<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
GROUP MAINTENANCE AMERICA CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
TEXAS 1711 76-0535259
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION INDUSTRIAL IDENTIFICATION NO.)
OF INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
RANDOLPH W. BRYANT
SENIOR VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY
8 GREENWAY PLAZA, SUITE 8 GREENWAY PLAZA, SUITE 1500
1500 HOUSTON, TEXAS 77046 HOUSTON, TEXAS 77046
(713) 860-0100 (713) 860-0100
(ADDRESS, INCLUDING ZIP (NAME, ADDRESS, INCLUDING
CODE AND TELEPHONE ZIP CODE AND
NUMBER, INCLUDING AREA TELEPHONE NUMBER,
CODE, OF REGISTRANT'S INCLUDING AREA CODE, OF
PRINCIPAL EXECUTIVE AGENT FOR SERVICE)
OFFICES)
----------------
COPIES TO:
GARY W. ORLOFF
BRACEWELL & PATTERSON, L.L.P.
711 LOUISIANA STREET , SUITE 2900
HOUSTON, TEXAS 77002-2781
PHONE: (713) 221-1306
TELECOPIER: (713) 221-1212
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED SECURITY(4) PRICE(5) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
Warrants to Purchase Common Stock
(1)...............................
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Common Stock (shares).............. 2,000,000 $23,375,000(2) $6,499
- -------------------------------------------------------
Subordinated Notes (3)............. $50,000,000 $50,000,000 13,900
- -------------------------------------------------------
Preferred Stock (3)................ $10,000,000(3) $10,000,000 $2,780
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Total............................ $83,375,000 $23,179
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</TABLE>
(1) Consists of warrants to purchase up to 2,000,000 shares of Common Stock
previously registered, and pursuant to Rule 457(g), no additional filing
fee is required.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c).
(3) Pursuant to Rule 429, this Registration Statement contains a combined
prospectus that also relates to 3,341,034 shares of Common Stock previously
registered on Form S-4, Registration No. 333-63923. The maximum aggregate
offering of securities covered by such combined prospectus (in addition to
the 3,341,034 shares of Common Stock previously registered) is $83,375,000.
Without limitation as to class of securities, securities of the classes
listed in the above table may be offered pursuant to such combined
prospectus at a maximum aggregate offering price (or, in the case of
Warrants to Purchase Common Stock, offering price plus warrant exercise
price) of $83,375,000.
(4) The proposed maximum aggregate offering price per security is equal to (a)
100% of the principal amount thereof in the case of Subordinated Notes and
(b) the proposed maximum aggregate offering price divided by the number of
shares offered in the case of Preferred Stock or Common Stock.
(5) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(o).
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement contains a combined prospectus that also relates to 3,341,034 shares
of Common Stock registered on Form S-4, Registration No. 333-63923, which was
declared effective on September 28, 1998 (the "Previously Registered
Securities"). This Registration Statement constitutes Post-Effective Amendment
No. 1 to such Registration Statement, pursuant to which the total amount of
unsold Previously Registered Securities thereon, without limitation as to class
of securities, may be offered and sold as Subordinated Notes, Warrants to
Purchase Common Stock and Common Stock, through the use of the combined
Prospectus included herein. In the event such Previously Registered Securities
are offered and sold prior to the effective date of this Registration
Statement, the amount of such Previously Registered Securities so sold will not
be included in the prospectus hereunder.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE +
+AMENDED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE RELATED REGISTRATION +
+STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY APPLICABLE +
+STATE SECURITIES COMMISSION BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN +
+OFFER TO SELL NOR IS IT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY STATE +
+WHERE THE OFFER OR SALE IS NOT PERMITTED. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED DECEMBER 23, 1998
[Logo of GroupMac
Appears Here]
GROUP MAINTENANCE AMERICA CORP.
SUBORDINATED NOTES
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
PREFERRED STOCK
-----------
We may offer and issue from time to time (1) unsecured subordinated notes
(the "Notes") in one or more series not to exceed $50,000,000 in aggregate
principal amount, (2) 5,341,034 shares of common stock ("Common Stock"), (3)
warrants ("Warrants") to purchase up to 2,000,000 shares of Common Stock
issuable upon exercise of the Warrants and (4) one or more series of Preferred
Stock at aggregate offering prices not to exceed $10 million. Any of the
foregoing securities covered by this prospectus will be issued in connection
with business combination transactions (each, an "Acquisition") involving the
acquisition, directly or indirectly, of businesses or securities or assets of
businesses doing business in our industry. The number of shares of Common
Stock, the terms on which such shares shall be issued and the price and other
terms at which the Notes, Warrants and Preferred Stock will be offered and
issued shall be determined by negotiations between us and representatives of
the businesses to be acquired.
Terms of the Common Stock are set forth herein. Terms of the Notes, Warrants
and Preferred Stock which are common to all Notes, Warrants and Preferred
Stock, respectively, are set forth herein. We will provide specific terms of
these securities in supplements to this prospectus. You should read this
prospectus and any prospectus supplement carefully before you invest in any of
the foregoing securities.
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAVE THESE ORGANIZATIONS
DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 199 .
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus.................................................... 2
Where You Can Find More Information...................................... 3
The Company.............................................................. 3
Risk Factors............................................................. 4
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges and
Preferred Stock Dividends............................................... 4
Description of Notes..................................................... 4
Description of Warrants.................................................. 7
Description of Capital Stock............................................. 9
Plan of Distribution..................................................... 12
Experts.................................................................. 13
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may,
over the next two years, offer and issue any combination of the securities
described in this prospectus in one or more offerings, so long as the aggregate
principal amount of the Notes issued does not exceed $50,000,000, the aggregate
amount of the Preferred Stock issued does not exceed $10 million and the number
of shares of Common Stock issued does not exceed 5,341,034. This prospectus
provides you with a general description of the securities we may offer and
issue. Each time we issue securities, we will provide a prospectus supplement
that will contain specific information about the terms of that issuance. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find More Information."
You should rely only on the information provided or incorporated by reference
in this prospectus and any prospectus supplement. We have not authorized anyone
else to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in or incorporated by reference in this prospectus
or any prospectus supplement is accurate as of any date other than the date on
the front of those documents. Our business, financial condition, results of
operations and prospects may have changed since those dates.
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
Group Maintenance America Corp. files annual, quarterly and other reports,
proxy statements and other information with the SEC. Our current SEC filings
are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York, and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms.
Because our Common Stock is listed on the New York Stock Exchange, our
reports, proxy statements and other information can be reviewed and copied at
the office of that exchange at 20 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), until we sell all of the
securities:
1. Our Transition Report on Form 10-K for the ten month period ended
December 31, 1997;
2. Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
1998, June 30, 1998 and September 30, 1998;
3. Our Current Reports on Form 8-K dated December 21, 1998, November 25,
1998, November 4, 1998, October 28, 1998, September 15, 1998, June 26,
1998, May 22, 1998 and January 29, 1998 and on Form 8-K/A dated December
22, 1998 (two reports were filed on such date and both reports are
incorporated by reference), September 21, 1998 and July 20, 1998 (two
reports were filed on such date and both reports are incorporated by
reference); and
4. Our Registration Statement on Form 8A filed with the SEC on November 4,
1997.
You may request a copy of these filings (in most cases, without exhibits) at
no cost, by writing or telephoning us at our principal executive offices
located at the following address:
Investor Relations
Group Maintenance America Corp.
8 Greenway Plaza, Suite 1500
Houston, Texas 77046
(713) 860-1000
THE COMPANY
Our company is a leading nationwide provider of mechanical and electrical
services. We provide services to commercial/industrial and residential
customers through our operations in 56 cities across 26 states. Since our
inception, we have acquired 63 companies which represent $978.5 million in pro
forma combined 1997 revenues.
We provide our commercial/industrial customers with maintenance, repair and
replacement and installation services for products such as:
. Boilers, chillers, and central plants,
. Process piping, and control systems and
. Data cabling.
We provide our residential customers with maintenance, repair and replacement
and installation services for products such as:
. Central air conditioning systems and furnaces,
. Plumbing fixtures and pipes,
. Water heaters, and
. Water feed and sewer lines.
When we refer to the business of our company, such term means Group
Maintenance America Corp. and its subsidiaries on a combined basis.
3
<PAGE>
RISK FACTORS
Before you invest in our securities, you should carefully consider the risks
involved. We have described the risks associated with an investment in our
company in our reports filed with the SEC, which are incorporated by reference.
We may also discuss other risks in a prospectus supplement.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
Our unaudited ratios of earnings to fixed charges and earnings to fixed
charges and preferred stock dividends for the periods indicated are set forth
below.
<TABLE>
<CAPTION>
FOR THE FOR THE FOR THE YEARS
NINE MONTHS TEN MONTHS ENDED FEBRUARY 28 OR
ENDED ENDED 29,
SEPTEMBER 30, DECEMBER 31, --------------------
1998 1997(1) 1997 1996 1995 1994
------------- ------------ ---- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges(2)................... 6.7x -- 8.6x 8.7x 6.6x 13.5x
Ratio of earnings to fixed
charges and preferred stock
dividends(3)................. 6.7x -- 8.6x 8.7x 6.6x 13.5x
</TABLE>
- --------
(1) In the historical ten months ended December 31, 1997, earnings were
inadequate to cover fixed charges in the amount of $0.8 million due to the
impact of $7.0 million of non-recurring non-cash compensation expense.
(2) The ratio of earnings to fixed charges was computed by dividing earnings by
fixed charges. For this purpose, earnings consist of income from operations
before income taxes and fixed charges. Fixed charges consist of interest
expense, amortized debt expense and the interest portion of rental expense.
(3) No dividends were paid on our preferred stock.
DESCRIPTION OF NOTES
GENERAL
The Notes will be issued in one or more series under an indenture (the
"Indenture") between us and State Street Bank and Trust Company, as Trustee
(the "Trustee"). The following statements with respect to the Notes and the
Indenture are summaries of such instruments and are not complete. THE FORM OF
THE INDENTURE HAS BEEN FILED AS AN EXHIBIT TO THE REGISTRATION STATEMENT AND
YOU ARE URGED TO READ THE INDENTURE BECAUSE IT, AND NOT THIS SUMMARY, DEFINES
YOUR RIGHTS AS A HOLDER OF NOTES. Capitalized terms used in the summary have
the meanings specified in the Indenture. As of November 30, 1998, on a proforma
basis, we and our subsidiaries had outstanding approximately $192 million of
indebtedness that ranks senior to the Notes and approximately $16 million of
indebtedness that ranks pari passu with the Notes.
Unless otherwise indicated in the prospectus supplement related thereto, the
Notes will be issued only in fully registered form, without coupons.
The Notes and the Indenture do not contain financial covenants binding on us
or our subsidiaries, nor do they limit the amount of indebtedness, whether
senior or subordinated, that we or our subsidiaries can incur.
There is no public market for the Notes and none is expected to develop.
Investors should proceed on the assumption that they may have to bear the
economic risk of an investment in such securities for an indefinite period of
time. The Notes by their respective terms will be non-transferable, except upon
our consent or to the spouse or lineal decendents of a holder upon the death of
the holder.
Please refer to the prospectus supplement for the following terms of a series
of Notes:
. The title of the Notes;
4
<PAGE>
. Any limit upon the aggregate principal amount of the Notes;
. The date or dates on which the principal of the Notes is due;
. The rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which the Notes shall
bear interest, if any, the date or dates from which such interest
shall accrue or the method by which such date or dates shall be
determined, the interest payment dates on which such interest shall be
payable and the regular record date for the interest payable on any
interest payment date; and
. Any other terms of the Notes.
