depositary's and
the Registrar's procedures, (a) the Registrar shall reflect on its books
and records the date and (if the transfer does not involve a transfer of
outstanding Physical Securities) a decrease in the principal amount of the
Regulation S Global Security in an amount equal to the principal amount of
the beneficial interest in the Regulation S Global Security to be
transferred, and (b)(1) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount or (2) the Registrar shall reflect on its books and records the date
and (if the transfer does not involve a transfer of outstanding Physical
Securities) an increase in the principal amount of the Rule 144A Global
Security in an amount equal to the principal amount of the beneficial
interest in the Rule 144A Global Security to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with respect to
the registration of any proposed transfer of a Security constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has advised the Company and the
Registrar in writing, that the sale has been effected in compliance with
the provisions of Rule 144A to a transferee who has advised the Company and
the Registrar in writing, that it is purchasing the Security for its own
account or an account with respect to which it exercises sole investment
discretion and that any such account is a QIB within the meaning of Rule
144A, and it is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A; and
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(ii) if the proposed transferee is an Agent Member and the Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the Rule 144A Global Security, upon
receipt by the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall reflect on
its books and records the date and an increase in the principal amount of
the Rule 144A Global Security in an amount equal to principal amount of the
Physical Securities to be transferred, and the Trustee shall cancel the
Physical Securities so transferred.
(c) Transfers to Non-U.S. Persons. The following provisions shall apply
with respect to the registration of any proposed transfer of a Security
constituting a Restricted Security to a Non- U.S. Persons:
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has advised the Company and the
Registrar in writing, that the sale has been effected in compliance with
the provisions of Regulation S to a transferee who has advised the Company
and the Registrar in writing, that it is purchasing the Security in
compliance with Rule 904 under the Securities Act, and it is aware that the
sale to it is being made in reliance on Regulation S and that it is aware
that the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Regulation S; and
(ii) if the proposed transferee is an Agent Member and the Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the Regulation S Global Security, upon
receipt by the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall reflect on
its books and records the date and an increase in the principal amount of
the Regulation S Global Security in an amount equal to principal amount of
the Physical Securities to be transferred, and the Trustee shall cancel the
Physical Securities so transferred.
(d) Private Placement Legend. Upon the registration of the transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 2.17 exists or
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(e) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth
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in this Indenture and in the Private Placement Legend and agrees that it will
transfer such Security only as provided in this Indenture.
The Registrar shall retain for at least two years copies of all letters,
notices and other written communications received pursuant to Section 2.16 or
this Section 2.17. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
SECTION 2.18. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer and subject to Section 2.12, the Company, the
Trustee, any Paying Agent, any Registrar and any co-registrar may deem and treat
the Person in whose name any Security shall be registered upon the register of
Securities kept by the Registrar as the absolute owner of such Security (whether
or not such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company, any
Registrar or any co-registrar) for the purpose of receiving payments of
principal of or interest on such Security and for all other purposes; and none
of the Company, the Trustee, any Paying Agent, any Registrar or any co-registrar
shall be affected by any notice to the contrary.
SECTION 2.19. Record Date. The record date for purposes of determining the
identity of Securityholders entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be the later of (i)
30 days prior to the first solicitation of such consent or (ii) the date of the
most recent list of Holders furnished to the Trustee, if applicable, pursuant to
Section 2.5.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee. If the Company elects to redeem Securities
pursuant to paragraph 5 of the Securities, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Securities to be
redeemed.
The Company shall give each notice to the Trustee provided for in this
Section at least 30 days but no more than 60 days before the Redemption Date
unless the Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers' Certificate from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.2. Selection of Securities To Be Redeemed. In the case of any
partial redemption of the Securities, selection of the Securities for redemption
will be made by the Trustee on a pro rata basis, by lot or by such other method
as the Trustee in its sole discretion shall deem to be fair and appropriate;
provided, however, that if a partial redemption is made with proceeds of an
Equity Offering, selection of the Securities or portion thereof for redemption
shall be made by the Trustee only on a pro rata basis, unless such method is
otherwise prohibited. Securities may be
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redeemed in part in multiples of $1,000 principal amount only. Notice of
redemption will be sent, by first class mail, postage prepaid, at least 45 days
(unless a shorter period is acceptable to the Trustee) prior to the date fixed
for redemption to each holder whose Securities are to be redeemed at the last
address for such holder then shown on the registry books. If any Security is to
be redeemed in part only, the notice of redemption that relates to such Security
shall state the portion of the principal amount thereof to be redeemed. A new
Security in principal amount equal to the unredeemed portion thereof will be
issued in the name of the holder thereof upon cancellation of the original
Security. On and after any redemption date, interest will cease to accrue on the
Securities or part thereof called for redemption as long as the Company has
deposited with the Paying Agent funds in satisfaction of the redemption price
pursuant to the Indenture. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company in writing promptly of the
Securities or portions of Securities to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than 60
days before a date for redemption of Securities, the Company shall mail a notice
of redemption by first-class mail to each Holder of Securities to be redeemed,
at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(5) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the Redemption Date;
(7) the CUSIP number, if any, printed on the Securities being
redeemed;
(8) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date upon surrender of such Security,
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a new Security or Securities in principal amount equal to the unredeemed
portion shall be issued; and
(9) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed.
At the Company's request made in writing to the Trustee at least 45 days
(unless a shorter period is acceptable to the Trustee) prior to the date fixed
for redemption, the Trustee shall give the notice of redemption in the name and
the expense of the Company to each Holder whose Securities are to be redeemed at
the last address for such Holder then shown on the registry books. In such
event, the Company shall provide the Trustee with the information required by
this Section.
SECTION 3.4. Effect of Notice of Redemption. Once notice of redemption is
mailed, Securities called for redemption become due and payable on the
designated Redemption Date and at the redemption price stated in the notice.
Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price stated in the notice, plus accrued interest to the designated
Redemption Date; provided, that if any Redemption Date is after a regular Record
Date and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Securityholder of the redeemed Securities registered on the
relevant Record Date. Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. (a) Prior to 11:00 a.m., New York
City time, on any Redemption Date, the Company shall deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on such Redemption Date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Securities to be redeemed.
(b) Except as set forth in the last sentence of this paragraph, on and
after any Redemption Date, interest ceases to accrue on the Securities or the
portions of Securities called for redemption. If a Security is redeemed on or
after an interest Record Date but on or prior to the related Interest Payment
Date, then any accrued and unpaid interest shall be paid to the Person in whose
name such Security was registered at the close of business on such Record Date.
If any Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the Redemption
Date until such principal is paid and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate provided in the
Securities and in Section 4.1.
SECTION 3.6. Securities Redeemed in Part. Upon surrender of a Security that
is
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redeemed in part, the Company shall execute and the Trustee shall authenticate
for and in the name of the Holder (at the Company's expense), a new Security
equal in a principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities. The Company shall promptly pay the
principal of, premium, if any, and interest on the Securities on the dates and
in the manner provided in the Securities and in this Indenture. Principal,
premium, if any, and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture. Interest will be computed on the basis of a 360 day year comprised of
twelve 30 day months.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate specified
therefor in the Securities, and it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
Through and including December 1, 2002, on each Interest Payment Date, the
Company may, at its option and in its sole discretion, in lieu of the payment in
whole or in part of interest in money on the Securities, pay interest on the
Securities through the issuance of Additional PIK Securities in an aggregate
principal amount equal to the amount of interest that would be payable with
respect to the Securities, if such interest were paid in cash. After December 1,
2002, the Company shall pay interest on the Securities in cash. The Company
shall notify the Trustee in writing of its election to pay interest through the
issuance of Additional PIK Securities not less than 10 nor more than 45 days
prior to the record date for an Interest Payment Date on which Additional PIK
Securities will be issued. On each such Interest Payment Date, the Trustee shall
authenticate Additional PIK Securities for original issuance to each Holder on
the relevant record date in the aggregate principal amount required to pay such
interest. Each Additional PIK Security is an additional obligation of the
Company and shall be governed by, and entitled to the benefits of, this
Indenture and shall be subject to the terms of the this Indenture and shall be
pari passu with and subject to the same terms (including the rate of interest
from time to time payable thereon) as the Securities (except, as the case may
be, with respect to the issuance date and aggregate principal amount).
From and after December 1, 2002, interest on the Securities will be payable
only in cash. To the extent that the Company is prohibited pursuant to the terms
of the New Credit Facility
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or the Notes from paying interest in cash subsequent to December 1, 2002, the
Company will pay interest equal to the interest rate then applicable to the
Securities plus 2.00%.
SECTION 4.2. Reports. (a) The Company will file with the Trustee and
provide to the Holders of the Securities, within 15 days after it files them
with the Commission, copies of the quarterly and annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
the Company files with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.
(b) In the event that the Company is not required to file such reports with
the Commission pursuant to the Exchange Act, the Company will nevertheless
deliver such Exchange Act information to the holders of the Securities within 15
days after it would have been required to file it with the Commission. Upon
qualification of this Indenture under the TIA, the Company shall also comply
with the other provisions of TIA ss. 314(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.3. Limitation on Indebtedness. (a) The Company shall not, and
shall not permit any of its Restricted Subsidiaries to Incur any Indebtedness;
provided, however, that: the Company may Incur Indebtedness, if no Default or
Event of Default shall have occurred and be continuing at the time of such
Incurrence or would occur as a consequence of such Incurrence and the
Consolidated Coverage Ratio would be equal to at least 1.20 to 1.00 after giving
pro forma effect to the Incurrence of such Indebtedness.