SUBORDINATION
The Notes will be our direct, unsecured subordinated obligations. The Notes
will have a junior position to all other indebtedness except for approximately
$16 million aggregate principal amount of notes issued in connection with the
acquisition of Trinity Contractors, Inc. (the "Trinity Notes") that rank pari
passu with the Notes. In this context, "indebtedness" is defined to include all
indebtedness for borrowed money incurred by us and our subsidiaries, secured
creditors, holders of any indebtedness guaranteed by us or our subsidiaries and
any preferred stockholders, as well as certain other obligations, such as
leases, to which we or any of our subsidiaries are a party.
PREPAYMENT RIGHT
We may prepay the principal of the Notes of any series at any time, in whole
or in part, without penalty.
RIGHT OF SET-OFF
Each Note contains a right in our favor to set-off any amounts owed to us
pursuant to the agreement pursuant to which an Acquisition is made against
amounts owed by us to the holder and payee of the Note, including, without
limitation, in connection with (1) post-closing adjustments to the purchase
price, if any, paid by us to the holder and payee pursuant to such purchase
agreement and certain expenses related thereto, (2) at our election,
obligations of the holder and payee under certain circumstances to purchase
uncollected accounts receivables and retainages, and (3) indemnification
obligations of the holder and payee owed to us.
CONSOLIDATION, MERGER OR SALE
The Indenture generally permits a consolidation or merger between us and
another business entity. It also permits the sale by us of our properties and
assets substantially as an entirety. If this happens, the remaining or
acquiring business entity must assume all of our responsibilities and
liabilities with respect to the Indenture, including the payment of all amounts
when due on the Notes and the performance of covenants under the Indenture.
However, we can consolidate or merge with or into another business entity or
sell our property and assets substantially as an entirety only according to the
conditions of the Indenture. The remaining or acquiring business entity will be
substituted for us in the Indenture with the same effect as if it had been the
original party thereto. It will also be substituted for us on the Notes with
the same effect as if it had been the original obligor. If we sell our
properties and assets substantially as an entirety, we shall be released from
all of our obligations and liabilities under the Indenture and the Notes.
PAYMENT AND LIMITED TRANSFER
Principal, interest and any premium on the Notes will be paid at designated
places. Payment will be made by check mailed to the person in whose name the
Notes are registered on days specified in the Notes and reflected in any
prospectus supplement.
In the case of transfer under the limited permitted circumstances described
herein, fully registered Notes may be transferred or exchanged at the office of
the Trustee or at any other office or agency maintained by us for such
purposes, without the payment of any service charge except for any tax or
governmental charge.
5
<PAGE>
EVENTS OF DEFAULT
"Event of Default" with respect to any series of Notes means any one of the
following events which shall have occurred and is continuing:
. Failure to pay the principal amount of any Note when due;
. Failure to pay interest on any Note for 30 days;
. Certain events in bankruptcy, insolvency or reorganization of the
Company; or
. Any other Event of Default included in a specific series of Notes.
If an Event of Default for any series of Notes occurs and continues, the
Trustee or the holders of at least 25% in aggregate principal amount of the
Notes of that series must give written notice to and receive the consent of
holders of the Company's Senior Indebtedness (as defined in the Indenture)
before they may declare principal of the Notes of that series to be due and
payable immediately by providing written notice thereof to the Company. If
declaration of maturity happens, subject to certain conditions, the holders of
a majority of the aggregate principal amount of the Notes of that series can
void the declaration. For information as to waiver of defaults, see
"Modification and Waiver" below.
The Trustee may withhold notice to the holders of Notes of any default
(except in the payment of principal and/or interest) if it considers such
withholding of notice to be in the best interest of the holders.
A default under other indebtedness of the Company is not an Event of Default
under the Indenture or the Notes, and an Event of Default under one series of
Notes will not necessarily be an Event of Default under another series.
MODIFICATION AND WAIVER
Under the Indenture, all of our rights and obligations and the rights of the
holders may be modified with the consent of the holders of a majority in
aggregate principal amount of the outstanding Notes of each series affected by
the modification. No modification of the terms of the payment of principal,
premium if any, or interest on the Notes and no modification reducing the
percentage required for modifications, is effective against any holder without
its consent.
DISCHARGE OF INDENTURE; DEFEASANCE
With certain exceptions, we will be discharged from our obligations under the
Indenture with respect to any series of Notes by either paying or causing to be
paid the principal of, premium, if any, and interest on all of the Notes of
such series outstanding, as and when the same shall become due and payable, or
delivering to the Trustee all outstanding Notes of such series for
cancellation.
In addition, we will be discharged if at any time we defease the Notes by
depositing in escrow or trust with the Trustee sufficient cash and/or
Government Securities to pay the principal of, premium, if any, and interest on
the Notes to the stated maturity date or a redemption date for the Notes of the
series. If that happens, payment of the Notes of such series may not be
accelerated because of an event specified as a default or Event of Default with
respect to the Notes, and the holders of the Notes of the series will not be
entitled to the benefits of the Indenture, except for registration of transfer
and exchange of Notes and replacement of lost, stolen or mutilated Notes.
The Indenture defines "Government Securities" to mean interest bearing
obligations as a result of the deposit of which the Notes are rated in the
highest generic long-term debt rating category assigned to defeased debt by one
or more nationally recognized rating agencies.
6
<PAGE>
The terms of the Indenture restrict our ability to defease the Notes of a
series without assurance that such event will not result in a holder being
required to recognize gain or loss for federal income purposes equal to the
difference between the holder's cost or other basis for the Notes and the value
of the holder's interest in the escrow or trust. As with many tax matters,
there can be no assurance that such will be the case, and prospective investors
are urged to consult their tax advisers as to the consequences of a defeasance,
including the applicability and effect of tax laws other than federal income
tax law.
CONCERNING THE TRUSTEE
State Street Bank and Trust Company is the Trustee under the Indenture. The
corporate trust office of the Trustee is located at 225 Franklin Street,
Boston, Massachusetts 02110.
Other than its duties in case of a default, the Trustee is not obligated to
exercise any of its rights or powers under the Indenture at the request, order
or direction of any holder, unless the holders offer the Trustee reasonable
indemnity. If they provide this reasonable indemnification, the holders of a
majority in principal amount of any series of Notes may direct the time, method
and place of conducting any proceeding or the remedy available to the Trustee,
or exercise any power conferred upon the Trustee for any series of Notes.
The Indenture provides that if an Event of Default occurs (and it is not
cured), the Trustee will be required, in the exercise of its power, to use the
degree of care of a prudent person in the conduct of such person's own affairs.
Subject to such provisions, the Trustee will be under no obligation to exercise
any of its rights or powers under the Indenture at the request of any holder of
securities issued under the Indenture, unless such holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense, and then only to the extent required by the terms of the
Indenture. The Trustee may resign from its duties with respect to the Indenture
at any time or may be removed by us. If the Trustee resigns, is removed or
becomes incapable of acting as Trustee or a vacancy occurs in the office of the
Trustee for any reason, a successor Trustee shall be appointed in accordance
with the provisions of the Indenture.
The Indenture contains the provisions required by the Trust Indenture Act of
1939 with reference to the disqualification of the Trustee if it shall have or
acquire any "conflicting interest," as therein defined. The Indenture also
contains certain limitations on the right of the Trustee, as a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received by it in respect of any such claims, as security or
otherwise.
DESCRIPTION OF WARRANTS
The following statements with respect to the Warrants are summaries of, and
subject to, the detailed provisions of a warrant agreement ("Warrant
Agreement") to be entered into by us and the person receiving the Warrants, and
having the terms described in the prospectus supplement relating thereto.
GENERAL
The Warrants, evidenced by warrant certificates (the "Warrant Certificates"),
may be issued under the Warrant Agreement independently or together with any
Notes or Common Stock and may be attached to or separate from such Notes or
Common Stock. There is no public market for the Warrants and none is expected
to develop. Investors should proceed on the assumption that they may have to
bear the economic risk of an investment in such securities for an indefinite
period of time. The Warrants by their respective terms will be non-
transferable, except upon our consent or death of the holder.
If Warrants are offered, the prospectus supplement will describe the terms of
the Warrants, including the following:
. the offering price, if any;
. the number of shares of Common Stock purchasable upon exercise of one
Warrant and the initial price at which such shares may be purchased
upon exercise;
7
<PAGE>
. the date on which the right to exercise the Warrants shall commence and
the date on which such right shall expire;
. resale restrictions on the Common Stock into which the Warrants are
exercisable;
. call provisions; and
. any other terms of the Warrants.
The shares of Common Stock issuable upon exercise of the Warrants will, when
issued in accordance with the Warrant Agreement, be fully paid and
nonassessable.
EXERCISE OF WARRANTS
Warrants may be exercised by delivering to us a notice, which may be in the
form of the Subscription Form found at the end of the Warrant Certificate,
signed by the warrant holder, or such holder's duly authorized agent,
indicating the warrant holder's election to exercise all or a portion of the
Warrants evidenced by the surrendered Warrant Certificate. Such notice shall be
accompanied by the surrendered Warrant Certificate and payment of the aggregate
exercise price of the Warrants to be exercised, which payment may be made in
the form of cash or a cashier's check equal to the exercise price. Within 10
business days after the effectiveness of such exercise, we will deliver or
cause to be delivered to the exercising warrant holder a certificate
representing the number of shares of Common Stock purchased, together with cash
in lieu of any fraction of a share. If fewer than all of the Warrants evidenced
by any certificate are exercised, we will deliver to the exercising warrant
holder a new Warrant Certificate representing the unexercised Warrants, or at
the discretion of the Company, appropriate notation may be made on the Warrant
and the same returned to the warrant holder.
ANTIDILUTION PROVISIONS
The exercise price payable and the number of shares of Common Stock
purchasable upon the exercise of each Warrant will be subject to adjustment in
certain events, including the issuance of a stock dividend to holders of Common
Stock or a combination, subdivision or reclassification of Common Stock. In
lieu of adjusting the number of shares of Common Stock purchasable upon
exercise of each Warrant, we may elect to adjust the number of Warrants. No
adjustment in the number of shares purchasable upon exercise of the Warrants
will be required until cumulative adjustments require an adjustment of at least
1% thereof. We may, at our option, reduce the exercise price at any time. No
fractional shares will be issued upon exercise of Warrants, but we will pay the
cash value of any fractional shares otherwise issuable. Notwithstanding the
foregoing, in case of any consolidation, merger or sale or conveyance of our
property as an entirety or substantially as an entirety, the holder of each
outstanding Warrant upon exercise thereof shall have the right to the kind and
amount of shares of stock and other securities and property (including cash)
receivable by a holder of the number of shares of Common Stock for which such
Warrant was exercisable immediately prior thereto.
NO RIGHTS AS SHAREHOLDERS
Holders of Warrants will not be entitled, by virtue of being such holders, to
vote, to consent, to receive dividends, to receive notice as shareholders with
respect to any meeting of shareholders for the election of directors of the
Company or any other matter or to exercise any rights whatsoever as
shareholders of the Company.
8
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DESCRIPTION OF CAPITAL STOCK
GENERAL
Under our Articles of Incorporation, as amended (the "Articles"), we have
authority to issue 150,000,000 shares of capital stock, consisting of
50,000,000 shares of Preferred Stock, par value $0.001 per share, and
100,000,000 shares of Common Stock, par value $0.001 per share. As of
November 30, 1998, we had outstanding 33,151,963 shares of Common Stock and no
shares of Preferred Stock.
The following summary description of the material features of our capital
stock is intended as a summary only and is qualified in its entirety by
reference to the Articles, a copy of which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
PREFERRED STOCK
The Articles authorize the issuance of Preferred Stock in one or more series
having designations, rights and preferences determined from time to time by the
Board of Directors. Accordingly, the Board of Directors is empowered, without
approval of holders of Common Stock, to issue Preferred Stock with dividends,
liquidation, conversion, voting or other rights that could adversely affect the
voting power or other rights of the holders of the Common Stock. In the event
of issuance, the Preferred Stock could be used, under certain circumstances, as
a method of discouraging, delaying or preventing a change in control of the
Company. Although we have no present intention to issue any additional shares
of Preferred Stock, there can be no assurance that we will not do so in the
future.