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to the New Credit Facility
(including, without limitation, any renewal, extension, refunding,
restructuring, replacement or refinancing thereof referred to in the
definition thereof) provided, however, that the aggregate principal amount
of all Indebtedness Incurred pursuant to this clause (i) does not exceed
$75.0 million at any time outstanding, less the aggregate principal amount
thereof repaid with the net proceeds of Asset Dispositions;
(ii) Indebtedness represented by Capitalized Lease Obligations,
mortgage financing or purchase money obligations, in each case Incurred for
the purpose of financing all or any part of the purchase price or cost of
construction or improvement of property used in a Permitted Business or
Incurred to refinance any such purchase price or cost of construction or
improvement, in each case Incurred no later than 365 days after the date of
such
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acquisition or the date of completion of such construction or improvement;
provided, however, that the principal amount of any Indebtedness Incurred
pursuant to this clause (ii) shall not exceed $5.0 million at any time
outstanding;
(iii) Indebtedness of the Company owing to and held by any
Wholly-Owned Subsidiary or Indebtedness of a Restricted Subsidiary owing to
and held by the Company or any Wholly-Owned Subsidiary; provided, however,
that any subsequent issuance or transfer of any Capital Stock or any other
event which results in any such Wholly-Owned Subsidiary ceasing to be a
Wholly-Owned Subsidiary or any subsequent transfer of any such Indebtedness
(except to the Company or any Wholly-Owned Subsidiary) shall be deemed, in
each case, to constitute the Incurrence of such Indebtedness by the issuer
thereof;
(iv) Indebtedness represented by (a) the Securities (b) Existing
Indebtedness and (c) any Refinancing Indebtedness Incurred in respect of
any Indebtedness described in this clause (iv) or Incurred pursuant to
paragraph (a) of this Section 4.3;
(v)(A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on the date on which such Restricted Subsidiary was acquired by
the Company (other than Indebtedness Incurred in anticipation of, or to
provide all or any portion of the funds or credit support utilized to
consummate the transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Subsidiary or was otherwise
acquired by the Company); provided, however, that at the time such
Restricted Subsidiary is acquired by the Company, the Company would have
been able to Incur $1.00 of additional Indebtedness pursuant to paragraph
(a) of this Section 4.3 after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (v) and (B) Refinancing Indebtedness
Incurred by a Restricted Subsidiary in respect of Indebtedness Incurred by
such Restricted Subsidiary pursuant to this clause (v);
(vi) Indebtedness (A) in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Company or any of
its Restricted Subsidiaries to their customers in the ordinary course of
their business, (B) in respect of performance bonds or similar obligations
of the Company or any of its Restricted Subsidiaries for or in connection
with pledges, deposits or payments made or given in the ordinary course of
business in connection with or to secure statutory, regulatory or similar
obligations, including obligations under health, safety or environmental
obligations and (C) arising from Guarantees to suppliers, lessors,
licensees, contractors, franchises or customers of obligations (other than
Indebtedness) incurred in the ordinary course of business;
(vii) Indebtedness under Currency Agreements and Interest Rate
Agreements; provided, however, that in the case of Currency Agreements and
Interest Rate Agreements, such Currency Agreements and Interest Rate
Agreements are entered into for bona fide hedging purposes of the Company
or its Restricted Subsidiaries (as determined in good faith
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by the Board of Directors of the Company) and correspond in terms of
notional amount, duration, currencies and interest rates as applicable, to
Indebtedness of the Company or its Restricted Subsidiaries Incurred without
violation of this Indenture or to business transactions of the Company or
its Restricted Subsidiaries on customary terms entered into in the ordinary
course of business;
(viii) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or
from Guarantees or letters of credits, surety bonds or performance bonds
securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in each case Incurred in
connection with the disposition of any business assets or Restricted
Subsidiary of the Company (other than Guarantees of Indebtedness or other
obligations incurred by any Person acquiring all or any portion of such
business assets or Restricted Subsidiary of the Company for the purpose of
financing such acquisition) in a principal amount not to exceed the gross
proceeds actually received by the Company or any of its Restricted
Subsidiaries in connection with such disposition; provided, however, that
the principal amount of any Indebtedness incurred pursuant to this clause
(viii) when taken together with all Indebtedness incurred pursuant to this
clause (viii) and then outstanding, shall not exceed $2.0 million;
(ix) Indebtedness consisting of (A) Guarantees by the Company (so long
as the Company could have incurred such Indebtedness directly without
violation of this Indenture) and (B) Guarantees by a Restricted Subsidiary
of Indebtedness incurred by the Company without violation of this Indenture
(so long as such Restricted Subsidiary could have incurred such
Indebtedness directly without violation of this Indenture);
(x) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument issued by the
Company or its Subsidiaries drawn against insufficient funds in the
ordinary course of business in an amount not to exceed $250,000 at any
time, provided that such Indebtedness is extinguished within two business
days of its incurrence; and
(xi) Indebtedness (other than Indebtedness described in clauses (i) -
(x)) in a principal amount which, when taken together with the principal
amount of all other Indebtedness Incurred pursuant to this clause (xi) and
then outstanding, will not exceed $10.0 million (it being understood that
any Indebtedness Incurred under this clause (xi) shall cease to be deemed
Incurred or outstanding for purposes of this clause (xi) (but shall be
deemed to be Incurred for purposes of paragraph (a) of this Section 4.3)
from and after the first date on which the Company or its Restricted
Subsidiaries could have Incurred such Indebtedness under the foregoing
paragraph (a) of this Section 4.3 without reliance upon this clause (xi)).
(c) The Company will not permit any Unrestricted Subsidiary to Incur any
Indebtedness other than Non-Recourse Debt.
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SECTION 4.4. Limitation on Restricted Payments. (a) The Company shall not,
and shall not permit any of its Restricted Subsidiaries, directly or indirectly,
to (i) declare or pay any dividend or make any distribution on or in respect of
its Capital Stock (including any payment in connection with any merger or
consolidation involving the Company or any of its Restricted Subsidiaries)
except (A) dividends or distributions payable in its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to purchase such
Capital Stock, (B) dividends or distributions payable to the Company or a
Restricted Subsidiary of the Company which holds any equity interest in the
paying Restricted Subsidiary (and if the Restricted Subsidiary paying the
dividend or making the distribution is not a Wholly-Owned Subsidiary, to its
other holders of Capital Stock on a pro rata basis) and (C) cash dividends in
respect of the preferred stock of the Company that was issued and outstanding on
or prior to the date of this Indenture, (ii) purchase, redeem, retire or
otherwise acquire for value any Capital Stock of the Company held by Persons
other than a Wholly-Owned Subsidiary of the Company or any Capital Stock of a
Restricted Subsidiary of the Company held by any Affiliate of the Company, other
than a Wholly-Owned Subsidiary (in either case, other than in exchange for its
Capital Stock (other than Disqualified Stock)), (iii) purchase, repurchase,
redeem, defease or otherwise acquire or retire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment, any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of purchase, repurchase or acquisition) or (iv)
make any Investment (other than a Permitted Investment) in any Person (any such
dividend, distribution, purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Investment as described in preceding clauses (i)
through (iv) being referred to as a "Restricted Payment"); if at the time the
Company or such Restricted Subsidiary makes such Restricted Payment: (1) a
Default shall have occurred and be continuing (or would result therefrom); or
(2) the Company is not able to incur an additional $1.00 of Indebtedness
pursuant to Section 4.3(a) of this Indenture; or (3) the aggregate amount of
such Restricted Payment and all other Restricted Payments declared or made
subsequent to the Issue Date would exceed the sum of (A) 50% of the Consolidated
Net Income accrued during the period (treated as one accounting period) from the
first day of the fiscal quarter beginning on or after the Issue Date to the end
of the most recent fiscal quarter ending prior to the date of such Restricted
Payment as to which financial results are available (but in no event ending more
than 135 days prior to the date of such Restricted Payment) (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such deficit); (B) the
aggregate net proceeds received by the Company from the issue or sale of its
Capital Stock (other than Disqualified Stock) or other capital contributions
subsequent to the Issue Date (other than net proceeds received from an issuance
or sale of such Capital Stock to (x) a Subsidiary of the Company, (y) an
employee stock ownership plan or similar trust or (z) management employees of
the Company or any Subsidiary of the Company or any Subsidiary of the Company
(other than sales of Capital Stock (other than Disqualified Stock) to management
employees of the Company pursuant to bona fide employee stock option plans of
the Company); provided, however, that the value of any non-cash net proceeds
shall be as determined by the Board of Directors in good faith, except that in
the event the value of any non-cash net proceeds shall be $2.0 million or more,
the value shall be as
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determined in writing by an independent investment banking firm of nationally
recognized standing; (C) the amount by which Indebtedness of the Company is
reduced on the Company's balance sheet upon the conversion or exchange (other
than by a Restricted Subsidiary of the Company) subsequent to the Issue Date of
any Indebtedness of the Company convertible or exchangeable for Capital Stock
(other than Disqualified Stock) of the Company (less the amount of any cash, or
other property, distributed by the Company upon such conversion or exchange);
and (D) the amount equal to the net reduction in Investments (other than
Permitted Investments) made after the Issue Date by the Company or any of its
Restricted Subsidiaries in any Person resulting from (i) repurchases or
redemptions of such Investments by such Person, proceeds realized upon the sale
of such Investment to an unaffiliated purchaser, repayments of loans or advances
or other transfers of assets by such Person to the Company or any Restricted
Subsidiary of the Company or (ii) the redesignation of Unrestricted Subsidiaries
as Restricted Subsidiaries (valued in each case as provided in the definition of
"Investment") not to exceed, in the case of any Unrestricted Subsidiary, the
amount of Investments previously included in the calculation of the amount of
Restricted Payments; provided, however, that no amount shall be included under
this Clause (D) to the extent it is already included in Consolidated Net Income.
(b) The provisions of paragraph (a) shall not prohibit: (i) any purchase or
redemption of Capital Stock or Subordinated Obligations of the Company made by
exchange for, or out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified Stock and other than
Capital Stock issued or sold to a Subsidiary, an employee stock ownership plan
or similar trust or management employees of the Company or any Subsidiary of the
Company); provided, however, that (A) such purchase or redemption shall be
excluded in the calculation of the amount of Restricted Payments and (B) the Net
Cash Proceeds from such sale shall be excluded from clause (3) (B) of paragraph
(a); (ii) any purchase or redemption of Subordinated Obligations of the Company
made by exchange for, or out of the proceeds of the substantially concurrent
sale of, Subordinated Obligations of the Company in compliance with the Section
4.3 herein; provided, however, that such purchase or redemption shall be
excluded in the calculation of the amount of Restricted Payments; (iii) any
purchase or redemption of Subordinated Obligations from Net Available Cash to
the extent permitted under Section 4.8 herein; provided, however, that such
purchase or redemption shall be excluded in the calculation of the amount of
Restricted Payments; and (iv) dividends paid within 60 days after the date of
declaration if at such date of declaration such dividend would have complied
with this provision; provided, however, that such dividend shall be included in
the calculation of the amount of Restricted Payments; provided, however, that in
the case of clauses (i), (ii) and (iii) no Default or Event of Default shall
have occurred or be continuing at the time of such payment or as a result
thereof.
(c) For purposes of determining compliance with the foregoing covenant,
Restricted Payments may be made with cash or non-cash assets, provided that any
Restricted Payment made other than in cash shall be valued at the fair market
value (determined, subject to the additional requirements of the immediately
succeeding proviso, in good faith by the Board of Directors) of the assets so
utilized in making such Restricted Payment, provided, further that (i) in the
case of any
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Restricted Payment made with Capital Stock or Indebtedness, such Restricted
Payment shall be deemed to be made in an amount equal to the greater of the fair
market value thereof and the liquidation preference (if any) or principal amount
of the capital stock or indebtedness, as the case may be, so utilized, and (ii)
in the case of any Restricted Payment in an aggregate amount in excess of $2.0
million, a written opinion as to the fairness of the valuation thereof (as
determined by the Company) for purposes of determining compliance with this
Section 4.4 shall be issued by an independent investment banking firm of
national standing.
(d) Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officer's Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available quarterly
financial statements and a copy of any required investment banker's opinion.
SECTION 4.5. Limitation on Issuances of Capital Stock of Restricted
Subsidiaries. The Company will not permit any of its Restricted Subsidiaries to
issue any Capital Stock to any Person (other than to the Company or a
Wholly-Owned Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly-Owned Subsidiary of the Company) to own any Capital Stock of
a Restricted Subsidiary of the Company, if in either case as a result thereof
such Restricted Subsidiary would no longer be a Restricted Subsidiary of the
Company; provided, however, that this provision shall not prohibit (x) the
Company or any of its Restricted Subsidiaries from selling, leasing or otherwise
disposing of all of the Capital Stock of any Restricted Subsidiary or (y) the
designation of a Restricted Subsidiary as an Unrestricted Subsidiary in
compliance with this Indenture.
SECTION 4.6. Limitation on Affiliate Transactions. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into or conduct any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with or for the benefit of any Affiliate of the
Company, other than a Wholly-Owned Subsidiary (an "Affiliate Transaction")
unless: (i) the terms of such Affiliate Transaction are no less favorable to the
Company or such Restricted Subsidiary, as the case may be, than those that could
be obtained at the time of such transaction in arm's length dealings with a
Person who is not such an Affiliate; (ii) in the event such Affiliate
Transaction involves an aggregate amount in excess of $500,000, the terms of
such transaction have been approved by a majority of the members of the Board of
Directors of the Company and by a majority of the disinterested members of such
Board, if any (and such majority or majorities, as the case may be, determines
that such Affiliate Transaction satisfies the criteria in (i) above); and (iii)
in the event such Affiliate Transaction involves an aggregate amount in excess
of $1.0 million, the Company has received a written opinion from an independent
investment banking firm of nationally recognized standing that such Affiliate
Transaction is fair to the Company or such Restricted Subsidiary, as the case
may be, from a financial point of view.
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(b) The foregoing paragraph (a) shall not apply to (i) any Restricted
Payment permitted to be made pursuant to the covenant described under Section
4.4, (ii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, or any stock options and stock ownership plans for the benefit of
employees, officers and directors, consultants and advisors approved by the
Board of Directors of the Company, (iii) loans or advances to employees in the
ordinary course of business of the Company or any of its Restricted Subsidiaries
in aggregate amount outstanding not to exceed $250,000 to any employee or $1.0
million in the aggregate at any time, (iv) any transaction between Wholly-Owned
Subsidiaries, (v) indemnification agreements with, and the payment of fees and
indemnities to, directors, officers and employees of the Company and its
Restricted Subsidiaries, in each case in the ordinary course of business, (vi)
transactions pursuant to agreements in existence on the Issue Date which are (x)
described in the Offering Memorandum or (y) otherwise, in the aggregate,
immaterial to the Company and its Restricted Subsidiaries taken as a whole,
(vii) any employment, non-competition or confidentiality agreements entered into
by the Company or any of its Restricted Subsidiaries with its employees in the
ordinary course of business, (viii) the issuance of Capital Stock of the Company
(other than Disqualified Stock).
SECTION 4.7. Limitation on Liens. The Company will not and will not permit
any Restricted Subsidiary to, directly or indirectly, create or permit to exist
any Liens except for Permitted Liens.
SECTION 4.8. Limitation on Sales of Assets and Subsidiary Stock. (a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
make any Asset Disposition unless:
(i) the Company or such Restricted Subsidiary receives consideration
at the time of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Company's Board of Directors
(including as to the value of all non-cash consideration), of the shares
and assets subject to such Asset Disposition;
(ii) at least 80% of the consideration thereof received by the Company
or such Restricted Subsidiary is in the form of cash or Cash Equivalents;
and
(iii) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Restricted Subsidiary,
as the case may be) (A) first, to the extent the Company or any Restricted
Subsidiary elects (or is required by the terms of any senior secured
indebtedness), (x) to prepay, repay or purchase senior secured Indebtedness
or Notes or (y) to the investment in or acquisition of Additional Assets
within 270 days from the later of the date of such Asset Disposition or the
receipt of such Net Available Cash; (B) second, within 270 days from the
receipt of such Net Available Cash, to the extent of the balance of such
Net Available Cash after application in accordance with clause (A), to make
an offer to purchase Securities at 100% of their principal amount plus
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accrued and unpaid interest, if any, thereon; (C) third, within 90 days
after the later of the application of Net Available Cash in accordance with
clauses (A) and (B) and the date that is 270 days from the receipt of such
Net Available Cash, to the extent of the balance of such Net Available Cash
after application in accordance with clauses (A) and (B), to prepay, repay
or repurchase Indebtedness (other than Preferred Stock) of a Wholly-Owned
Subsidiary (in each case other than Indebtedness owed to the Company); and
(D) fourth, to the extent of the balance of such Net Available Cash after
application in accordance with clauses (A), (B) and (C), to (w) the
investment in or acquisition of Additional Assets, (x) the making of
Temporary Cash Investments, (y) the prepayment, repayment or purchase of
Indebtedness of the Company (other than Indebtedness owing to any
Subsidiary of the Company) or Indebtedness of any Subsidiary (other than
Indebtedness owed to the Company or any of its Subsidiaries) or (z) any
other purpose otherwise permitted under this Indenture, in each case within
the later of 45 days after the application of Net Available Cash in
accordance with clauses (A), (B) and (C) or the date that is 360 days from
the receipt of such Net Available Cash; provided, however, that, in
connection with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (A), (B), (C) or (D) above, the Company or such
Restricted Subsidiary shall retire such Indebtedness and shall cause the
related loan commitment (if any) to be permanently reduced in an amount
equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions, the Company and its Restricted
Subsidiaries shall not be required to apply any Net Available Cash in
accordance herewith except to the extent that the aggregate Net Available
Cash from all Asset Dispositions which are not applied in accordance with
this covenant at any time exceeds $10.0 million. The Company shall not be
required to make an offer for Securities pursuant to this covenant if the
Net Available Cash available therefor (after application of the proceeds as
provided in clause (A)) is less than $10.0 million for any particular Asset
Disposition (which lesser amounts shall be carried forward for purposes of
determining whether an offer is required with respect to the Net Available
Cash form any subsequent Asset Disposition).
For the purposes of this covenant, the following will be deemed to be cash: (x)
the assumption by the transferee of senior indebtedness of the Company or senior
indebtedness of any Restricted Subsidiary of the Company and the release of the
Company or such Restricted Subsidiary from all liability on such senior
indebtedness in connection with such Asset Disposition (in each case the Company
shall, without further action, be deemed to have applied such assumed
Indebtedness in accordance with clause (A) of the preceding paragraph) and (y)
securities received by the Company or any Restricted Subsidiary of the Company
from the transferee that are promptly (and in any event within 60 days)
converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of
Securities pursuant to clause (a)(iii)(B) of this Section 4.8, the Company will
be required to purchase Securities tendered pursuant to an offer by the Company
for the Securities at a purchase price of 100% of their principal amount plus
accrued and unpaid interest, if any, to the purchase date in accordance with
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the procedures (including prorating in the event of oversubscription) set forth
in this Indenture. If the aggregate purchase price of the Securities tendered
pursuant to the offer is less than the Net Available Cash allotted to the
purchase of the Securities, the Company will apply the remaining Net Available
Cash in accordance with clauses (a) (iii)(C) or (D) of this Section 4.8 as
permitted under this Indenture.
(c) If the Company becomes obligated to make an Offer pursuant to this
Section 4.8, the Securities shall be purchased by the Company, at the option of
the holder thereof, in whole or in part in integral multiples of $1,000, on a
date that is not earlier than 30 days and not later than 60 days from the date
the notice is given to holders, or such later date as may be necessary for the
Company to comply with the requirements under the Exchange Act, subject to
proration in the event the amount Net Available Cash is less than the aggregate
Offered Price of all Securities tendered.
(d) Any notice pursuant to this Section 4.8 shall contain all instructions
and materials necessary to enable such Securityholders to tender Securities
pursuant to the offer required to be made pursuant to this Section 4.8 and shall
state the following terms:
(1) that the offer is being made pursuant to this Section 4.8 and that
all Securities tendered will be accepted for payment; provided, however,
that if the aggregate principal amount of Securities tendered in an offer
exceeds the aggregate amount of the offer, the Company shall select the
Securities to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company so that only Securities in
denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and
the purchase date (which shall be 30 days from the date of mailing of
notice of such offer, or such longer period as required by law) (the
"Proceeds Purchase Date");
(3) that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the offer shall cease to accrue
interest after the Proceeds Purchase Date;
(5) that Securityholders electing to have a Security purchased
pursuant to such offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day prior to
the Proceeds Purchase Date;
(6) that Securityholders will be entitled to withdraw their election
if the Paying Agent receives, not later than five Business Days prior to
the Proceeds Purchase Date, a
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telegram, telex, facsimile transmission or letter setting forth the name of
the Securityholder, the principal amount of the Securities the
Securityholder delivered for purchase and a statement that such
Securityholder is withdrawing his election to have such Security purchased;
and
(7) that Securityholders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered; provided that each
Security purchased and each new Security issued shall be in an original
principal amount of $1,000 or integral multiples thereof;
On or before the Proceeds Purchase Date, the Company shall (i) accept for
payment Securities or portions thereof tendered pursuant to the offer which are
to be purchased in accordance with item (f)(1) above, (ii) deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued
interest, if any, of all Securities to be purchased and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Securityholders of Securities so accepted
payment in an amount equal to the purchase price plus accrued interest, if any.
For purposes of this Section 4.8, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of the Securities pursuant to an
offer pursuant to this Section 4.8 shall be returned by the Trustee to the
Company.
(e) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this Indenture by virtue thereof.
SECTION 4.9. Change of Control. (a) Upon the occurrence of a Change of
Control each Securityholder will have the right to require the Company to
repurchase all or any part of such Securityholder's Securities at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of repurchase (subject to the right of
Securityholders of record on the relevant Record Date to receive interest due on
the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, unless the Company has
mailed a redemption notice with respect to all the outstanding Securities in
connection with such Change of Control, the Company shall mail a notice to each
Securityholder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that such Securityholder
has the right to require the Company to purchase such Securityholder's
Securities at a purchase price
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in cash equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase (subject to the right of
Securityholders of record on a record date to receive interest on the
relevant Interest Payment Date);
(ii) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(iii) the procedures determined by the Company, consistent with the
Indenture, that a Securityholder must follow in order to have its
Securities repurchased.
(c) Securityholders electing to have a Security repurchased will be
required to surrender the Security, with the form entitled "Option of
Securityholder to Elect Purchase" on the reverse of the Security completed, to
the Company at the address specified in the notice at least 10 Business Days
prior to the repurchase date. Securityholders will be entitled to withdraw their
election if the Trustee or the Company receives not later than three Business
Days prior to the repurchase date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Securityholder, the principal amount of the
Security which was delivered for repurchase by the Securityholder and a
statement that such Securityholder is withdrawing his election to have such
Security purchased.
(d) On the repurchase date, all Securities repurchased by the Company under
this Section 4.9 shall be delivered by the Trustee for cancellation, and the
Company shall pay the repurchase price plus accrued and unpaid interest, if any,
to the Securityholders entitled thereto.
(e) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
covenant. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Indenture relative to the
Company's obligation to make an offer to repurchase the Securities as a result
of a Change of Control, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under such provisions of the Indenture by virtue thereof.