The particular terms of any series of Preferred Stock offered by us will be
set forth in a prospectus supplement. The Company's Board of Directors or its
designee will fix or designate, in a Statement of Designation that will be
filed as part of our Articles of Incorporation, the rights, preferences,
privileges and restrictions of that series of Preferred Stock we offer,
including:
.dividend rights,
.voting rights,
.terms of redemption, and
.liquidation preferences.
The description of our Preferred Stock contained in this prospectus and any
description that will be contained in a prospectus supplement do not purport to
be complete descriptions and are qualified by reference to the Statement of
Designation relating to that series of Preferred Stock.
COMMON STOCK
Voting Rights. Holders of Common Stock are entitled to one vote for each
share on all matters on which shareholders generally are entitled to vote,
including elections of directors. The Board of Directors is classified into
three classes of five directors, with the term of each class expiring on a
staggered basis. The classification of the Board of Directors may make it more
difficult to change the composition of the Board of Directors and thereby may
discourage or make more difficult an attempt by a person or group to obtain
control of the Company. The Articles do not provide for cumulative voting for
the election of directors.
Dividends. Subject to the preferential rights of any outstanding Preferred
Stock that may be created by the Board of Directors under the Articles,
dividends may be paid to holders of Common Stock when, as and if declared by
the Board of Directors out of funds legally available for such purpose. The
declaration and payment of dividends on Common Stock could be restricted by the
terms of any Preferred Stock issued. Under
9
<PAGE>
the Texas Business Corporation Act ("TBCA"), dividends may be paid by us out of
"surplus" (as defined under Article 1.02 of the TBCA) or, if there is no
surplus, out of net profits for the fiscal year in which the dividends are
declared and/or the preceding fiscal year. However, the Company does not intend
to pay dividends at the present time.
Liquidation. In the event of the dissolution or winding up of the Company,
after payment or provision for payment of our debts and other liabilities and
any other series or class of our stock hereafter issued that ranks senior as to
liquidation rights to the Common Stock, the holders of Common Stock will be
entitled to receive pro rata all our remaining assets available to such
holders.
Miscellaneous. Holders of Common Stock have no preemptive, subscription,
redemption or conversion rights.
The Common Stock is listed on the New York Stock Exchange under the symbol
"MAK."
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C.
STATUTORY BUSINESS COMBINATION PROVISION
We are subject to Article 13 of the TBCA ("Article 13") which, with certain
exceptions, prohibits a Texas corporation from engaging in a "business
combination" (as defined in Article 13) with any shareholder who is a
beneficial owner of 20% or more of the corporation's outstanding stock for a
period of three years after such shareholder's acquisition of a 20% ownership,
unless: (i) the board of directors of the corporation approves the transaction
or the shareholder's acquisition of shares prior to the acquisition or (ii)
two-thirds of the unaffiliated shareholders of the corporation approve the
transaction at a shareholders' meeting. Shares that are issuable, but have not
yet been issued, pursuant to options, conversion or exchange rights or other
agreements are not considered outstanding for purposes of Article 13.
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
The Articles contain a "fair price" provision which generally requires that
certain mergers, business combinations and similar transactions constituting a
"Business Combination" with an "Interested Shareholder" (generally the
beneficial owner of at least 10 percent of the Company's voting stock) be
approved by the holders of at least 80 percent of the Company's voting stock,
unless (i) the transaction is approved by at least 80 percent of the
"Continuing Directors" of the Company, who constitute a majority of the entire
board or (ii) certain "fair price" and procedural requirements are satisfied.
The Articles define "Business Combination" as
. any merger or consolidation involving the Company or a subsidiary of
the Company,
. any sale, lease, exchange, transfer or other disposition (in one
transaction or a series of transactions), including without limitation
a mortgage or any other security device, of all or any substantial
part of the assets either of the Company or of a subsidiary of the
Company to or with any Interested Shareholder,
. the issuance, sale, exchange, transfer or other disposition by the
Company or a subsidiary of the Company of any securities of the
Company or any subsidiary of the Company to or with any Interested
Shareholder,
. any recapitalization or reclassification of the Company's securities
(including without limitation, any reverse stock split) or other
transaction that would have the effect of increasing the voting power
of an Interested Shareholder,
. any liquidation, spinoff, splitoff, splitup or dissolution of the
Company proposed by or on behalf of any Interested Shareholder, and
. any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
10
<PAGE>
"Continuing Director" is defined to mean a director who either was a member
of the Board of Directors of the Company prior to the time such Interested
Shareholder became an Interested Shareholder or who subsequently became a
director of the Company and whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least 80 percent of the
Continuing Directors then on the Board of Directors, either by a specific vote
or by approval of the proxy statement issued by the Company on behalf of the
Board of Directors in which such person is named as nominee for director,
without an objection to such nomination; provided, however, that in no event
shall a director be considered a "Continuing Director" if such director is an
Interested Shareholder and the Business Combination to be voted upon is with
such Interested Shareholder or is one in which such Interested Shareholder
otherwise has an interest (except proportionately as a shareholder of the
Company).
In accordance with our Bylaws, a shareholder of the Company may nominate
persons for election to the Board of the Company if the shareholder submits
such nomination, together with certain related information required by our
Bylaws, in writing to the Secretary of the Company not less than 120 days nor
more than 150 days prior to the anniversary date of the mailing of our proxy
statement for the previous annual meeting of shareholders.
11
<PAGE>
PLAN OF DISTRIBUTION
This prospectus covers the offer and sale of up to $50,000,000 of Notes,
5,341,034 shares of Common Stock, Warrants to purchase up to 2,000,000 shares
of Common Stock, Common Stock issuable upon exercise of the Warrants and up to
$10 million of Preferred Stock. Such securities will be issued from time to
time in connection with future direct and indirect acquisitions of other
businesses, properties or securities in business combination transactions.
We expect that the number of shares of Common Stock, the terms on which such
shares shall be issued and the price and other terms at which the Notes,
Warrants and Preferred Stock covered hereby will be offered and issued shall be
determined by direct negotiations with the owners or controlling persons of the
businesses or assets to be acquired. We also expect that the shares of Common
Stock issued will be valued at prices reasonably related to market prices
prevailing either at the time an acquisition agreement is executed or at or
about the time of delivery of shares.
12
<PAGE>
EXPERTS
The historical financial statements of Group Maintenance America Corp.
(GroupMAC), Group Maintenance America Corp. and Subsidiaries, K&N Plumbing,
Heating and Air Conditioning, Inc., A-ABC Appliance, Inc. and A-1 Appliance &
Air Conditioning, Inc., Arkansas Mechanical Services, Inc. and Mechanical
Services, Inc., Callahan Roach Products and Publications, Inc., Central
Carolina Air Conditioning Company, Hallmark Air Conditioning, Inc. and
Subsidiary, Sibley Services, Incorporated, Southeast Mechanical Service, Inc.,
Willis Refrigeration, Air Conditioning & Heating, Inc., Yale, Incorporated,
Hungerford Mechanical Corporation, Mechanical Interiors, Inc., Premex, Inc. and
Subsidiary, Barr Electric Corp., Atlantic Industrial Constructors, Inc., Clark
Converse Electric Service, Inc., HPS Plumbing Services, Inc., Ray & Claude
Goodwin, Inc., Reliable Mechanical, Inc., Romanoff Electric Corp., Continental
Electrical Construction Co. and Trinity Contractors, Inc. and Trinity Air
Technologies, L.P., to the extent and for the periods indicated in their
reports, have been incorporated by reference herein and in the registration
statement in reliance upon the reports of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The financial statements of Masters, Inc., as of December 31, 1995, December
31, 1996 and June 30, 1997 and for each of the three years in the period ended
December 31, 1996 and for the six-month period ended June 30, 1997,
incorporated in this prospectus, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report which is incorporated by
reference and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
The financial statements of MacDonald-Miller Industries, Inc. incorporated by
reference in this prospectus, to the extent and for the periods indicated in
their reports, have been audited by Moss Adams LLP, independent public
accountants, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02A of the TBCA provides, in relevant part, as follows:
Subject to the provisions of Sections B and C of this Article, each
corporation shall have power:
(16) to indemnify directors, officers, employees, and agents of the
corporation and to purchase and maintain liability insurance for those
persons.
Article IX of the Articles of Incorporation of the Company (therein referred
to as the "Corporation") provides as follows:
1. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative, any appeal in such
action, suit or proceeding, and any inquiry or investigation that would
lead to such action, suit or proceeding (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the
legal representative, is or was a director or officer of the Corporation or
is or was serving at the request of the Corporation as a director or
officer of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to any employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any
other capacity while serving as a director or officer, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by
the TBCA, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto), against all judgments, fines, penalties (including excise tax and
similar taxes), settlements, and reasonable expenses actually incurred by
such indemnitee in connection therewith. The right to indemnification
conferred in this Article shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the TBCA requires, an advancement
of expenses incurred by an indemnitee shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such indemnitee, to
repay all amounts so advanced if it shall ultimately be determined that
such indemnitee is not entitled to be indemnified for such expenses under
this Article or otherwise.
2. Insurance. The Corporation may purchase and maintain insurance, at its
expense, on behalf of any indemnitee against any liability asserted against
him and incurred by him in such a capacity or arising out of his status as
a representative of the Corporation, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or
loss under the TBCA.
3. Indemnity of Employees and Agents of the Corporation. The Corporation
may, to the extent authorized from time to time by the board of directors,
grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation to the fullest extent of the
provisions of this Article or as otherwise permitted under the TBCA with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
The Company has entered into employment agreements with its executive
officers pursuant to which the Company generally is obligated to indemnify such
officers to the full extent permitted by the TBCA as described above.
The Company has purchased liability insurance policies covering the directors
and officers of the Company, including, to provide protection where the Company
cannot legally indemnify a director or officer and where a claim arises under
the Employee Retirement Income Security Act of 1974 against a director or
officer based on an alleged breach of fiduciary duty or other wrongful act.
II-1
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
3.1* Articles of Incorporation of the Company, as amended.
3.2** Bylaws of the Company, as amended.
4.1* Form of Certificate representing the Common Stock, par value $0.001
per share, of the Company.
4.2** Form of Indenture dated as of December , 1998 between the Company
and State Street Bank and Trust Company, as Trustee, including the
form of Note.
5** Opinion of Bracewell & Patterson, L.L.P. as to the legality of the
Common Stock being offered.
12** Calculation of Earnings to Fixed Charges and Earnings to Fixed Charges
and Preferred Stock Dividends.
21** Subsidiaries of the Company.
23.1** Consent of Bracewell & Patterson, L.L.P. (included in its opinion
filed as Exhibit 5 hereto).
23.2** Consent of KPMG Peat Marwick LLP.
23.3** Consent of Deloitte & Touche LLP.
23.4** Consent of Moss Adams LLP.
24** Powers of attorney.
25** Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company.
27*** Financial Data Schedule.
</TABLE>
- --------
* FILED AS AN EXHIBIT TO THE COMPANY'S FORM S-1 (REGISTRATION NO. 333-34067).
** FILED HEREWITH.
*** FILED AS AN EXHIBIT TO THE COMPANY'S FORM 10-Q DATED NOVEMBER 16, 1998
UNDER EXHIBIT NUMBER 27 AND INCORPORATED BY THIS REFERENCE.
II-2
<PAGE>
(b) Financial Statement Schedules
No financial statement schedules are included herein. All other schedules for
which provision is made in the applicable accounting regulations of the
Commission are not required under the related instructions, are inapplicable,
or the information is included in the consolidated financial statements, and
have therefore been omitted.
(c) Reports, Opinions, and Appraisals
The following reports, opinions and appraisals are included herein.
None.
ITEM 22. UNDERTAKINGS.