SECTION 4.10. Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any such Restricted Subsidiary to
(i) pay dividends or make any other distributions on its Capital Stock or pay
any Indebtedness or other obligation owed to the Company, (ii) make any loans or
advances to the Company or (iii) transfer any of its property or assets to the
Company, except: (a) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date, including the New Credit Facility
and the indenture between COMFORCE Operating, Inc. and Wilmington Trust Company,
as trustee, dated as of November 26, 1997 (the "Notes Indenture"); (b) any
encumbrance or restriction with respect to such a Restricted Subsidiary pursuant
to an agreement
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relating to any Indebtedness issued by such Restricted Subsidiary on or prior to
the date on which such Restricted Subsidiary was acquired by the Company and
outstanding on such date (other than Indebtedness Incurred in anticipation of,
or to provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to which
such Restricted Subsidiary became a Restricted Subsidiary of the Company or was
acquired by the Company); (c) any encumbrance or restriction with respect to
such a Restricted Subsidiary pursuant to an agreement evidencing Indebtedness
Incurred without violation of this Indenture or effecting a refinancing of
Indebtedness issued pursuant to an agreement referred to in clauses (a) or (b)
or this clause (c) or contained in any amendment to an agreement referred to in
clauses (a) or (b) or this clause (c); provided, however, that the encumbrances
and restrictions with respect to such Restricted Subsidiary contained in any of
such agreement, refinancing agreement or amendment, taken as a whole, are no
less favorable to the holders of the Securities in any material respect, as
determined in good faith by the Board of Directors of the Company, than
encumbrances and restrictions with respect to such Restricted Subsidiary
contained in agreements in effect at, or entered into on, the Issue Date; (d) in
the case of clause (iii), any encumbrance or restriction (A) that restricts in a
customary manner the subletting, assignment or transfer of any property or asset
that is a lease, license, conveyance or contract or similar property or asset,
(B) by virtue of any transfer of, agreement to transfer, option or right with
respect to, or Lien on, any property or assets of the Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture, (C) that is included in a
licensing agreement to the extent such restrictions limit the transfer of the
property subject to such licensing agreement or (D) arising or agreed to in the
ordinary course of business and that does not, individually or in the aggregate,
detract from the value of property or assets of the Company or any of its
Subsidiaries in any manner material to the Company or any such Restricted
Subsidiary; (e) in the case of clause (iii) above, restrictions contained in
security agreements, mortgages or similar documents securing Indebtedness of a
Restricted Subsidiary to the extent such restrictions restrict the transfer of
the property subject to such security agreements; (f) in the case of clause
(iii) above, any instrument governing or evidencing Indebtedness of a Person
acquired by the Company or any Restricted Subsidiary of the Company at the time
of such acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person so
acquired; provided, however, that such Indebtedness is not incurred in
connection with or in contemplation of such acquisition; (g) any restriction
with respect to such a Restricted Subsidiary imposed pursuant to an agreement
entered into for the sale or disposition of all or substantially all the Capital
Stock or assets of such Restricted Subsidiary pending the closing of such sale
or disposition; and (h) encumbrances or restrictions arising or existing by
reason of applicable law.
SECTION 4.11. Limitation on Sale/Leaseback Transactions. The Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
enter into, Guarantee or otherwise become liable with respect to any
Sale/Leaseback Transaction with respect to any property or assets unless (i) the
Company or such Restricted Subsidiary, as the case may be, would be entitled,
pursuant to this Indenture, to Incur Indebtedness secured by a Permitted Lien on
such property or assets in an amount equal to the Attributable Indebtedness with
respect to such
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Sale/Leaseback Transaction, (ii) the Net Cash Proceeds from such Sale/Leaseback
Transaction are at least equal to the fair market value of the property or
assets subject to such Sale/Leaseback Transaction (such fair market value
determined, in the event such property or assets have a fair market value in
excess of $1.0 million, no more than 30 days prior to the effective date of such
Sale/Leaseback Transaction, by the Board of Directors of the Company as
evidenced by a resolution of such Board) and (iii) the net cash proceeds of such
Sale/Leaseback Transaction are applied in accordance with the provisions
described under Section 4.11.
SECTION 4.12. Limitation on Designations of Unrestricted Subsidiaries. The
Company may designate any Subsidiary of the Company (other than a Subsidiary of
the Company which owns Capital Stock of a Restricted Subsidiary) as an
"Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
(a) no Default shall have occurred and be continuing at the time of or
after giving effect to such Designation; and
(b) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of such
Designation) in an amount (the "Designation Amount") equal to the sum of
(i) fair market value of the Capital Stock of such Subsidiary owned by the
Company and the Restricted Subsidiaries on such date and (ii) the aggregate
amount of other Investments of the Company and the Restricted Subsidiaries
in such Subsidiary on such date; and
(c) the Company would be permitted to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to the covenant
described under Section 4.3 of this Indenture at the time of Designation
(assuming the effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed to have
made an Investment constituting a Restricted Payment pursuant to the covenant
described under Section 4.4 of this Indenture for all purposes of this Indenture
in the Designation Amount. The Company shall not, and shall not permit any
Restricted Subsidiary to, at any time (x) provide direct or indirect credit
support for or a guarantee of any Indebtedness of any Unrestricted Subsidiary
(including of any undertaking, agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary or (z) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary), except, in the case of clause (x) or (y), to the extent permitted
under the covenant described under Section 4.4 of this Indenture.
The Company may revoke any Designation of a Subsidiary as an Unrestricted
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Subsidiary (a "Revocation"), whereupon such Subsidiary shall then constitute a
Restricted Subsidiary, if:
(a) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by Board Resolutions of
the Company delivered to the Trustee certifying compliance with the foregoing
provisions.
SECTION 4.13. Further Instruments and Acts. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.14. Use of Proceeds. The Company shall use the net proceeds from
the sale of the Securities to consummate the transactions contemplated in the
section of the Offering Memorandum entitled "Use of Proceeds".
SECTION 4.15. Compliance Certificates. (a) The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officers'
Certificate signed by its principal executive officer, principal financial
officer or principal accounting officer stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining
whether each has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge each has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto).
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.2 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements nothing has come to
their attention which would lead them to believe that the Company has violated
any provisions of Article 4 or 5 or that there exists a Default or Event of
Default under Article 6 of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly
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to any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, within 5 days of any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
(d) The Company shall also comply with TIA ss. 314(a)(4).
SECTION 4.16. Maintenance of Office or Agency. (a) The Company shall
maintain in the Borough of Manhattan, in the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company shall
give prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, in the City of New York for such purposes. The Company
shall give prior written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
(c) The Company hereby designates the Trustee at 000 Xxxxxxx Xxxxxx, 00X,
Xxx Xxxx, Xxx Xxxx 00000, as one such office or agency of the Company in
accordance with Section 2.3.
SECTION 4.17. Taxes. The Company shall pay, prior to delinquency, all
material taxes, assessments, and governmental levies; provided, however, that
there shall not be required to be paid or discharged any such tax, assessment or
charge, the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate provision has been
made or for which adequate reserves, to the extent required under GAAP, have
been taken.
SECTION 4.18. 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 wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture
(including, but not limited to, the payment of the principal of or interest on
the Securities); and the Company (to the extent that it may lawfully do so)
hereby expressly waive all
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benefit or advantage of any such law, and covenant that they shall not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 4.19. Corporate Existence. Subject to Article V, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, and the corporate existence of each
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Subsidiary, if the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the
Securityholders.
ARTICLE V
SUCCESSORS
SECTION 5.1. Mergers and Consolidations. The Company may not, in a single
transaction or through a series of related transactions, consolidate or merge
with or into or sell, assign, transfer, lease, convey or otherwise dispose of
(or permit any of its Restricted Subsidiaries to sell, assign, transfer, lease,
convey or otherwise dispose of) all or substantially all of the Company's and
its Restricted Subsidiaries' assets (determined on a consolidated basis for the
Company and its Restricted Subsidiaries taken as a whole) in one or more related
transactions to another Person unless:
(i) the resulting, surviving or transferee Person (the "Successor
Issuer") shall be a corporation, partnership, trust or limited liability
company organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and the Successor
Issuer (if not the Company) shall expressly assume, by supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Securities and
this Indenture;
(ii) immediately after giving effect to such transaction (and treating
any Indebtedness that becomes an obligation of the Successor Issuer or any
Subsidiary of the Successor Issuer as a result of such transaction as
having been incurred by the Successor Issuer or such Restricted Subsidiary
at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Issuer (A) shall have a Consolidated Net Worth equal or greater
to the Consolidated Net Worth of the Company immediately prior to such
transaction and (B) would be able to incur at least an
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additional $1.00 of Indebtedness pursuant to Section 4.3(a); and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
SECTION 5.2. Successor Issuer Substituted. The Successor Issuer will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, but, in the case of a lease of all or
substantially all its assets, the Company will not be released from the
obligation to pay the principal of and interest on the Securities.
Notwithstanding clauses (ii) and (iii), of Section 5.1, any Restricted
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default" will occur under this
Indenture if:
(i) there shall be a default in the payment of any interest on the
Securities when it becomes due and payable and continuance of such default
for a period of 30 days;
(ii) there shall be a default in the payment of the principal of (or
premium, if any, on) the Securities at their Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration or otherwise;
(iii) the failure by the Company or any of its Subsidiaries to comply
with its obligations under Article V of this Indenture;
(iv) the failure by the Company or any of its Subsidiaries to comply
for 30 days after receiving notice of such noncompliance with any of its
obligations under Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9,
4.10, 4.11, 4.12, 4.15 and 4.19 above (in each case, other than a failure
to purchase Securities, which shall constitute an Event of Default under
clause (ii) above);
(v) the failure by the Issuer to comply for 60 days after receiving
notice of such non-compliance with its other agreements contained in this
Indenture;
(vi) Indebtedness of the Company or any Restricted Subsidiary is not
paid within any applicable grace period after its Stated Maturity or is
accelerated by the holders thereof
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because of a default under the terms of such Indebtedness and the total
amount of such Indebtedness unpaid or accelerated exceeds $1.0 million and
such default shall not have been cured or such acceleration rescinded after
a 10-day period;
(vii) the Company or a Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) consents to or acquiesces in the institution of a bankruptcy
or an insolvency proceeding against it, or
(F) takes any corporate action to authorize or effect any of the
foregoing;
or takes any comparable action under any foreign laws relating to
insolvency;
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of the property of the Company
or any of its Significant Subsidiaries; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary; or any similar relief is granted under any
foreign laws and in each case the order, decree or relief remains
unstayed and in effect for 60 days.
(ix) any judgment or decree for the payment of money in excess of $1.0
million (to the extent not covered by insurance) is rendered against the
Issuer or a Significant Subsidiary and such judgment or decree shall remain
undischarged or unstayed for a period of 60 days after such judgment
becomes final and non-appealable; or
(x) the Pledge Agreement ceases to be in full force and effect (except
as contemplated by the terms of this Indenture) or the Company denies or
disaffirms its
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obligation under the Pledge Agreement and such default continues for 10
days.
Notwithstanding anything to the contrary contained herein, a Default under
clause (iv) or (v) will not constitute an Event of Default until the Trustee or
Holders of 25% in principal amount of all outstanding series of Securities,
acting as a single class, notify the Company of the Default and the Company does
not cure such Default within the time specified in such clause (iv) or (v) after
receipt of such notice.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
The term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
SECTION 6.2. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 6.1(vii) or (viii)) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of all outstanding
series of Securities, voting as a single class, by notice to the Company may
declare the principal of and premium and accrued and unpaid interest, if any, on
all the Securities to be due and payable. Upon such declaration, such principal
and premium and accrued and unpaid interest shall be due and payable
immediately. If an Event of Default specified in Section 6.1(vii) or (viii)
occurs and is continuing, the principal of and premium and accrued and unpaid
interest on all the Securities will become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holders.
The Holders of a majority in principal amount of all outstanding series of
Securities, voting as a single class, by written notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or Event of Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee and the Securityholders may pursue any available remedy
to collect the payment of principal of or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent
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permitted by law.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in
principal amount of all outstanding series of Securities, voting as a single
class, by notice to the Trustee may waive an existing Default or Event of
Default and its consequences except (i) a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on a Security or (ii)
a Default or Event of Default in respect of a provision that under Section 9.2
cannot be amended without the consent of each Securityholder affected. When a
Default or Event of Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any consequent right.