(a) Regulation S-K, Item 512 Undertakings
(1) The undersigned registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(c) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(ii) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(iii) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(2) Registration on Form S-4 of Securities Offered for Resale.
(i) The undersigned hereby undertakes as follows: That prior to any
public reoffering of the securities registered hereunder through the
use of a prospectus which is a part of this registration statement, by
any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by person who may be
deemed underwriters, in addition to the information called for by the
other Items of the applicable form.
(ii) The registrant undertakes that every prospectus (a) that is
filed pursuant to the paragraph immediately preceding, or (b) that
purports to meet the requirements of section 10(a)(3) of the Act and is
used in connection with an offering of securities subject to Rule 415,
will be filed as a part of an amendment to the registration statement
and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities
II-3
<PAGE>
offered therein, and the offering of new securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the Company
of expenses incurred or paid by a director, officer or controlling person
of the Company in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
(b) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4 of this Form, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding to
the request.
(c) The undersigned hereby undertakes to supply by means of a supplement or a
post-effective amendment all information concerning a transaction, and the
company being acquired therein, that was not the subject of and included in the
registration statement when it became effective.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Group Maintenance
America Corp. has duly caused this Registration Statement or amendment thereto
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Houston, State of Texas, on December 22, 1998.
GROUP MAINTENANCE AMERICA CORP.
By: /s/ J. Patrick Millinor, Jr.
----------------------------------
J. Patrick Millinor, Jr.
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT OR AMENDMENT THERETO HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS
IN THE INDICATED CAPACITIES ON DECEMBER 22, 1998.
<TABLE>
<S> <C>
SIGNATURE TITLE
James P. Norris* Chairman of the Board;
------------------------------------- Director
James P. Norris
/s/ J. Patrick Millinor, Jr. Director and Chief Executive
------------------------------------- Officer (principal executive
J. Patrick Millinor, Jr. officer)
/s/ Darren B. Miller Executive Vice President--
------------------------------------- Chief Financial Officer
Darren B. Miller (principal financial officer)
/s/ Daniel W. Kipp Senior Vice President and
------------------------------------- Corporate Controller
Daniel W. Kipp (principal accounting
officer)
Donald L. Luke* Director, President and Chief
------------------------------------- Operating Officer
Donald L. Luke
Ronald D. Bryant* Director
-------------------------------------
Ronald D. Bryant
David L. Henninger* Director
-------------------------------------
David L. Henninger
Chester J. Jachimiec* Director
-------------------------------------
Chester J. Jachimiec
Timothy Johnston* Director
-------------------------------------
Timothy Johnston
Andrew Jeffrey Kelly* Director
-------------------------------------
Andrew Jeffrey Kelly
Thomas B. McDade* Director
-------------------------------------
Thomas B. McDade
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C>
SIGNATURE TITLE
Lucian Morrison* Director
-------------------------------------
Lucian Morrison
Robert Munson III* Director
-------------------------------------
Robert Munson III
Fredric Sigmund* Director
-------------------------------------
Fredric Sigmund
John M. Sullivan* Director
-------------------------------------
John M. Sullivan
James D. Weaver* Director
-------------------------------------
James D. Weaver
</TABLE>
/s/ Randolph W. Bryant
*By: ________________________________
Randolph W. Bryant
(Attorney-in-fact for persons
indicated)
II-6
<PAGE>
BYLAWS
OF
GROUP MAINTENANCE AMERICA CORP.
As amended November 19, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. Offices.................................................. 1
Section 1.1 Principal Office....................................... 1
Section 1.2 Registered Office...................................... 1
Section 1.3 Other Offices.......................................... 1
ARTICLE 2. Shareholders Meetings.................................... 1
Section 2.1 Annual Meeting......................................... 1
Section 2.2 Special Meetings....................................... 1
Section 2.3 Notices of Meetings and Adjourned Meetings............. 2
Section 2.4 Notice of Shareholder Business and Nominations......... 2
Section 2.5 Voting Lists........................................... 5
Section 2.6 Quorum................................................. 5
Section 2.7 Chairman of Shareholder Meetings....................... 5
Section 2.8 Voting................................................. 5
Section 2.9 Voting of Shares by Certain Holders.................... 6
Section 2.10 Closing of Transfer Records or Fixing of Record Date... 6
Section 2.11 Action by Written Consent.............................. 8
Section 2.12 Authorization of Proxies............................... 8
Section 2.13 Inspectors and Voting Procedures....................... 8
ARTICLE 3. Directors................................................ 9
Section 3.1 Management............................................. 9
Section 3.2 Number and Term........................................ 9
Section 3.3 Quorum and Manner of Action............................ 9
Section 3.4 Vacancies.............................................. 9
Section 3.5 Resignations........................................... 10
Section 3.6 Removals............................................... 10
Section 3.7 Annual Meetings........................................ 10
Section 3.8 Regular Meetings....................................... 10
Section 3.9 Special Meetings....................................... 10
Section 3.10 Organization of Meetings............................... 11
Section 3.11 Place of Meetings...................................... 11
Section 3.12 Compensation of Directors.............................. 11
Section 3.13 Action by Unanimous Written Consent.................... 11
Section 3.14 Participation in Meetings by Telephone................. 11
Section 3.15 Nominations for Director............................... 12
ARTICLE 4. Committees of the Board................................ 12
Section 4.1 Membership and Authorities............................. 12
Section 4.2 Minutes................................................ 12
Section 4.3 Vacancies.............................................. 12
Section 4.4 Telephone Meetings..................................... 13
<PAGE>
Section 4.5 Action Without Meeting................................. 13
ARTICLE 5. Officers................................................. 13
Section 5.1 Number and Title....................................... 13
Section 5.2 Term of Office; Vacancies.............................. 13
Section 5.3 Removal of Elected officers............................ 14
Section 5.4 Resignations........................................... 14
Section 5.5 The Chairman of the Board.............................. 14
Section 5.6 Chief Executive Officer................................ 14
Section 5.7 President.............................................. 14
Section 5.8 Vice Presidents........................................ 15
Section 5.9 Secretary.............................................. 15
Section 5.10 Assistant Secretaries.................................. 15
Section 5.11 Treasurer or Chief Financial Officer................... 15
Section 5.12 Assistant Treasurers................................... 16
Section 5.13 Subordinate Officers................................... 16
Section 5.14 Salaries and Compensation.............................. 16
ARTICLE 6. Indemnification.......................................... 16
ARTICLE 7. Capital Stock............................................ 17
Section 7.1 Certificates of Stock.................................. 17
Section 7.2 Lost Certificates...................................... 18
Section 7.3. Dividends.............................................. 18
Section 7.4. Registered Shareholders................................ 18
Section 7.5. Transfer of Stock...................................... 19
ARTICLE 8. Miscellaneous Provisions................................. 19
Section 8.1. Corporate Seal......................................... 19
Section 8.3. Checks, Drafts, Notes.................................. 19
Section 8.4. Notice and Waiver of Notice............................ 18
Section 8.5. Examination of Books and Records....................... 20
Section 8.6. Voting Upon Shares Held by the Corporation............. 20
ARTICLE 9. Amendments............................................... 20
<PAGE>
BYLAWS
OF
GROUP MAINTENANCE AMERICA CORP.
ARTICLE 1.
OFFICES
Section 1.1 Principal Office.
The principal office of the Corporation shall be in the City of Houston,
Texas.
Section 1.2 Registered Office.
The registered office of the Corporation required to be maintained in the
State of Texas by the Texas Business Corporation Act (the "TBCA") may be, but
need not be, identical with the Corporation's principal office, and the address
of the registered office may be changed from time to time by the Board of
Directors.
Section 1.3 Other Offices.
The Corporation may also have offices at such other places both within and
without the State of Texas as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE 2.
SHAREHOLDERS MEETINGS
Section 2.1 Annual Meeting.
The annual meeting of the holders of shares of each class or series of
stock as are entitled to notice thereof and to vote at such meeting pursuant to
applicable law and the Corporation's Articles of Incorporation for the purpose
of electing directors and transacting such other proper business as may come
before it shall be held in each year, at such time, on such day and at such
place, within or without the State of Texas, as may be designated by the Board
of Directors.
1
<PAGE>
Section 2.2 Special Meetings.
In addition to such special meetings as are provided by law or the
Corporation's Articles of Incorporation, special meetings of the holders of any
class or series or of all classes or series of the Corporation's stock for any
purpose or purposes, may be called at any time by (i) the Chairman of the Board,
the Chief Executive Officer, the President or the Board of Directors or (ii) the
holders of at least 50% of all the shares entitled to vote at such special
meeting and may be held on such day, at such time and at such place, within or
without the State of Texas, as shall be designated by the person or persons
calling such meeting.
Section 2.3 Notices of Meetings and Adjourned Meetings.
Except as otherwise provided by law or by the Corporation's Articles of
Incorporation, written or printed notice of any meeting of Shareholders (i)
shall be given either by personal delivery or by mail to each Shareholder of
record entitled to vote at such meeting, (ii) shall be in such form as approved
by the Board of Directors, and (iii) shall state the date, place and hour of the
meeting, and, in the case of a special meeting, the purpose for which the
meeting is called. Unless otherwise provided by law or by the Corporation's
Articles of Incorporation, such written notice shall be given not less than ten
nor more than 60 days before the date of the meeting. Except when a Shareholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened, presence in person or by proxy of a Shareholder
shall constitute a waiver of notice of such meeting. Further, a written waiver
of any notice required by law or by these Bylaws, signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Except as otherwise provided by law or by the
Corporation's Articles of Incorporation, the business that may be transacted at
any special meeting of the Shareholders shall be limited to and consist of the
purpose or purposes stated in such notice. If a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each Shareholder of record entitled
to vote at the meeting.
Section 2.4 Notice of Shareholder Business and Nominations.
(a) Annual Meetings of Shareholders.
(1) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the Shareholders may be made
at an annual meeting of Shareholders (A) pursuant to the Corporation's
notice of meeting, (B) by or at the direction of the Board of Directors,
(C) by any nominating committee or person appointed by the Board or (D) by
any Shareholder who was a Shareholder of record at the time of giving of
notice provided for in this Section, who is entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section.
(2) For nominations or other business to be properly brought before an
annual meeting by a Shareholder pursuant to Section 2.4(a)(1)(D), the
Shareholder must have given
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timely notice thereof in writing to the Secretary of the Corporation and
such other business must otherwise be a proper matter for Shareholder
action. To be timely, a Shareholder's notice shall be delivered to the
Secretary at the principal office of the Corporation not later than the
close of business on the 120th day nor earlier than the close of business
on the 150th day prior to the first anniversary of the mailing date of the
preceding year's proxy statement (the "Mailing Date"); provided, however,
that in the event that the Mailing Date is more than 30 days before or more
than 60 days after the anniversary of the prior year's Mailing Date, notice
by the Shareholder to be timely must be so delivered not earlier than the
close of business on the 90th day prior to such Mailing Date and not later
than the close of business on the later of the 60th day prior to such
Mailing Date or the tenth day following the day on which public
announcement of the date of the Corporation's annual meeting is first made
by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving
of a Shareholder's notice as described above. Such Shareholder's notice
shall set forth:
(A) as to each person whom the Shareholder proposes to nominate
for election or reelection as a Director all information relating to
such person that is required to be disclosed in solicitations of
proxies for election of Directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
Rule 14a-11 thereunder (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a
Director if elected);
(B) as to any other business that the Shareholder proposes to
bring before the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of
such Shareholder and the beneficial owner, if any, on whose behalf the
proposal is made; and
(C) whose behalf the nomination or proposal is made (i) the name
and address of such Shareholder, as they appear on the Corporation's
books, and of such beneficial owner, (ii) the class and number of
shares of the Corporation which are owned beneficially and of record
by such Shareholder and such beneficial owner, and (iii) whether the
proponent intends (or is part of a group which intends) to solicit
proxies from other Shareholders in support of such nomination or
proposal.
(3) Notwithstanding anything in the second sentence of Section
2.4(a)(2) to the contrary, in the event that the number of Directors to be
elected to the Board of Directors is increased and there is no public
announcement by the Corporation naming all of the nominees for Director or
specifying the size of the increased Board of Directors at least 70 days
prior to the first anniversary of the preceding year's annual meeting, a
Shareholder's notice required by this Section shall also be considered
timely, but only with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of
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business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Shareholders.
Only such business shall be conducted at a special meeting of Shareholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of Shareholders at which Directors
are to be elected pursuant to such notice of meeting (a) by or at the direction
of the Board of Directors or (b) provided that the Board of Directors has
determined that Directors shall be elected at such meeting, by any Shareholder
who is a Shareholder of record at the time of giving of notice provided for in
this Bylaw, who shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this Bylaw. In the event the Corporation
calls a special meeting of Shareholders for the purpose of electing one or more
Directors to the Board of Directors, any such Shareholder may nominate a person
or persons (as the case may be), for election to such position(s) as specified
in the Corporation's notice of meeting, if the Shareholder's notice required by
Section 2(a)(2) shall be delivered to the Secretary at the principal office of
the Corporation not earlier than the close of business on the 90th day prior to
such special meeting and not later than the close of business on the later of
the 60th day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a Shareholder's
notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.4 shall be eligible to serve as
Directors and only such business shall be conducted at a meeting of
Shareholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 2.4. Except as otherwise
provided by applicable law, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made or proposed, as the case may be,
in accordance with the procedures set forth in this Section 2.4 and, if any
proposed nomination or business is not in compliance with this Section 2.4,
to declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 2.4, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.4, a
Shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.4. Nothing in this Section 2.4 shall
be deemed to affect any rights (i) of Shareholders to request inclusion
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of proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act; or (ii) of the holders of any series of preferred
stock to elect Directors under specified circumstances.
Section 2.5 Voting Lists.
The officer or agent having charge of the share transfer books for shares
of the Corporation shall make, at least ten days before each meeting of
Shareholders, a complete list of Shareholders entitled to vote at meetings or
any adjournments thereof, arranged in alphabetical order, with the address of
and the number of shares held by each, in accordance with applicable law and
shall make same available prior to and during each Shareholders' meeting for
inspection by the Corporation's Shareholders as required by law. The
Corporation's original share transfer books shall be prima facie evidence as to
who are the Shareholders entitled to examine such list or transfer books or to
vote at any meeting of Shareholders.
Section 2.6 Quorum.
Except as otherwise provided by law or by the Corporation's Articles of
Incorporation, the holders of a majority of the Corporation's shares entitled to
vote at a meeting, represented at the meeting in person or represented by proxy,
without regard to class or series, shall constitute a quorum at all meetings of
the Shareholders for the transaction of business. If, however, such quorum
shall not be present or represented at any meeting of the Shareholders, the
holders of a majority of the shares represented in person or by proxy at that
meeting may adjourn any meeting from time to time without notice other than
announcement at the meeting, except as otherwise required by these Bylaws, until
such time and to such place as may be determined by a vote of the holders of a
majority of the shares represented in person or by proxy at that meeting. At
any such adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the meeting
as originally called.
Section 2.7 Chairman of Shareholder Meetings.
Each annual and special meeting of Shareholders shall be presided over by a
Chairman, who shall have the exclusive authority to, among other things,
determine (a) whether business and nominations have been properly brought before
such meetings, (b) the order in which business and nominations properly brought
before such meeting shall be considered and (c) the adjournment of meetings,
whether or not a quorum is present. The Chairman of each annual and special
meeting shall be the Chairman of the Board of Directors or such person as shall
be appointed by the Board of Directors. The Secretary, or, in his absence, any
Assistant Secretary or any person appointed by the individual presiding over the
meeting, shall act as Secretary at meetings of the Shareholders.
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Section 2.8 Voting.
Each Shareholder of record, as determined pursuant to Section 2.10, who is
entitled to vote in accordance with the terms of the Corporation's Articles of
Incorporation and in accordance with the provisions of these Bylaws, shall be
entitled to one vote, in person or by proxy, for each share of stock registered
in his name on the books of the Corporation. Every Shareholder entitled to vote
at any Shareholders' meeting may authorize another person or persons to act for
him by proxy executed in writing pursuant to Section 2.12, provided that no
proxy shall be valid after 11 months from the date of its execution, unless the
proxy provides for a longer period. A duly executed proxy shall be revocable
unless the proxy form conspicuously states that the proxy is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A Shareholder's attendance at any meeting shall not have
the effect of revoking a previously granted proxy unless such Shareholder shall
in writing so notify the Secretary of the meeting prior to the voting of the
proxy. Unless otherwise provided by law, no vote on the election of directors
or any question brought before the meeting need be by ballot unless the chairman
of the meeting shall determine that it shall be by ballot or the holders of a
majority of the shares of stock present in person or by proxy and entitled to
participate in such vote shall so demand. In a vote by ballot, each ballot
shall state the number of shares voted and the name of the Shareholder or proxy
voting. Except as otherwise provided by law, by the Corporation's Articles of
Incorporation or these Bylaws, all elections of directors shall be elected by a
plurality of votes cast by the holders of shares entitled to vote in the
election of directors at a meeting of Shareholders at which a quorum is present.
Except as otherwise provided by law or the Corporation's Articles of
Incorporation, all other matters before the Shareholders shall be decided by the
vote of the holders of a majority of the shares entitled to vote on that matter
and represented in person or by proxy at a meeting of Shareholders at which a
quorum is present. In the election of directors, votes may not be cumulated.
Section 2.9 Voting of Shares by Certain Holders.
Shares standing in the name of another corporation may be voted by an
officer, agent or proxy as designated in the bylaws of such corporation, or in
the absence of such designation, as the board of directors of such corporation
may determine. Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a trustee
may be voted by him, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him without transfer of such shares into his
name. Shares standing in the name of a receiver may be voted by such receiver
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer into his name if authority to do so be contained
in an appropriate order of the Court by which such receiver was appointed. A
Shareholder whose shares are pledged shall be entitled to vote such shares until
the shares have been transferred into the name of the pledgee, and thereafter
the pledgee shall be entitled to vote the shares so transferred. Shares
standing in the name of the Corporation or held by it in a fiduciary capacity
shall not be voted, directly or indirectly, at any meeting, and shall not be
counted in determining the total number of outstanding shares at any given time.
Section 2.10 Closing of Transfer Records or Fixing of Record Date.
(a) Fixing Record Dates for Matters Other than Consents to Action.
The Board of Directors of the Corporation may provide that the stock
transfer books be closed for a
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stated period not to exceed 60 days for the purpose of determining
Shareholders entitled to notice of or to vote at any meeting of
Shareholders or any adjournment thereof, or Shareholders entitled to
receive payment of any distribution or share dividend, or in order to make
a determination of Shareholders for any other proper purpose (other than a
distribution involving a purchase or redemption by the Corporation of any
of its own shares). If the share transfer records are closed as set forth
in this Section, the records shall be closed for at least ten days
immediately preceding the meeting. In lieu of closing the share transfer
records, the Board of Directors may fix in advance a date as the record
date for any such determination of Shareholders, the date to be not more
than 60 days, and in case of a meeting of Shareholders not less than ten
days, prior to the date on which the particular action requiring
determination of Shareholders is to be taken. If the share transfer records
are not closed and no record date is fixed for determination of
Shareholders entitled to notice of or to vote at a meeting of Shareholders,
or Shareholders entitled to receive payment of a distribution or share
dividend (other than a distribution involving a purchase or redemption by
the Corporation of any of its own shares), the date on which notice of the
meeting is mailed, or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be
the record date for determination of Shareholders. When a determination of
Shareholders entitled to vote at any meeting of Shareholders has been made
as provided in this Section, such determination shall apply to any
adjournment thereof except where the determination has been made by closing
the share transfer records and the stated period of closing has expired.
(b) Fixing Record Dates for Consents to Action. Unless a record date
has previously been determined by the Board of Directors, whenever action
by Shareholders is proposed to be taken by consent in writing without a
meeting of Shareholders, the Board of Directors may fix a record date for
the purpose of determining Shareholders entitled to consent to that action,
which record date shall not proceed, and shall not be more than ten days
after, the date on which the resolution fixing the record date is adopted
by the Board of Directors. If no record date has been fixed by the Board
of Directors and the prior action of the Board of Directors is not
otherwise required by statute, the record date for determining Shareholders
entitled to consent to action in writing without a meeting shall be the
first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent
of the Corporation having custody of the books in which proceedings of
meetings of Shareholders are recorded. Delivery to the Corporation's
principal place of business shall be addressed to the President or the
principal executive officer of the Corporation. If no record date shall
have been fixed by the Board of Directors and prior action of the Board of
Directors is required by statute, the record date for determining
Shareholders entitled to consent to action in writing without a meeting
shall be at the close of business on the date on which the Board of
Directors adopts a resolution taking such prior action.
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Section 2.11 Action by Written Consent.
Unless otherwise provided by law or the Corporation's Articles of
Incorporation, any action required or permitted to be taken by the Shareholders
of the Corporation may be taken without a meeting, without prior notice and
without a vote, if a consent in writing setting forth the action so taken, shall
have been signed by all of the Shareholders entitled to vote with respect to the
action that is the subject of the consent. Except as provided above, no action
shall be taken by the Shareholders by written consent.
Section 2.12 Authorization of Proxies.
Any Shareholder may vote either in person or by proxy executed in writing
by the Shareholder. A telegram, telex, cablegram, or similar transmission by
the Shareholder, or a photographic, photostatic, facsimile, or similar
reproduction or a writing executed by the Shareholder, shall be treated as an
execution in writing. No proxy will be valid after eleven (11) months from the
date of its execution, unless otherwise provided in the proxy. A proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
Section 2.13 Inspectors and Voting Procedures.
(a) The Corporation may, in advance of any meeting of Shareholders,
appoint one or more inspectors to act at the meeting and make a written
report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of Shareholders, the
person presiding at the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
ability.
(b) If any inspectors are elected, the inspectors shall (i) ascertain
the number of shares outstanding and the voting power of each share, the
number of shares represented at the meeting, the existence of a quorum, and
the authority, validity and effect of proxies, (ii) count and tabulate all
votes, assents and consents, and determine and announce results, and (iii)
do all other acts as may be proper to conduct elections or votes with
fairness to all Shareholders. The inspectors, if any are elected, may
appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
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ARTICLE 3.
DIRECTORS
Section 3.1 Management.
The property, affairs and business of the Corporation shall be managed by
or under the direction of the Board of Directors which may exercise all powers
of the Corporation and do all lawful acts and things as are not by law, by the
Corporation's Articles of Incorporation or by these Bylaws directed or required
to be exercised or done by the Shareholders.
Section 3.2 Number and Term.
The number of directors may be fixed from time to time by resolution of the
Board of Directors adopted by the affirmative vote of a majority of the entire
Board of Directors, but shall consist of not less than nine members nor more
than 18 members. Directors need not be Shareholders. No decrease in the number
of directors shall have the effect of shortening the term of office of any
incumbent director.
Section 3.3 Quorum and Manner of Action.
At all meetings of the Board of Directors a majority of the total number of
directors holding office shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, by the Corporation's Articles of
Incorporation or these Bylaws. If at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum is obtained, and no further
notice thereof need be given other than by announcement at such adjourned
meeting. Attendance by a director at a meeting shall constitute a waiver of
notice of such meeting except where a director attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
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Section 3.4 Vacancies.