SECTION 6.5. Control by Majority. Subject to Section 2.9, the Holders of a
majority in principal amount of all outstanding series of Securities, voting as
a single class, may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.1,
that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
SECTION 6.6. Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in outstanding principal amount of all
outstanding series of Securities, voting as a single class, make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in outstanding principal amount of all
outstanding series of Securities, voting as a single class, do not give the
Trustee a direction that, in the opinion of the Trustee, is inconsistent
with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another
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Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default specified
in Section 6.1(i) or (ii) or an acceleration pursuant to Section 6.2 occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company or any other obligor of the Securities
for the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may 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 the Securityholders allowed in
any judicial proceedings relative to the Company, its Subsidiaries or their
respective creditors or properties and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Securityholders are forced to proceed against the Company
directly without the Trustee, to the Securityholders for their collection costs;
THIRD: to Securityholders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
FOURTH: to the Company.
The Trustee, upon prior notice to the Company, may fix a record date and
payment date for any payment to Securityholders pursuant to this Section 6.10.
At least 15 days before such record date, the Company shall mail to each
Securityholder and the Trustee a notice that states the record date, the payment
date and amount to be paid.
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SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10%
in outstanding principal amount of the Securities.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee. (a) If a Default or an Event of Default has
occurred and is continuing, the Trustee shall exercise 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.
(b) Except during the continuance of a Default or an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture or the TIA and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions 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).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
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(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee. Subject to TIA ss. 315(a) through (d):
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel which shall conform to
Section 12.5. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel.
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(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders, unless such Securityholders shall have
offered to the Trustee security or indemnity reasonably satisfactory to the
Trustee against the losses, expenses and liabilities that might be incurred
by it in compliance with such request or direction.
(g) The Trustee shall not be liable with respect to any action taken
or omitted to be taken by it good faith in accordance with the direction of
the Securityholders of a majority in aggregate principal amount of the
Securities at the time outstanding relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
involving the exercise of any right, duty, trust or power conferred upon
the Trustee under the TIA or this Indenture.
(h) The Trustee shall not be deemed to have notice of any Default or
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 Debentures and this Indenture.
SECTION 7.3. Individual Rights of Trustee. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and may
make loans to, accept deposits from, perform services for and otherwise deal
with the Company, or their Affiliates with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with
the sale of the Securities or in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of Default occurs
and is continuing and if a Responsible Officer has actual knowledge thereof, the
Trustee shall mail to each Securityholder in the manner and to the extent
provided in TIA ss. 313(a) notice of the Default or Event of Default within 90
days after it occurs, unless such Default or Event of Default has been cured.
Except in the case of a Default or Event of Default in payment of principal,
premium, if any, or interest on any Security (including payments pursuant to the
optional redemption or required repurchase provisions of such Security, if any),
the Trustee may withhold the notice if and so long as its board of directors,
the executive committee of its board of directors or a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Securityholders.
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SECTION 7.6. Reports by Trustee to Holders. As promptly as practicable and
within 60 days after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder, if required by TIA ss. 313(a) a brief report
dated as of such May 15 that complies with TIA ss. 313(a). The Trustee also
shall comply with TIA ss. 313(b), (c) and (d).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the Commission if required by law and each stock exchange (if any)
on which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation for its services as the Company and
the Trustee shall from time to time agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses and advances incurred or made by it, including but not
limited to costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices to
Securityholders and reasonable costs of counsel retained by the Trustee in
connection with the delivery of an Opinion of Counsel or otherwise, in addition
to the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify the Trustee for,
and hold it harmless against, any and all loss, liability or expense (including
reasonable attorneys' fees) incurred by it in connection with the administration
of this trust and the performance of its duties hereunder and under the
Securities, including the costs and expenses of enforcing this Indenture and the
Securities (including this Section 7.7) and of defending itself against any
claims or liabilities (whether asserted by any Securityholder, the Company or
otherwise) and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder. The
Company shall defend the claim and the Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel. The Company need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own willful misconduct, negligence
or bad faith.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities. The Trustee's right to
receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or indebtedness of the Company.
The Company's payment obligations pursuant to this Section shall survive
the
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discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(vii) or (viii) with respect to
the Company, the expenses are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any time by
so notifying the Company in writing at least 30 days in advance of such
resignation. The Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a
majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.7.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section,
the Company's obligations under Section 7.7 shall continue for the benefit of
the retiring Trustee.
If an instrument of acceptance by a successor Trustee shall not have been
delivered
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to the retiring Trustee and the Company within 60 days after the giving of such
notice of removal or resignation, the Trustee being removed or resigning may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Indenture shall at all
times have a Trustee that satisfies the requirements of TIA ss. 310(a). The
Trustee shall have a combined capital and surplus of at least $100 million as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA ss. 310(b); provided, however, that there shall be
excluded from the operation of TIA ss. 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities; Defeasance. (a) When (i)
the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.7 hereof) canceled or for cancellation
or (ii) all outstanding Securities have become due and payable and the Company
irrevocably deposits with the Trustee funds sufficient to pay at maturity all
outstanding Securities, including interest thereon (other than Securities
replaced pursuant to Section 2.7 hereof), and if in either case the Company pays
all other sums payable hereunder by the Company, then this Indenture shall,
subject to Sections 8.1(e) and 8.6 hereof, cease
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to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to Sections 8.1(e), 8.2 and 8.6 hereof, the Company at any time
may terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) all obligations under Sections 4.3, 4.4,
4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.15(a), (b) and (c), 4.19, or
5.1(iii) and (iv) and the operation of Sections 6.1(vi) and 6.1(ix) (as well as
6.1(vii) and 6.1(viii) hereof but only with respect to Significant Subsidiaries)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
(c) If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.1(iv),
6.1(vi), 6.1(vii), (viii) or 6.1(ix), or because of the failure of the Company
to comply with Sections 5.1(iii) or 5.1(iv).
(d) Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(e) Notwithstanding clauses (a) and (b) above, the Company's obligations in
Sections 2.3, 2.4, 2.5, 2.6, 2.7, 7.7, 7.8, 8.4, 8.5 and 8.6 hereof shall
survive until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.7, 8.4 and 8.5 hereof shall survive.
SECTION 8.2. Conditions to Defeasance. (a) The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations in amounts (including interest, but without
consideration of any reinvestment of such interest) and maturities
sufficient, but in the case of the legal defeasance option only, not more
than such amounts (as certified by a nationally recognized firm of
independent public accountants), to pay and discharge at their Stated
Maturity (or such earlier redemption date as the Company shall have
specified to the Trustee) the principal of, premium, if any, and interest
on all outstanding Securities to maturity or redemption, as the case may
be, and to pay all of the sums payable by it hereunder; provided, that the
Trustee shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of said
principal, premium, if any, and interest with respect to the Securities;
(ii) in the case of the legal defeasance option only, 123 days pass
after the deposit is made and during the 123 day period no Default
specified in Section 6.1(vii) or (viii) hereof
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with respect to the Company occurs which is continuing at the end of the
period;
(iii) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(iv) the deposit does not constitute a default under any other
agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940, as amended;
(vi) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(vii) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(viii) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Securities as contemplated by this
Article VIII have been complied with.
(b) In order to have money available on a payment date to pay principal,
premium, if any, or interest on the Securities, the U.S. Government Obligations
deposited pursuant to preceding clause (a) shall be payable as to principal or
interest at least one Business Day before such payment date in such amounts as
shall provide the necessary money. U.S. Government Obligations shall not be
callable at the issuer's option.
(c) Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III hereof.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in trust
money
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or U.S. Government Obligations deposited with it pursuant to this Article VIII.
It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal, premium, if any, and interest on the Securities.
SECTION 8.4. Repayment to the Company. (a) The Trustee and the Paying Agent
shall promptly pay to the Company upon written request any excess money or
securities held by them at any time; provided, however, that the Trustee shall
not pay any such excess to the Company unless the amount remaining on deposit
with the Trustee, after giving effect to such transfer are sufficient to pay
principal, premium, if any, and interest on the outstanding Securities, which
amount shall be certified by independent public accountants.
(b) The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due; provided, however, that the Company shall have
either caused notice of such payment to be mailed to each Securityholder
entitled thereto no less than 30 days prior to such repayment or within such
period shall have published such notice in a financial newspaper of widespread
circulation published in the City of New York. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
SECTION 8.5. Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article 8
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's Obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article VIII until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article VIII; provided, however, that if the Company has made any
payment of principal of, premium, if any, or interest on any Securities because
of the reinstatement of its Obligations, the Company shall be subrogated to the
rights of the Securityholders to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. (a) The Company and the Trustee
may amend this Indenture or the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
provided, that such amendment or supplement does not, as evidenced by an
Opinion of Counsel delivered to the Trustee, adversely affect the rights of
any Securityholder in any material respect;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to provide additional security for the Securities;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(7) to make any change that does not adversely affect the rights of
any Securityholder;
(8) to surrender any right or power conferred upon the Company;
(9) to provide for a replacement Trustee under Section 7.8 hereof; or
(10) to provide for the issuance of the Exchange Securities, which
will have terms substantially identical in all material respects to the
Initial Securities (except that the transfer restrictions contained in the
Initial Securities will be modified or eliminated, as appropriate), and
which will be treated, together with any outstanding Initial Securities, as
a single issue of securities;
provided, that the Company has delivered to the Trustee an Opinion of Counsel
stating that any such amendment or supplement complies with the provisions of
this Section 9.1.
(b) Upon the request of the Company accompanied by a Board Resolution of
its Board of Directors authorizing the execution of any such supplemental
indenture, and upon receipt
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by the Trustee of the documents described in Section 10.5, the Trustee shall
join with the Company in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into such supplemental indenture which affects
its own rights, duties or immunities under this Indenture or otherwise.
(c) After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment.
However, the failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.2. With Consent of Holders. (a) The Company and the Trustee may
amend this Indenture or the Securities with the consent of the Holders of at
least a majority in outstanding principal amount of all outstanding series of
Securities, voting as a single class, (including consents obtained in connection
with a tender offer or exchange offer for the Securities) and any existing
Default and its consequences (including, without limitation, an acceleration of
the Securities) or compliance with any provision of this Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of, voting as a single class, all outstanding series of
Securities (including consents obtained in connection with a tender offer or
exchange offer for the Securities). Furthermore, subject to Sections 6.4 and
6.7, the Holders of a majority in aggregate principal amount of all outstanding
series of Securities, voting as a single class, (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Securities. However, without the consent of each Holder of a
Security then outstanding, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption or repurchase of
any Security or change the time at which any Security may or shall be
redeemed or repurchased in accordance with this Indenture;
(5) make any Security payable in money other than that stated in the
Security;
(6) modify or affect in any manner adverse to the Holders, the terms
and conditions of the obligation of the Company for the due and punctual
payment of the principal of or interest on Securities or to institute suit
for the enforcement of any payment on or with respect to the Securities;
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(7) waive a Default or Event of Default in the payment of principal
of, premium, if any, or interest on, or redemption payment with respect to,
any Security (excluding any principal or interest due solely as a result of
the occurrence of a declaration of an Event of Default); or
(8) make any change in Section 6.4 or 6.7 or the third sentence of
this Section;
(9) amend, change or modify in any material respect the obligation of
the Company to make and consummate a Change of Control Offer in the event
of a Change of Control or make and consummate an offer with respect to any
Asset Sale that has been consummated or modify any of the provisions or
definitions with respect thereto;
(10) modify or change any provision of the Indenture or the related
definitions affecting the ranking of the Securities in a manner which
adversely affects the Holders; or
(11) make any change in the amendment provisions which require each
holder's consent or in the waiver provisions.
(b) Upon the request of the Company accompanied by a Board Resolution of
its respective Board of Directors authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Securityholders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.6, 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.