Except as otherwise provided by law or the Corporation's Articles of
Incorporation, in the case of any vacancy in the Board of Directors, however
created, the vacancy or vacancies may be filled by majority vote of the
directors remaining on the whole Board of Directors although less than a quorum,
or by a sole remaining director. In the event one or more directors shall
resign, effective at a future date, such vacancy or vacancies shall be filled by
election at an annual or special meeting of Shareholders called for that
purpose, or by a majority of the directors who will remain on the whole Board of
Directors, although less than a quorum, or by a sole remaining director. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office. Any directorship to be filled by reason of an
increase in the number of Directors shall be filled by the Board of Directors
for a term of office continuing only until the next election of one or more
directors by the Shareholders; provided that the Board of Directors may not fill
more than two such directorships during the period between any two successive
annual meetings of Shareholders.
Section 3.5 Resignations.
A director may resign at any time upon written notice of resignation to the
Corporation. Any resignation shall be effective immediately unless a certain
effective date is specified therein, in which event it will be effective upon
such date and acceptance of any resignation shall not be necessary to make it
effective.
Section 3.6 Removals.
Any director or the entire Board of Directors may be removed, only for
cause, and another person or persons may be elected to serve for the remainder
of his or their term, by the holders of a majority of the shares of the
Corporation entitled to vote in the election of directors. In case any vacancy
so created shall not be filled by the Shareholders at such meeting, such vacancy
may be filled by the directors as provided in Section 3.4.
Section 3.7 Annual Meetings.
The annual meeting of the Board of Directors shall be held, if a quorum be
present, immediately following each annual meeting of the Shareholders at the
place such meeting of Shareholders took place, for the purpose of organization
and transaction of any business that might be transacted at a regular meeting of
the Board of Directors, and no notice of such meeting shall be necessary. If a
quorum is not present, such annual meeting may be held at any other time or
place that may be specified in a notice given in the manner provided in Section
3.9 for special meetings of the Board of Directors or in a waiver of notice
thereof.
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Section 3.8 Regular Meetings.
Regular meetings of the Board of Directors may be held without notice at
such places and times as shall be determined from time to time by resolution of
the Board of Directors. Except as otherwise provided by law, any business may
be transacted at any regular meeting of the Board of Directors.
Section 3.9 Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman of
the Board, the Chief Executive Officer, the President, or by any director.
Notice of any special meeting, effective upon delivery in accordance herewith,
shall be given at least two days prior thereto by written notice delivered
personally, or by written notice mailed or sent by facsimile transmission to
each director at his business address. If mailed, the notice shall be deemed to
be delivered three days following its deposit in the United States mail so
addressed, with postage thereon prepaid. If given by facsimile transmission,
the notice shall be deemed to be delivered when sent and confirmed
electronically. The attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any special meetings need be specified in any
notice or written waiver of notice unless so required by the Corporation's
Articles of Incorporation or by these Bylaws. Any and all business may be
transacted at a special meeting, unless limited by law, the Corporation's
Articles of Incorporation or by these Bylaws.
Section 3.10 Organization of Meetings.
At any meeting of the Board of Directors, business shall be transacted in
such order and manner as such Board of Directors may from time to time
determine, and all matters shall be determined by the vote of a majority of the
directors present at any meeting at which there is a quorum, except as otherwise
provided by the Corporation's Articles of Incorporation, these Bylaws or by law.
Section 3.11 Place of Meetings.
The Board of Directors may hold its meetings and have one or more offices,
and keep the books of the Corporation, outside the State of Texas, at any office
or offices of the Corporation, or at any other place as it may from time to time
by resolution determine.
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Section 3.12 Compensation of Directors.
Directors shall not receive any stated salary for their services as
directors, but by resolution of the Board of Directors a fixed honorarium or
fees and expenses, if any, of attendance may be allowed for attendance at each
meeting. Nothing herein contained shall be construed to preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending such committee meetings.
Section 3.13 Action by Unanimous Written Consent.
Unless otherwise restricted by law, the Corporation's Articles of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or of such committee,
as the case may be, consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or the
committee.
Section 3.14 Participation in Meetings by Telephone.
Unless otherwise restricted by the Corporation's Articles of Incorporation
or these Bylaws, members of the Board of Directors or of any committee thereof
may participate in a meeting of such Board of Directors or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting in such manner shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the grounds that the meeting is not lawfully called or convened.
Section 3.15 Nominations for Director.
Nominations of persons for election to the Board of the corporation at the
Annual Meeting of Stockholders, other than by the Board or a nominating
committee designated by the Board, must be made in compliance with Section
2.4(a)(1)(C).
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ARTICLE 4.
COMMITTEES OF THE BOARD
Section 4.1 Membership and Authorities.
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board of Directors, designate one or more directors to
constitute such committees as the Board of Directors may determine, each of
which committees to the extent provided in such resolution or resolutions or in
these Bylaws, shall have and may exercise, subject to the provisions of Article
2.36 of the TBCA, all the powers of the Board of Directors in the management of
the business and affairs of the Corporation, except in those cases where the
authority of the Board of Directors is specifically denied to such committee or
committees by law, the Corporation's Articles of Incorporation or these Bylaws,
and may authorize the seal of the Corporation to be affixed to all papers that
may require such seal. The designation of any committee and the delegation
thereto of authority shall not operate to relieve the Board of Directors, or any
member thereof, of any responsibility imposed upon it or him by law.
Section 4.2 Minutes.
Each committee designated by the Board of Directors shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required.
Section 4.3 Vacancies.
The Board of Directors may designate one or more of its members as
alternate members of any committee who may replace any absent or disqualified
member at any meeting of such committee. If no alternate members have been
appointed, the committee member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of, and to dissolve, any committee.
Section 4.4 Telephone Meetings.
Members of any committee designated by the Board of Directors may
participate in or hold a meeting by use of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this
Section 4.4 shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
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Section 4.5 Action Without Meeting.
Any action required or permitted to be taken at a meeting of any committee
designated by the Board of Directors may be taken without a meeting if a consent
in writing, setting forth the action so taken, is signed by all the members of
the committee and filed with the minutes of the committee proceedings. Such
consent shall have the same force and effect as a unanimous vote at a meeting.
ARTICLE 5.
OFFICERS
Section 5.1 Number and Title.
The officers of the Corporation shall be a Chairman of the Board; a Chief
Executive Officer; a President; one or more Executive Vice Presidents, Senior
Vice Presidents and Vice Presidents; a Secretary; a Treasurer; and such other
officers as the Board of Directors may deem to be necessary. Any two or more
offices may be held by the same person. If any two or more offices are held by
the same person, such person shall be entitled to exercise the rights and duties
of each office as set forth hereinafter. If the holder of two or more corporate
offices is required to sign any corporate documents, instruments, certificates,
agreements, or any other documents on the Corporation's behalf, then the
signature of such person in any one of his capacities shall be sufficient to
bind the Corporation.
Section 5.2 Term of Office; Vacancies.
So far as is practicable, all officers shall be elected by the Board of
Directors at the annual meeting of the Board of Directors each year and shall
hold office until the next such meeting of the Board of Directors in the
subsequent year and until their respective successors are elected and qualified
or until their earlier resignation or removal. If any vacancy shall occur in
any office, the Board of Directors may elect or appoint a successor to fill such
vacancy for the remainder of the term.
Section 5.3 Removal of Elected Officers.
Any officer may be removed at any time, with or without cause, by
affirmative vote of a majority of the whole Board of Directors, at any regular
meeting or at any special meeting called for such purpose.
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Section 5.4 Resignations.
Any officer may resign at any time upon written notice of resignation to
the President, Secretary or Board of Directors of the Corporation. Any
resignation shall be effective immediately unless a date certain is specified
for it to take effect, in which event it shall be effective upon such date, and
acceptance of any resignation shall not be necessary to make it effective,
irrespective of whether the resignation is tendered subject to such acceptance.
Section 5.5 The Chairman of the Board.
The Chairman of the Board, if one shall be elected, shall preside at all
meetings of the Shareholders and Board of Directors, unless otherwise determined
by the Board of Directors. In addition, the Chairman of the Board shall perform
whatever duties and shall exercise all powers that are given to him by the Board
of Directors.
Section 5.6 Chief Executive Officer.
The Chief Executive Officer shall be the most senior executive officer of
the Corporation; shall (in the absence of the Chairman of the Board, if one be
elected) preside at meetings of the Shareholders and Board of Directors; shall
have general and active management of business of the Corporation; shall
implement the general directives, plans and policies formulated by the Board of
Directors; and shall further have such duties, responsibilities and authorities
as may be assigned to him by the Board of Directors. He may sign, with any
other proper officer, certificates for shares of the Corporation and any deeds,
bonds, mortgages, contracts and other documents which the Board of Directors has
authorized to be executed, except where required by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors or these Bylaws, to some other
officer or agent of the corporation. In the absence of the Chief Executive
Officer, his duties shall be performed and his authority may be exercised by the
President of the Corporation.
Section 5.7 President.
The President shall, after the Chief Executive Officer, be the most senior
executive officer of the corporation and shall, subject to the authority of the
Chief Executive Officer, implement the general plans and directives of the Board
of Directors and perform such other duties as may be assigned to him by the
Board of Directors.
Section 5.8 Vice Presidents.
The several Vice Presidents, including Executive Vice Presidents and Senior
Vice Presidents, shall have such powers and duties as may be assigned to them by
these Bylaws and as may from time to time be assigned to them by the Board of
Directors and may sign, with any other proper officer, certificates for shares
of the Corporation.
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Section 5.9 Secretary.
The Secretary, if available, shall attend all meetings of the Board of
Directors and all meetings of the Shareholders and record the proceedings of the
meetings in a book to be kept for that purpose and shall perform like duties for
any committee of the Board of Directors as shall designate him to serve. He
shall give, or cause to be given, notice of all meetings of the Shareholders and
meetings of the Board of Directors and committees thereof and shall perform such
other duties incident to the office of secretary or as may be prescribed by the
Board of Directors or the President, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation and he, or any
Assistant Secretary, or any other person whom the Board of Directors may
designate, shall have authority to affix the same to any instrument requiring
it, and when so affixed it may be attested by his signature or by the signature
of any Assistant Secretary or by the signature of such other person so affixing
such seal.
Section 5.10 Assistant Secretaries.
Each Assistant Secretary shall have the usual powers and duties pertaining
to his office, together with such other powers and duties as may be assigned to
him by the Board of Directors, the President or the Secretary. The Assistant
Secretary or such other person as may be designated by the President shall
exercise the powers of the Secretary during that officer's absence or inability
to act.
Section 5.11 Treasurer or Chief Financial Officer.
The Treasurer or Chief Financial Officer shall have the custody of and be
responsible for the corporate funds and securities, shall keep full and separate
accounts of receipts and disbursements in the books belonging to the Corporation
and shall deposit all monies and other valuable effects in the name and the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. He shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as Treasurer or Chief Financial Officer and of the financial
condition of the Corporation and he shall perform all other duties incident to
the position of Treasurer or Chief Financial Officer, or as may be prescribed by
the Board of Directors or the President. If required by the Board of Directors,
he shall give the Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 5.12 Assistant Treasurers.
Each Assistant Treasurer shall have the usual powers and duties pertaining
to his office, together with such other powers and duties as may be assigned to
him by the Board of Directors, the President or the Treasurer. The Assistant
Treasurer or such other person designated by the President shall exercise the
power of the Treasurer during that officer's absence or inability to act.
16
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Section 5.13 Subordinate Officers.
The Board of Directors may (i) appoint such other subordinate officers and
agents as it shall deem necessary who shall hold their offices for such terms,
have such authority and perform such duties as the Board of Directors may from
time to time determine, or (ii) delegate to any committee or officer the power
to appoint any such subordinate officers or agents.
Section 5.14 Salaries and Compensation.
The salary or other compensation of officers shall be fixed from time to
time by the Board of Directors. The Board of Directors may delegate to any
committee or officer the power to fix from time to time the salary or other
compensation of officers.
ARTICLE 6.
INDEMNIFICATION
(a) Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such action, suit or
proceeding, and any inquiry or investigation that would lead to such action,
suit or proceeding (hereinafter a "proceeding"), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director or officer of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the TBCA, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than permitted prior
thereto), against all judgments, fines, penalties (including excise tax and
similar taxes), settlements, and reasonable expenses actually incurred by such
indemnitee in connection therewith. The right to indemnification conferred in
this Section shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the TBCA
requires, an advancement of expenses incurred by an indemnitee shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
(b) Insurance. The Corporation may purchase and maintain insurance, at its
expense, on behalf of any indemnitee against any liability asserted against him
and incurred by him in such a capacity or arising out of his status as a
representative of the Corporation, whether or not the
17
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Corporation would have the power to indemnify such person against such expense,
liability or loss under the TBCA.
(c) Indemnity of Employees and Agents of the Corporation. The Corporation
may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this Article
or as otherwise permitted under the TBCA with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE 7.
CAPITAL STOCK
Section 7.1 Certificates of Stock.
Certificates of stock shall be issued to each Shareholder certifying the
number of shares owned by him in the Corporation and shall be in a form not
inconsistent with the Articles of Incorporation and as approved by the Board of
Directors. The certificates shall be signed by the Chairman of the Board, the
Chief Executive Officer, the President or a Vice President and by the Secretary
or an Assistant Secretary, or the Treasurer, Chief Financial Officer or an
Assistant Treasurer and may be sealed with the seal of the Corporation or a
facsimile thereof. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate ceases to hold such
position, such certificate may nevertheless be issued by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at the
date of issue.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, each certificate representing shares
shall conspicuously set forth in full or summarize on the face or back of the
certificate either (i) the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof to the extent they have been filed and determined and the authority of
the Board of Directors to fix and determine the designations, preferences,
limitations and relative rights of subsequent series, or (ii) a summary thereof;
provided that, except as otherwise provided by statute, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock a
statement that such information is set forth in the Articles of Incorporation on
file in the office of the Secretary of State of the State of Texas, and the
Corporation will furnish without charge to each Shareholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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Section 7.2 Lost Certificates.
The Board of Directors may direct a new certificate to be issued in place
of any certificate theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
owner of such certificate, or his legal representative. When authorizing the
issuance of a new certificate, the Board of Directors may in its discretion, as
a condition precedent to the issuance thereof, require the owner, or his legal
representative, to give a bond in such form and substance with such surety as it
may direct, to indemnify the Corporation against any claim that may be made on
account of the alleged loss, theft or destruction of such certificate or the
issuance of such new certificate.
Section 7.3. Dividends.
Subject to Article 2.38 of the TBCA and the provisions of the Corporation's
Articles of Incorporation, if any, and except as otherwise provided by law, the
directors may declare dividends upon the capital stock of the Corporation as and
when they deem it to be expedient. Such dividends may be paid in cash, in
property or in shares of the Corporation's capital stock. Before declaring any
dividend there may be set apart out of the funds of the Corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion determine to be proper for working capital or as a reserve fund to
meet contingencies or for equalizing dividends, or for such other purposes as
the directors shall determine to be in the best interest of the Corporation and
the directors may modify or abolish any such reserve in the manner in which it
was created.
Section 7.4. Registered Shareholders.
Except as expressly provided by law, the Corporation's Articles of
Incorporation or these Bylaws, the Corporation shall be entitled to treat
registered Shareholders as the only holders and owners in fact of the shares
standing in their respective names and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, regardless of whether it shall have express or other notice
thereof.
Section 7.5. Transfer of Stock.
Transfers of shares of the capital stock of the Corporation shall be made
only on the books of the Corporation by the registered owners thereof, or by
their legal representatives or their duly authorized attorneys. Upon any such
transfers the old certificates shall be surrendered to the Corporation by the
delivery thereof to the person in charge of the stock transfer books and
ledgers, by whom they shall be canceled and new certificates shall thereupon be
issued.
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ARTICLE 8.
MISCELLANEOUS PROVISIONS
Section 8.1. Corporate Seal.
If one is adopted, the corporate seal shall have inscribed thereon the name
of the Corporation and shall be in such form as may be approved by the Board of
Directors. Such seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
Section 8.2. Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
Section 8.3. Checks, Drafts, Notes.
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents of the Corporation, and in such
manner as shall from time to time be determined by resolution (whether general
or special) of the Board of Directors or may be prescribed by any officer or
officers, or any officer and agent jointly, thereunto duly authorized by the
Board of Directors.
Section 8.4. Notice and Waiver of Notice.
Whenever notice is required to be given to any director or Shareholder
under the provisions of applicable law, the Corporation's Articles of
Incorporation or these Bylaws, such notice shall be in writing and delivered
whether (i) personally, or (ii) by registered or certified mail, or (iii) by
telegram, telecopy, or similar facsimile means (delivered during the recipient's
regular business hours). Such notice shall be sent to such director or
Shareholder at the address or telecopy number as it appears on the records of
the Corporation, unless prior to the sending of such notice he has designated,
in a written request to the Secretary of the Corporation, another address or
telecopy number to which notices are to be sent. Notices shall be deemed given
when received, if sent by telegram, telex, telecopy or similar facsimile means
(confirmation of such receipt by confirmed facsimile transmission being deemed
receipt of communications sent by telex, telecopy or other facsimile means); and
when delivered and receipted for (or upon the date of attempted delivery where
delivery is refused), if hand delivered, sent by express courier or delivery
service, or sent by certified or registered mail. Whenever notice is required
to be given under any provision of law, the Corporation's Articles of
Incorporation or these Bylaws, a waiver thereof in writing, by telegraph, cable
or other form of recorded communication, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Shareholders, directors, or
members of a committee of directors need be specified in any written waiver of
notice unless so required by the Corporation's Articles of Incorporation or
these Bylaws.
20
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Section 8.5. Examination of Books and Records.
The Board of Directors shall determine from time to time whether, and if
allowed, when and under what conditions and regulations the accounts and books
of the Corporation (except such as may by statute be specifically opened to
inspection) or any of them shall be open to inspection by the Shareholders, and
the Shareholders' rights in this respect are and shall be restricted and limited
accordingly.
Section 8.6. Voting Upon Shares Held by the Corporation.
Unless otherwise provided by law or by the Board of Directors, the Chairman
of the Board of Directors, the Chief Executive Officer, the President, or any
Vice President, acting on behalf of the Corporation, shall have full power and
authority to attend and to act and to vote at any meeting of shareholders of any
corporation, partnership, venture or limited liability company in which the
Corporation may hold stock or other equity interest and, at any such meeting,
shall possess and may exercise any and all of the rights and powers incident to
the ownership of such equity interest which, as the owner thereof, the
Corporation might have possessed and exercised, if present. The Board of
Directors by resolution from time to time may confer like powers upon any person
or persons.
ARTICLE 9.
AMENDMENTS
Except as expressly provided in the Corporation's Articles of
Incorporation, the directors, by the affirmative vote of a majority of the
entire Board of Directors and without the assent or vote of the Shareholders,
may at any meeting, provided the substance of the proposed amendment shall have
been stated in the notice of the meeting, make, repeal, alter, amend or rescind
any of these Bylaws or to adopt new Bylaws. The Shareholders shall not make,
repeal, alter, amend or rescind any of the provisions of these Bylaws except by
the holders of not less than a majority of the shares of stock of the
Corporation entitled to vote in the election of directors.
21
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[Execution Copy]
================================================================================
Indenture
Between
GROUP MAINTENANCE AMERICA CORP.
and
STATE STREET BANK AND TRUST COMPANY, Trustee
Dated as of December 31, 1998
================================================================================
<PAGE>
GROUP MAINTENANCE AMERICA CORP.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of December 31, 1998
Trust Indenture Indenture
Act Section Section
--------------- -----------
(S) 310(a)(1)............... 6.07
(a)(2)............... 6.07
(b).................. 6.08
(S) 312(c) ................ 7.01
(S) 314(a)................. 7.03
(a)(4)............... 10.04(a)
(c)(1)............... 1.02
(c)(2)............... 1.02
(e).................. 1.02
(S) 315(b).................. 6.01
(S) 316(a)(last sentence)... 1.01 ("Outstanding ")
(a)(1)(A) ........... 5.02, 5.12
(a)(1)(B)............ 5.13
(b).................. 5.08
(c).................. 1.04(d)
(S) 317(a)(1)............... 5.03
(a)(2)............... 5.04
(b).................. 10.03
(S) 318(a).................. 1.11
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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<PAGE>
TABLE OF CONTENTS*
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.................................................. 1
Acquisition............................................................. 1
Act..................................................................... 1
Affiliate............................................................... 1
Board of Directors...................................................... 1
Board Resolution........................................................ 2
Business Day............................................................ 2
Capital Stock........................................................... 2
Capitalized Lease Obligation............................................ 2
Company................................................................. 2
Company Request......................................................... 2
Company Order........................................................... 2
Corporate Trust Office.................................................. 2
Credit Facility......................................................... 2
Default................................................................. 3
Defaulted Interest...................................................... 3
Depository.............................................................. 3
Event of Default........................................................ 3
Exchange Act............................................................ 3
Federal Bankruptcy Code................................................. 3
GAAP.................................................................... 3
Global Security......................................................... 3
Holder.................................................................. 3
Securityholder.......................................................... 3
Interest Payment Date................................................... 3
Issue Date.............................................................. 3
Junior Indebtedness..................................................... 3
Legal Holiday........................................................... 3
Officers' Certificate................................................... 3
Opinion of Counsel...................................................... 4
Original Issue Discount Security........................................ 4
Other Acquisition Debt.................................................. 4
Other Qualified Debt.................................................... 4
Outstanding............................................................. 4
Pari Passu Debt......................................................... 5
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*Note: This Table of Contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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<PAGE>
Paying Agent........................................................... 5
Person................................................................. 5
Predecessor Security................................................... 6
Preferred Stock........................................................ 6
Redemption Date........................................................ 6
Redemption Price....................................................... 6
Regular Record Date.................................................... 6
Responsible Officer.................................................... 6
SEC.................................................................... 6
Securities............................................................. 6
Securities Act......................................................... 6
Security Register...................................................... 6
Security Registrar..................................................... 6
Senior Indebtedness.................................................... 7
Special Record Date.................................................... 7
Stated Maturity........................................................ 7
Stock Purchase Agreement............................................... 8
Subsidiary............................................................. 8
Trust Indenture Act.................................................... 8
TIA.................................................................... 8
Trustee................................................................ 8
U.S. Government Obligations............................................ 8
Vice President......................................................... 8
SECTION 1.02 Other Definitions........................................... 8
SECTION 1.03 Incorporation by Reference of Trust Indenture Act........... 9
SECTION 1.04 Rules of Construction....................................... 9
SECTION 1.05 Compliance Certificates and Opinions........................ 10
SECTION 1.06 Form of Documents Delivered to Trustee...................... 11
SECTION 1.07 Acts of Holders; Record Dates............................... 11
SECTION 1.08 Notices, Etc., to Trustee, the Company...................... 12
SECTION 1.09 Notice to Holders; Waiver................................... 13
SECTION 1.10 Effect of Headings and Table of Contents.................... 14
SECTION 1.11 Successors and Assigns...................................... 14
SECTION 1.12 Separability Clause......................................... 14
SECTION 1.13 Benefits of Indenture....................................... 14
SECTION 1.14 Governing Law; Trust Indenture Act.......................... 14
SECTION 1.15 Legal Holidays.............................................. 14