(c) It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
(d) After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every
subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
or waiver is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder's Security or
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portion of the Security if the Trustee receives the notice of revocation before
the date the amendment or waiver becomes effective. After an amendment or waiver
becomes effective, it shall bind every Securityholder.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall become valid or effective more than 120
days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an amendment changes
the terms of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security regarding the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to issue
a new Security shall not affect the validity of such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control. If any provision of this Indenture modifies or excludes
any provision of the TIA that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 10.2. Notices. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
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COMFORCE Operating Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to
the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
All notices and communications (other than those sent to Securityholders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed.
Any notice or communication to a Securityholder shall be mailed by first
class mail, postage prepaid, to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail
a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed to any Person in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 10.3. Communication by Holders with other Holders. Securityholders
may communicate pursuant to TIA ss. 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent. Upon any
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request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.5) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.5) stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 10.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, 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
individual, such covenant or condition has been complied with and such
other opinions as the Trustee may reasonably request.
SECTION 10.6. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar. The Trustee may
make reasonable rules for action by or at a meeting of Securityholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
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SECTION 10.8. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions are not required to be open in the State of
New York, or the State in which the Corporate Trust Office is located. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
SECTION 10.9. Governing Law. This Indenture and the Securities shall be
governed by, and construed in accordance with, the laws of the State of New York
but without giving effect to applicable principles of conflicts of law to the
extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 10.10. No Recourse Against Others. A past, present or future
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 10.11. Successors. All agreements of the Company in this Indenture
and the Securities shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 10.13. Variable Provisions. The Company initially appoints the
Trustee as Paying Agent and Registrar and custodian with respect to any Global
Securities.
SECTION 10.14. Qualification of Indenture. The Company shall qualify this
Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees for the Company, the Trustee and the Holders)
incurred in connection therewith, including, but not limited to, costs and
expenses of qualification of the Indenture and the Securities and printing this
Indenture and the Securities. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 10.15. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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SECTION 10.16. Severability. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the fullest
extent permitted by law.
SECTION 10.17. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
COMFORCE CORPORATION
By /s/ Xxxx Xxxxxx
------------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President & Chief Financial
Officer
THE BANK OF NEW YORK, AS TRUSTEE
By /s/ Xxxx Xx Xxxxxx
------------------------------------------------
Name: Xxxx Xx Xxxxxx
Title:
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EXHIBIT A
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
"INSTITUTIONAL ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or
(7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT
IS NOT A UNITED STATES PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF THE SECURITIES ACT, (2) AGREES THAT
IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE
SECURITIES ACT AS IN EFFECT WITH RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES AT THE TIME OF TRANSFER OF LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT AN INITIAL INVESTOR
THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR PURCHASING AS DESCRIBED IN CLAUSE
(1)(B) ABOVE SHALL NOT BE PERMITTED TO TRANSFER THIS NOTE TO AN INSTITUTIONAL
ACCREDITED INVESTOR. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THE
TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR PURCHASING PURSUANT TO CLAUSE (2)(C) ABOVE, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
Exhibit A
Page 2
AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION" "UNITED STATES" AND "UNITED STATES PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY
SUCH NOMINEE, TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF 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.
Exhibit A
Page 3
CUSIP No:
(Front of Security)
No. ____ $____________
COMFORCE CORPORATION
15% Senior Secured PIK Debentures due 2009
COMFORCE CORPORATION, a Delaware corporation, for value received, promises to
pay to Cede & Co., as nominee of the Depository Trust Company, or its registered
assigns, the principal sum of $__________ on December 1, 2009.
Interest Payment Dates: June 1, and December 1, commencing June 1, 1998.
Record Dates: May 15 and November 15 (whether or not a Business Day).
Additional provisions of this Security are set forth on the other side of this
Security.
Dated:
COMFORCE CORPORATION
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
Exhibit A
Page 4
(Trustee's Certificate of Authentication)
This is one of the Securities referred
to in the within-mentioned Indenture
THE BANK OF NEW YORK, as Trustee
By:_________________________________
Authorized Signatory
Exhibit A
Page 5
(Reverse of Security)
COMFORCE CORPORATION
15% SENIOR SECURED PIK DEBENTURES DUE 2009
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Interest. COMFORCE Corporation, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
and in the manner specified below. The Company shall pay, in cash, interest on
the principal amount of this Security at the rate per annum of 15%; provided,
however, that through and including December 1, 2002, on each Interest Payment
Date, the Company may, at its option and in its sole discretion, in lieu of the
payment in whole or in part of interest due on this Security, pay interest on
this Security through the issuance of additional Securities in an aggregate
principal amount equal to the amount of interest that would be payable with
respect to this Security, if such interest were paid in cash. After December 1,
2002, the Company shall pay interest on this Security in cash. The Company shall
notify the Trustee in writing of its election to pay interest on this Security
through the issuance of additional Securities not less than 10 nor more than 45
days prior to the record date for the Interest Payment Date on which additional
Securities will be issued. Additional Securities shall be governed by, and
entitled to the benefits of, the Indenture and shall be subject to the terms of
the Indenture and shall be subject to the same terms (including the rate of
interest from time to time payable thereon) as this Security (except, as the
case may be, with respect to the issuance date and aggregate principal amount).
The Company will pay interest semiannually in arrears on June 1 and December 1
of each year (each an "Interest Payment Date"), commencing June 1, 1998, or if
any such day is not a Business Day on the next succeeding Business Day. Interest
will be computed on the basis of a 360-day year consisting of twelve 30-day
months. Interest shall accrue from the most recent Interest Payment Date to
which interest has been paid or, if no interest has been paid, from the date of
the original issuance of the Securities. To the extent lawful, the Company shall
pay interest on overdue principal at the rate of 2% per annum in excess of the
then applicable interest rate on the Securities; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) at the same rate to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the Record Date immediately preceding the
Interest Payment Date, even if such Securities are cancelled after such Record
Date and on or before such Interest Payment Date. Securityholders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal, premium, if any, and interest in money of the United States that
at the time of payment is
Exhibit A
Page 6
legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal, premium, if any, and interest by its
check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Securityholder at the
Securityholder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Securityholder. The Company may act in
any such capacity.
4. Indenture. The Company issued the Securities under an Indenture, dated
as of November 26, 1997 (the "Indenture"), among the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code xx.xx. 77aaa-77bbbb) (the "TIA") as in effect on the date the Indenture is
qualified. The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the TIA for a statement of such terms. The terms
of the Indenture shall govern any inconsistencies between the Indenture and the
Securities. The Securities include the Initial Securities and the Exchange
Securities issued in exchange for the Initial Securities pursuant to the
Indenture. The Initial Securities and the Exchange Securities are treated as a
single class of securities under the Indenture. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the TIA, as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Securities are subject to
all such terms, and Securityholders of Securities are referred to the Indenture
and said Act for a statement of them. The Securities are unsecured senior
obligations of the Company limited to $50,000,000 in aggregate principal amount.
5. (a) Optional Redemption. The Securities will be redeemable, at the
Company's option, in whole or in part, at any time upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), if redeemed during the 12-month period commencing on
December 1 of the years set forth below, plus accrued and unpaid interest to the
redemption date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
1997 103.000%
1998 and
thereafter 107.500%
(b) Optional Redemption Upon Public Offerings. In addition, at any time the
Exhibit A
Page 7
Company, at its option, may redeem up to 100% of the aggregate principal amount
of the Securities with the net cash proceeds of one or more Equity Offerings so
long as there is a Public Market at the time of such redemption at redemption
prices described in paragraph(c) above, plus accrued and unpaid interest
thereon, if any, to the date of redemption. In order to effect the foregoing
redemption with the proceeds of any Equity Offering, the Company shall make such
redemption not more than 90 days after the consummation of any such Equity
Offering.
As used in the preceding paragraph, "Equity Offering" means an offering for
cash by the Company of its common stock, or options, warrants or rights with
respect to its common stock.
6. Mandatory Redemption. Except as set forth in the next succeeding
sentences, the Securities are not subject to mandatory redemption or sinking
fund payments. If the Uniforce Acquisition is not consummated on or prior to the
15th Business Day after the Issue Date (the "Special Redemption Date"), this
Security will be subject to mandatory special redemption at a redemption price
equal to 101% of its principal amount plus accrued and unpaid interest to the
Special Redemption Date.
7. Repurchase at Option of Securityholder. Sections 4.8 and 4.9 of the
Indenture provide that, after certain Asset Sales (as defined in the Indenture)
and upon the occurrence of a Change of Control (as defined in the Indenture),
and subject to the further limitations contained therein, the Company will make
an offer to purchase certain amounts of the Securities in accordance with
procedures set forth in the Indenture.
8. Selection and Notice of Redemption. In the case of any partial
redemption, selection of the Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed, or if such Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
or by such other method as the Trustee in its sole discretion shall deem to be
fair and appropriate; provided, however, that if a partial redemption is made
with the proceeds of an Equity Offering, selection of the Securities or portion
thereof for redemption shall be made by the Trustee only on a pro rata basis,
unless such method is otherwise prohibited. Securities may be redeemed in part
in multiples of $1,000 principal amount only. Notice of redemption will be sent,
by first class mail, postage prepaid, at least 45 days (unless a shorter period
is acceptable to the Trustee) prior to the date fixed for redemption to each
holder whose Securities are to be redeemed at the last address for such holder
then shown on the registry books. If any Security is to be redeemed in part
only, the notice of redemption that relates to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the holder thereof upon cancellation of the original Security. On and
after any redemption date, interest will cease to accrue on the Securities or
part thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the redemption price pursuant to the
Indenture.
Exhibit A
Page 8
9. Registration Rights. Pursuant to the Registration Rights Agreement, and
subject to certain terms and conditions stated therein, the Company will be
obligated to consummate an Exchange Offer pursuant to which the Holders of the
Initial Securities shall have the right to exchange this Security for Exchange
Securities, which have been registered under the Securities Act, in like
principal amount and having terms identical in all material respect to the
Initial Security. In certain circumstances, and subject to certain terms and
conditions, Holders of the Initial Securities shall have the right to receive
liquidated damages if the Company shall have failed to fulfill its obligations
under the Registration Rights Agreement.
10. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Securityholder among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not exchange or register the
transfer of any Security or portion of a Security selected for redemption. Also,
it need not exchange or register the transfer of any Securities during a period
beginning at the opening of business on a Business Day 15 days before the day of
any selection of Securities to be redeemed and ending at the close of business
on the day of selection or during the period between a Record Date and the
corresponding Interest Payment Date.
11. Persons Deemed Owners. Prior to due presentment to the Trustee for
registration of the transfer of this Security, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Security is registered
as its absolute owner for the purpose of receiving payment of principal of,
premium, if any, and interest on this Security and for all other purposes
whatsoever, whether or not this Security is overdue, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the contrary. The
registered Securityholder shall be treated as its owner for all purposes.
12. Amendments and Waivers. Subject to certain exceptions provided in the
Indenture, the Indenture or the Securities may be amended with the written
consent of the Holders of a majority in principal amount of all outstanding
series of the Securities, voting as a single class, and any existing Default or
Event of Default (except a payment default) may be waived with the consent of
the Holders of a majority in principal amount of all outstanding series of the
Securities, voting as a single class. Without the consent of any Securityholder,
the Indenture or the Securities may be amended to, among other things, cure any
ambiguity, defect or inconsistency, to comply with the requirements of the
Commission in order to effect or maintain qualification of the Indenture under
the TIA or to make any change that does not adversely affect in any material
respect the rights of any Securityholder.
13. Defaults and Remedies. If an Event of Default occurs and is continuing,
the Trustee or the holders of at least 25% in principal amount of all
outstanding series of the Securities,
Exhibit A
Page 9
voting as a single class, by notice to the Company may declare the principal of
and accrued and unpaid interest, if any, on all the Securities to be due and
payable. Upon such a declaration, such principal and accrued and unpaid interest
shall be due and payable immediately. If an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company occurs and is
continuing, the principal of and accrued and unpaid interest on all the
Securities will become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any holders. Under
certain circumstances, the holders of a majority in principal amount of all
outstanding series of the Securities, voting as a single class, may rescind any
such acceleration with respect to the Securities and its consequences.
14. Trustee Dealings with the Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or any Affiliate of the Company and may
otherwise deal with the Company and their respective Affiliates as if it were
not Trustee.
15. Restrictive Covenants. The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, pay dividends or make certain other restricted
payments, consummate certain asset sales, enter into certain transactions with
affiliates, incur liens, create restrictions on the ability of a subsidiary to
pay dividends or make certain payments, sell or issue preferred stock of
subsidiaries to third parties, merge or consolidate with any other person or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of the assets of the Company. Such limitations are subject to
a number of important qualifications and exceptions provided for in the
Indenture. The Company must annually report to the Trustee on compliance with
such limitations.
16. Authentication. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. Defeasance. Subject to certain conditions provided for in the
Indenture, the Company at any time may terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of principal, premium (if
any) and interest on the Securities to redemption or maturity, as the case may
be.
18. Governing Law. The Laws of the State of New York shall govern this
Security and the Indenture, without regard to principles of conflict of laws.
19. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
20. Successors. When a successor assumes, in accordance with the Indenture,
all the
Exhibit A
Page 10
obligations of its predecessors under the Securities and the Indenture, the
predecessor will be released from those obligations.
21. No Recourse Against Others. No stockholder, director, officer, employee
or incorporator, as such, of the Company shall have any liability for any
obligation of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
22. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture. Request may be made to:
COMFORCE Corporation
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Exhibit A
Page 11
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Exhibit A
Page 12
Date:______________
Your Signature: _________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
__________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the [Registrar] in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Exhibit A
Page 13
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security purchased by
the Company pursuant to Section 4.8 or Section 4.9 of the Indenture check the
appropriate box:
_ Section 4.8 _ Section 4.9
If you want to have only part of the Security purchased by the Company
pursuant to Section 4.8 or Section 4.9 of the Indenture, state the amount you
elect to have purchased:
$______________________
Date:_________________
Your Signature: _________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
__________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the [Registrar] in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT A-2
THIS SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON (AS SUCH TERM IS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) OR FOR THE ACCOUNT OR
BENEFIT OF A UNITED STATES PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED
PERIOD (AS DEFINED IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF THIS
SECURITY MAY BE MADE FOR AN INTEREST IN A PHYSICAL SECURITY UNTIL AFTER THE
LATER OF THE DATE OF EXPIRATION OF THE RESTRICTED PERIOD AND THE DATE ON
WHICH THE PROPER REQUIRED CERTIFICATION RELATING TO SUCH INTEREST HAS BEEN
PROVIDED IN ACCORDANCE WITH THE TERMS OF THE INDENTURE, TO THE EFFECT THAT
THE BENEFICIAL OWNER OR OWNERS OF SUCH INTEREST ARE NOT UNITED STATES
PERSONS.
EXHIBIT B
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF
THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.17 OF THE INDENTURE.]
Exhibit B
Page 2
CUSIP No:
(Front of Security)
No. ____ $__________
COMFORCE CORPORATION
15% Senior Secured PIK Debentures due 2009
COMFORCE CORPORATION, a Delaware corporation, for value received, promises to
pay to Cede & Co., as nominee of the Depository Trust Company, or its registered
assigns, the principal sum of $__________ on December 1, 2009.
Interest Payment Dates: June 1, and December 1, commencing June 1, 1998.
Record Dates: May 15 and November 15 (whether or not a Business Day).
Additional provisions of this Security are set forth on the other side of this
Security.
Dated:
COMFORCE CORPORATION
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
Exhibit B
Page 3
(Trustee's Certificate of Authentication)
This is one of the Securities referred
to in the within-mentioned Indenture
THE BANK OF NEW YORK, as Trustee
By:_________________________________
Authorized Signatory
Exhibit B
Page 4
(Reverse of Security)
COMFORCE CORPORATION
15% SENIOR SECURED PIK DEBENTURES DUE 2009
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Interest. COMFORCE Corporation, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
and in the manner specified below. The Company shall pay, in cash, interest on
the principal amount of this Security at the rate per annum of 15%; provided,
however, that through and including December 1, 2002, on each Interest Payment
Date, the Company may, at its option and in its sole discretion, in lieu of the
payment in whole or in part of interest due on this Security, pay interest on
this Security through the issuance of additional Securities in an aggregate
principal amount equal to the amount of interest that would be payable with
respect to this Security, if such interest were paid in cash. After December 1,
2002, the Company shall pay interest on this Security in cash. The Company shall
notify the Trustee in writing of its election to pay interest on this Security
through the issuance of additional Securities not less than 10 nor more than 45
days prior to the record date for the Interest Payment Date on which additional
Securities will be issued. Additional Securities shall be governed by, and
entitled to the benefits of, the Indenture and shall be subject to the same
terms (including the rate of interest from time to time payable thereon) as this
Security (except, as the case may be, with respect to the issuance date and
aggregate principal amount). The Company will pay interest semiannually in
arrears on June 1 and December 1 of each year (each an "Interest Payment Date"),
commencing June 1, 1998, or if any such day is not a Business Day on the next
succeeding Business Day. Interest will be computed on the basis of a 360-day
year consisting of twelve 30-day months. Interest shall accrue from the most
recent Interest Payment Date to which interest has been paid or, if no interest
has been paid, from the date of the original issuance of the Securities. To the
extent lawful, the Company shall pay interest on overdue principal at the rate
of 2% per annum in excess of the then applicable interest rate on the
Securities; it shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment. The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the Record Date immediately preceding the
Interest Payment Date, even if such Securities are cancelled after such Record
Date and on or before such Interest Payment Date. Securityholders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal, premium, if any, and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company
Exhibit B
Page 5
may pay principal, premium, if any, and interest by its check payable in such
U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Securityholder at the Securityholder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Securityholder. The Company may act in
any such capacity.
4. Indenture. The Company issued the Securities under an Indenture, dated
as of November __, 1997 (the "Indenture"), among the Company and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the TIA as in effect on the date the
Indenture is qualified. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
such terms. The terms of the Indenture shall govern any inconsistencies between
the Indenture and the Securities. The Securities include the Initial Securities
and the Exchange Securities issued in exchange for the Initial Securities
pursuant to the Indenture. The Initial Securities and the Exchange Securities
are treated as a single class of securities under the Indenture. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code xx.xx. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Securityholders of Securities are referred to the
Indenture and said Act for a statement of them. The Securities are unsecured
senior obligations of the Company limited to $50,000,000 in aggregate principal
amount.
5. (a) Optional Redemption. Except as set forth below, the Securities will
not be redeemable at the option of the Company prior to December 1, 2002. On and
after such date, the Securities will be redeemable, at the Company's option, in
whole or in part, at any time upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each holder's registered address, at the
following redemption prices (expressed in percentages of principal amount), if
redeemed during the 12-month period commencing on December 1 of the years set
forth below, plus accrued and unpaid interest to the redemption date (subject to
the right of holders of record on the relevant record date to receive interest
due on the relevant interest payment date):
Redemption
Year Price
---- -----
1997 103.000%
1998 and
thereafter 107.500%
Exhibit B
Page 6
(b) Optional Redemption Upon Public Offerings. In addition, at any time, the
Company, at its option, may redeem up to 100% of the aggregate principal amount
of the Securities with the net cash proceeds of one or more Equity Offerings so
long as there is a Public Market at the time of such redemption at redemption
prices described in paragraph (c) above, plus accrued and unpaid interest
thereon, if any, to the date of redemption. In order to effect the foregoing
redemption with the proceeds of any Public Equity Offering, the Company shall
make such redemption not more than 90 days after the consummation of any such
Public Equity Offering.
As used in the preceding paragraph, "Equity Offering" means an offering for
cash by the Company of its common stock, or options, warrants, or rights with
respect to its common stock.
6. Mandatory Redemption. Except as set forth in the next succeeding
sentence, the Securities are not subject to mandatory redemption or sinking fund
payments. If the Uniforce Acquisition is not consummated on or prior to the 15th
Business Day after the Issue Date (the "Special Redemption Date") this Security
will be subject to mandatory special redemption at a redemption price equal to
101% of its principal amount plus accrued and unpaid interest to the Special
Redemption Date.
7. Repurchase at Option of Securityholder. Sections 4.8 and 4.9 of the
Indenture provide that, after certain Asset Sales (as defined in the Indenture)
and upon the occurrence of a Change of Control (as defined in the Indenture),
and subject to the further limitations contained therein, the Company will make
an offer to purchase certain amounts of the Securities in accordance with
procedures set forth in the Indenture.
8. Selection and Notice of Redemption. In the case of any partial
redemption, selection of the Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed, or if such Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
or by such other method as the Trustee in its sole discretion shall deem to be
fair and appropriate; provided, however, that if a partial redemption is made
with the proceeds of an Equity Offering, selection of the Securities or portion
thereof for redemption shall be made by the Trustee only on a pro rata basis,
unless such method is otherwise prohibited. Securities may be redeemed in part
in multiples of $1,000 principal amount only. Notice of redemption will be sent,
by first class mail, postage prepaid, at least 45 days (unless a shorter period
is acceptable to the Trustee) prior to the date fixed for redemption to each
holder whose Securities are to be redeemed at the last address for such holder
then shown on the registry books. If any Security is to be redeemed in part
only, the notice of redemption that relates to such Security shall state the
portion of the principal amount thereof to be redeemed. A new Security in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the holder thereof upon cancellation of the original Security. On and
after any redemption date, interest will cease to accrue on the Securities or
part thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the redemption price pursuant to the
Indenture.
Exhibit B
Page 7
9. Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a
Securityholder among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it need not
exchange or register the transfer of any Securities during a period beginning at
the opening of business on a Business Day 15 days before the day of any
selection of Securities to be redeemed and ending at the close of business on
the day of selection or during the period between a Record Date and the
corresponding Interest Payment Date.
10. Persons Deemed Owners. Prior to due presentment to the Trustee for
registration of the transfer of this Security, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Security is registered
as its absolute owner for the purpose of receiving payment of principal of,
premium, if any, and interest on this Security and for all other purposes
whatsoever, whether or not this Security is overdue, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the contrary. The
registered Securityholder shall be treated as its owner for all purposes.
11. Amendments and Waivers. Subject to certain exceptions provided in the
Indenture, the Indenture or the Securities may be amended with the written
consent of the Holders of a majority in principal amount of all outstanding
series of the Securities, voting as a single class, and any existing Default or
Event of Default (except a payment default) may be waived with the consent of
the Holders of a majority in principal amount of all outstanding series of the
Securities, voting as a single class. Without the consent of any Securityholder,
the Indenture or the Securities may be amended to, among other things, cure any
ambiguity, defect or inconsistency, to comply with the requirements of the
Commission in order to effect or maintain qualification of the Indenture under
the TIA or to make any change that does not adversely affect in any material
respect the rights of any Securityholder.
12. Defaults and Remedies. If an Event of Default occurs and is continuing,
the Trustee or the holders of at least 25% in principal amount of all
outstanding series of the Securities, voting as a single class, by notice to the
Company may declare the principal of and accrued and unpaid interest, if any, on
all the Securities to be due and payable. Upon such a declaration, such
principal and accrued and unpaid interest shall be due and payable immediately,
if an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs and is continuing, the principal of and
accrued and unpaid interest on all the Securities will become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any holders. Under certain circumstances, the holders of a majority in
principal amount of all outstanding series of the Securities, voting as a single
class, may rescind any such acceleration with respect to the Securities and its
consequences.
Exhibit B
Page 8
13. Trustee Dealings with the Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or any Affiliate of the Company and may
otherwise deal with the Company and their respective Affiliates as if it were
not Trustee.
14. Restrictive Covenants. The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its Capital Stock or
certain Indebtedness, pay dividends or make certain other restricted payments,
consummate certain asset sales, enter into certain transactions with affiliates,
incur liens, create restrictions on the ability of a subsidiary to pay dividends
or make certain payments, sell or issue preferred stock of subsidiaries to third
parties, merge or consolidate with any other person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of the assets of
the Company. Such limitations are subject to a number of important
qualifications and exceptions provided for in the Indenture. The Company must
annually report to the Trustee on compliance with such limitations.
15. Authentication. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Defeasance. Subject to certain conditions provided for in the
Indenture, the Company at any time may terminate some or all of its obligations
under the Securities and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of principal, premium (if
any) and interest on the Securities to redemption or maturity, as the case may
be.
17. Governing Law. The Laws of the State of New York shall govern this
Security and the Indenture, without regard to principles of conflict of laws.
18. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
19. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
20. Successors. When a successor assumes, in accordance with the Indenture,
all the obligations of its predecessors under the Securities and the Indenture,
the predecessor will be released from those obligations.
21. No Recourse Against Others. No stockholder, director, officer, employee
or
Exhibit B
Page 9
incorporator, as such, of the Company shall have any liability for any
obligation of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
22. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture. Request may be made to:
COMFORCE Corporation
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Exhibit B
Page 10
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Exhibit B
Page 11
Date:______________
Your Signature: _________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
_______________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the [Registrar] in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Exhibit B
Page 12
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security purchased by
the Company pursuant to Section 4.8 or Section 4.9 of the Indenture check the
appropriate box:
_ Section 4.8 _ Section 4.9
If you want to have only part of the Security purchased by the Company
pursuant to Section 4.8 or Section 4.9 of the Indenture, state the amount you
elect to have purchased:
$______________________
Date:_________________
Your Signature: _________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:
_________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the [Registrar] in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: COMFORCE Corporation
15% Senior Secured PIK Debentures due 2009
Ladies and Gentlemen:
In connection with our proposed purchase of 15% Senior Secured PIK
Debentures due 2009 (the "Securities") of COMFORCE Corporation (the "Company"),
we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated November 19, 1997 relating to the Securities and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated on pages (i) and
(ii) of the Offering Memorandum and in the section entitled "Transfer
Restrictions" of the Offering Memorandum including the restrictions on
duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Securities is subject
to certain restrictions and conditions set forth in the Indenture relating to
the Securities (as described in the Offering Memorandum) and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the
Securities except in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Securities have not been
registered under the Securities Act, and that the Securities may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell or otherwise transfer any Securities prior to the
date which within the time period referred to in Rule 144(K) under the
Securities Act as in effect with respect to such transfer, we will do so only
(i) to the Company or any of its subsidiaries, (ii) inside the United States in
accordance with Rule 144A under the Securities Act to a "qualified
Exhibit C
Page 2
institutional buyer" (as defined in Rule 144A under the Securities Act), (iii)
inside the United States to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes to the Trustee (as defined in the
Indenture relating to the Securities), a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Securities, and if such transfer is in respect of an aggregate principal amount
of Securities at the time of transfer of less than $250,000, an Opinion of
Counsel acceptable to the Company that such transfer is in compliance with the
Securities Act, (iv) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), or
(vi) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the Securities
from us a notice advising such purchaser that resales of the Securities are
restricted as stated herein.
4. We are not acquiring the Securities for or on behalf of, and will not
transfer the Securities to, any pension or welfare plan (as defined in Section 3
of the Employee Retirement Income Security Act of 1974), except as permitted in
the section entitled "Transfer Restrictions" of the Offering Memorandum.
5. We understand that, on any proposed resale of any Securities, we will be
required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investment, as the case may be.
7. We are acquiring the Securities purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
Exhibit C
Page 3
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:___________________________
Name:
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
________________, __
The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: COMFORCE Corporation (the "Company") 15% Senior Secured
PIK Debentures due 2009 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_____________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a Person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration
Exhibit D
Page 2
requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:___________________________
Authorized Signature
EXHIBIT D
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..........................1
SECTION 1.1. Definitions.............................................1
SECTION 1.2. Other Definitions......................................20
SECTION 1.3. Incorporation by Reference of Trust Indenture Act......20
SECTION 1.4. Rules of Construction..................................20
ARTICLE II THE SECURITIES....................................................21
SECTION 2.1. Form and Dating........................................21
SECTION 2.2. Execution and Authentication...........................22
SECTION 2.3. Registrar and Paying Agent.............................23
SECTION 2.4. Paying Agent to Hold Money in Trust....................24
SECTION 2.5. Securityholder Lists...................................24
SECTION 2.6. Transfer and Exchange..................................24
SECTION 2.7. Replacement Securities.................................25
SECTION 2.8. Outstanding Securities.................................25
SECTION 2.9. Treasury Securities....................................26
SECTION 2.10. Temporary Securities..................................26
SECTION 2.11. Cancellation..........................................26
SECTION 2.12. Defaulted Interest....................................26
SECTION 2.13. CUSIP Number..........................................27
SECTION 2.14. Deposit of Moneys.....................................27
SECTION 2.15. Restrictive Legends...................................27
SECTION 2.16. Book-Entry Provisions for Global Security.............29
SECTION 2.17. Special Transfer Provisions...........................30
SECTION 2.18. Persons Deemed Owners.................................33
SECTION 2.19. Record Date...........................................33
ARTICLE III REDEMPTION.......................................................33
SECTION 3.1. Notices to Trustee.....................................33
SECTION 3.2. Selection of Securities To Be Redeemed.................33
SECTION 3.3. Notice of Redemption...................................34
SECTION 3.4. Effect of Notice of Redemption.........................35
SECTION 3.5. Deposit of Redemption Price............................35
SECTION 3.6. Securities Redeemed in Part............................35
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ARTICLE IV COVENANTS.......................................................36
SECTION 4.1. Payment of Securities................................36
SECTION 4.2. Reports..............................................36
SECTION 4.3. Limitation on Indebtedness...........................37
SECTION 4.4. Limitation on Restricted Payments....................39
SECTION 4.5. Limitation on Issuances of Capital Stock of
Restricted Subsidiaries ...........................41
SECTION 4.6. Limitation on Affiliate Transactions.................42
SECTION 4.7. Limitation on Liens..................................42
SECTION 4.8. Limitation on Sales of Assets and Subsidiary Stock...42
SECTION 4.9. Change of Control....................................45
SECTION 4.10. Limitation on Restrictions on Distributions
from RestrictedSubsidiaries ......................46
SECTION 4.11. Limitation on Sale/Leaseback Transactions...........48
SECTION 4.12. Limitation on Designations of Unrestricted
Subsidiaries .....................................48
SECTION 4.13. Further Instruments and Acts........................49
SECTION 4.14. Use of Proceeds.....................................49
SECTION 4.15. Compliance Certificates.............................49
SECTION 4.16. Maintenance of Office or Agency.....................50
SECTION 4.17. Taxes...............................................50
SECTION 4.18. Stay, Extension and Usury Laws......................50
SECTION 4.19. Corporate Existence.................................51
ARTICLE V SUCCESSORS.......................................................51
SECTION 5.1. Mergers and Consolidations...........................51
SECTION 5.2. Successor Issuer Substituted.........................52
ARTICLE VI DEFAULTS AND REMEDIES...........................................52
SECTION 6.1. Events of Default....................................52
SECTION 6.2. Acceleration.........................................54
SECTION 6.3. Other Remedies.......................................54
SECTION 6.4. Waiver of Past Defaults..............................54
SECTION 6.5. Control by Majority..................................55
SECTION 6.6. Limitation on Suits..................................55
SECTION 6.7. Rights of Holders to Receive Payment.................55
SECTION 6.8. Collection Suit by Trustee...........................55
SECTION 6.9. Trustee May File Proofs of Claim.....................56
SECTION 6.10. Priorities..........................................56
SECTION 6.11. Undertaking for Costs...............................56
ARTICLE VII TRUSTEE........................................................56
SECTION 7.1. Duties of Trustee....................................56
(2)
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SECTION 7.2. Rights of Trustee....................................58
SECTION 7.3. Individual Rights of Trustee.........................58
SECTION 7.4. Trustee's Disclaimer.................................58
SECTION 7.5. Notice of Defaults...................................59
SECTION 7.6. Reports by Trustee to Holders........................59
SECTION 7.7. Compensation and Indemnity...........................59
SECTION 7.8. Replacement of Trustee...............................60
SECTION 7.9. Successor Trustee by Merger..........................61
SECTION 7.10. Eligibility; Disqualification.......................61
SECTION 7.11. Preferential Collection of Claims Against Company...61
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE............................61
SECTION 8.1. Discharge of Liability on Securities; Defeasance.....61
SECTION 8.2. Conditions to Defeasance.............................62
SECTION 8.3. Application of Trust Money...........................63
SECTION 8.4. Repayment to the Company.............................64
SECTION 8.5. Indemnity for Government Obligations.................64
SECTION 8.6. Reinstatement........................................64
ARTICLE IX AMENDMENTS......................................................64
SECTION 9.1. Without Consent of Holders...........................64
SECTION 9.2. With Consent of Holders..............................65
SECTION 9.3. Compliance with Trust Indenture Act..................67
SECTION 9.4. Revocation and Effect of Consents and Waivers........67
SECTION 9.5. Notation on or Exchange of Securities................67
SECTION 9.6. Trustee To Sign Amendments...........................68
ARTICLE X MISCELLANEOUS....................................................68
SECTION 10.1. Trust Indenture Act Controls........................68
SECTION 10.2. Notices.............................................68
SECTION 10.3. Communication by Holders with other Holders.........69
SECTION 10.4. Certificate and Opinion as to Conditions Precedent..69
SECTION 10.5. Statements Required in Certificate or Opinion.......69
SECTION 10.6. When Securities Disregarded.........................70
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar........70
SECTION 10.8. Legal Holidays......................................70
SECTION 10.9. Governing Law.......................................70
SECTION 10.10. No Recourse Against Others.........................70
SECTION 10.11. Successors.........................................70
SECTION 10.12. Multiple Originals.................................71
SECTION 10.13. Variable Provisions................................71
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SECTION 10.14. Qualification of Indenture...........................................71
SECTION 10.15. Table of Contents; Headings..........................................71
SECTION 10.16. Severability.........................................................71
SECTION 10.17. No Adverse Interpretation of Other Agreements........................71
Exhibit A - Form of Series A Security.............................A-1
Exhibit B - Form of Series B Security.............................B-1
Exhibit C - Form of Certificate To Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors........C-1
Exhibit D - Form of Certificate To Be Delivered in Connection
with Transfers Pursuant to Regulation S...............D-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
(4)