SECTION 1.16 Interest Limitation......................................... 15
ARTICLE TWO
SECURITY FORMS
SECTION 2.01 Forms Generally............................................. 15
SECTION 2.02 Form of Legend for Global Securities........................ 16
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ARTICLE THREE
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series.................. 16
SECTION 3.02 Denominations......................................... 19
SECTION 3.03 Execution, Authentication, Delivery and Dating........ 19
SECTION 3.04 Temporary Securities.................................. 20
SECTION 3.05 Limited Registration, Limited Registration of Transfer
and Exchange......................................... 20
SECTION 3.06 Mutilated, Destroyed Lost and Stolen Securities....... 22
SECTION 3.07 Payment of Interest; Interest Rights Preserved........ 23
SECTION 3.08 Persons Deemed Owners................................. 24
SECTION 3.09 Cancellation.......................................... 24
SECTION 3.10 Computation of Interest............................... 25
SECTION 3.11 CUSIP Numbers......................................... 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture............... 25
SECTION 4.02 Application of Trust Money............................ 26
ARTICLE FIVE
REMEDIES
SECTION 5.01 Events of Default..................................... 26
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.... 28
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee........................................... 29
SECTION 5.04 Trustee May File Proofs of Claim...................... 29
SECTION 5.05 Trustee May Enforce Claims Without Possession of
Securities........................................... 30
SECTION 5.06 Application of Money Collected........................ 30
SECTION 5.07 Limitation on Suits................................... 31
SECTION 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest................................. 32
SECTION 5.09 Restoration of Rights and Remedies.................... 32
SECTION 5.10 Rights and Remedies Cumulative........................ 32
SECTION 5.11 Delay or Omission Not Waiver.......................... 32
SECTION 5.12 Control by Holders.................................... 33
SECTION 5.13 Waiver of Past Defaults............................... 33
SECTION 5.14 Waiver of Stay or Extension Laws...................... 34
SECTION 5.15 Undertaking for Costs................................. 34
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ARTICLE SIX
THE TRUSTEE
SECTION 6.01 Notice of Defaults.................................... 34
SECTION 6.02 Certain Rights of Trustee............................. 34
SECTION 6.03 Trustee Not Responsible for Recitals or Issuance of
Securities........................................... 36
SECTION 6.04 May Hold Securities................................... 36
SECTION 6.05 Money Held in Trust................................... 36
SECTION 6.06 Compensation and Reimbursement........................ 36
SECTION 6.07 Corporate Trustee Required; Eligibility............... 37
SECTION 6.08 Resignation and Removal; Appointment of Successor..... 37
SECTION 6.09 Acceptance of Appointment by Successor................ 39
SECTION 6.10 Merger, Conversion, Consolidation or Succession to
Business............................................. 39
SECTION 6.11 Certain Duties and Responsibilities................... 39
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 Disclosure of Names and Addresses of Holders.......... 41
SECTION 7.02 Reports by Trustee.................................... 41
SECTION 7.03 Reports by Company.................................... 41
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER, OR LEASE
SECTION 8.01 The Company May Consolidate, Etc., Only on Certain
Terms................................................ 42
SECTION 8.02 Successor Substituted................................. 42
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.... 43
SECTION 9.02 Supplemental Indentures with Consent of Holders....... 44
SECTION 9.03 Execution of Supplemental Indentures.................. 45
SECTION 9.04 Effect of Supplemental Indentures..................... 45
SECTION 9.05 Conformity with Trust Indenture Act................... 45
SECTION 9.06 Reference in Securities to Supplemental Indentures.... 45
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ARTICLE TEN
COVENANTS
SECTION 10.01 Payment of Principal, Premium, if Any, and Interest.. 46
SECTION 10.02 Maintenance of Office or Agency...................... 46
SECTION 10.03 Money for Security Payments to Be Held in Trust...... 46
SECTION 10.04 Statement by Officers as to Default.................. 48
SECTION 10.05 Waiver of Certain Covenants.......................... 48
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01 Right of Redemption.................................. 48
SECTION 11.02 Applicability of Article............................. 48
SECTION 11.03 Election to Redeem; Notice to Trustee................ 49
SECTION 11.04 Selection by Trustee of Securities to Be Redeemed.... 49
SECTION 11.05 Notice of Redemption................................. 49
SECTION 11.06 Deposit of Redemption Price.......................... 50
SECTION 11.07 Securities Payable on Redemption Date................ 50
SECTION 11.08 Securities Redeemed in Part.......................... 51
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01 The Company's Option to Effect Defeasance or Covenant
Defeasance.......................................... 51
SECTION 12.02 Legal Defeasance and Discharge....................... 51
SECTION 12.03 Covenant Defeasance.................................. 52
SECTION 12.04 Conditions to Legal Defeasance or Covenant Defeasance 52
SECTION 12.05 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.... 53
SECTION 12.06 Reinstatement........................................ 54
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.01 Agreement of Subordination........................... 54
SECTION 13.02 Terms of Subordination............................... 55
SECTION 13.03 No Waiver or Amendment of Subordination Provision.... 59
SECTION 13.04 Payments to Holders.................................. 59
SECTION 13.05 Authorization of Holders to Trustee to Effect
Subordination....................................... 59
SECTION 13.06 All Provisions of the Indenture Qualified by
Article XIII........................................ 59
SECTION 13.07 Limitation on Remedies of Holders.................... 59
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<PAGE>
SECTION 13.08 Further Assurances................................... 60
SECTION 13.09 Trustee Not Fiduciary for Holders of Senior
Indebtedness........................................ 60
SECTION 13.10 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.................... 60
SECTION 13.11 Article Applicable to Paying Agents.................. 60
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01 Liability Solely Corporate........................... 60
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<PAGE>
EXHIBITS
EXHIBIT A Form of Securities, Trustee's Certificate of Authentication
-viii-
<PAGE>
INDENTURE, dated as of December 31, 1998 between GROUP MAINTENANCE
AMERICA CORP., a corporation duly organized and existing under the laws of the
State of Texas (herein called "the Company"), and STATE STREET BANK AND TRUST
COMPANY, a national banking association duly organized and existing under the
laws of the United States, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the " Securities "), to be issued in one or more series as provided in this
Indenture.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.
"Acquisition" means the direct or indirect acquisition of a business or
businesses, properties or securities in the transaction pursuant to which the
Securities of a series are issued.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.07.
"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.
"Board of Directors" means the Board of Directors of the Company, or any
committee thereof duly authorized to act on behalf of any such Board, as
applicable.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company 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 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 Obligation" means any obligation of the Company, as
lessee or guarantor, to pay rent under a lease of real or personal property,
which obligation, in the judgment of the independent public accountants employed
by the Company, is required to be capitalized on the balance sheet of the lessee
or guarantor in accordance with generally accepted accounting principles.
"Company" means the corporation named as the "Company" in the first
paragraph of this Indenture until a successor entity shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, a Vice Chairman, its
President, or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 225 Franklin Street, Boston, Massachusetts 02110, Attention:
Corporate Trust Administration, except that with respect to presentation of
Securities for payment or for registration of transfer or exchange, such term
shall mean the office or agency of the Trustee at which, at any particular time,
its corporate agency business shall be conducted.
"Credit Facility" means the Second Amended and Restated Credit Agreement
dated as of October 15, 1998 executed by the Company, the Subsidiaries of the
Company listed as guarantors therein, Chase Bank of Texas, National Association
and the various other banks named therein and related documents, including,
without limitation, any notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended
(including, without limitation, any amendment and restatement thereof),
modified, renewed, refunded, replaced or refinanced from time to time,
including, without limitation, any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including, without
limitation, increasing the amount of available borrowings thereunder or adding
Subsidiaries of the Company as additional borrowers or guarantors thereunder)
all or any portion of the indebtedness under such Second Amended and Restated
Credit Agreement, any successor or replacement
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agreement or any other Credit Facility and whether by the same or any other
agents, lender or group of lenders.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.09.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Dollars" or "$" means United States Dollars.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Federal Bankruptcy Code" means the Bankruptcy Act or Title 11 of the
United States Code, as amended from time to time.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on the Issue Date as consistently applied.
"Global Security" means a Security bearing the legend specified in Section
2.02 evidencing all or part of a series of Securities, issued to the Depository
for such series or its nominee, and registered in the name of such Depository or
nominee.
"Holder" or " Securityholder" means the Person in whose name a Security is
registered in the Security Registrar.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Issue Date" means the date on which the Securities of any series are
originally issued.
"Junior Indebtedness" means indebtedness of the Company heretofore or
hereafter created that, by the terms of the instrument by which such
indebtedness is created or evidenced, ranks junior and subordinate in right of
payment to Securities of any series.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the States of New York and Massachusetts are authorized or
required by law to close.
"Officers' Certificate" means a certificate signed by the Chairman, a Vice
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an
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Assistant Secretary of the Company, and delivered to the Trustee. Any one
individual holding the requisite titles may sign and deliver an
Officers' Certificate without cosignature of another individual with a requisite
title.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Other Acquisition Debt" means (a) the notes issued pursuant to the Stock
Purchase Agreement, (b) indebtedness that (i) consists of the deferred purchase
price of capital stock purchased by the Company or the deferred purchase price
of all or substantially all of the assets of any person purchased by the
Company, and (ii) is issued to the person that sold such capital stock or all or
substantially all of the assets of such person, as the case may be, to the
Company, and (c) indebtedness of the person the stock of which or assets of
which, as the case may be, are so purchased that is not paid within five (5)
Business Days after such purchase and liability for which is assumed by the
Company in connection with such purchase; provided that in no event will any
indebtedness incurred under a Credit Facility or Other Qualified Debt be
considered to be Other Acquisition Debt.
"Other Qualified Debt" means all principal of, premium, if any, and
interest on indebtedness evidenced by notes, bonds, debentures and similar
instruments (whether characterized as subordinated, senior subordinated, senior
or otherwise) issued from time to time by the Company (i) to insurance
companies, pension funds, mutual funds or other institutional lenders or
institutional investors, whether in a public offering or through a private
placement or otherwise, or (ii) in a public offering registered under the
Securities Act. The notes issued pursuant to the Stock Purchase Agreement shall
not constitute other Qualified Debt.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
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(iii) Securities, except to the extent provided in Sections 12.02
and 12.03, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 3.08 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Sections 316 and 315(d), (i)
the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
maturity thereof pursuant to Section 5.02, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
in Section 3.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company (except as required by TIA Sections 316 and 315(d)) or
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, consent, notice or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
"Pari Passu Debt" means any indebtedness of the Company heretofore or
hereafter created that, by the terms of the instrument by which such
indebtedness is created or evidenced, ranks pari passu in right of payment with
Securities of a series and is entitled to like rights of subrogation.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any,
on) or interest on any one or more series of Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
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"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.08 in exchange for or in lieu of a
mutilated, lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Security.
"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.
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 3.01.
"Responsible Officer," when used with respect to the Trustee, means any
trust officer or assistant trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above-
designated officers, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at anytime there is more than one
Person acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture; exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
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"Senior Indebtedness" means the following, whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed, (a) the principal
of, premium, if any, and interest on (i) indebtedness (other than Securities of
a series) of the Company for money borrowed (including, without limitation, any
indebtedness incurred by the Company under any Credit Facility and any Other
Qualified Debt), (ii) indebtedness of the Company evidenced by bonds, notes,
debentures or similar instruments (other than Securities of a series and Other
Acquisition Debt), (iii) Capitalized Lease Obligations and all obligations of
the Company under any operating lease or other lease, (iv) every obligation
under interest swap, hedge, exchange or similar agreements or foreign currency
swap, hedge, exchange or similar agreements of the Company; (v) every
reimbursement obligation of the Company with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of the Company
or any of its Subsidiaries, and (vi) indebtedness and obligations of others of
the kinds described in the preceding clauses (i), (ii), (iii) , (iv) and (v),
assumed or guaranteed by the Company or in effect guaranteed by the Company
through an agreement to purchase or otherwise; unless in each case referred to
in clauses (i), (ii), (iii), (iv), (v) and (vi) above, by the terms of the
instrument creating or evidencing the indebtedness or obligation it is expressly
provided that such indebtedness is Pari Passu Debt or Junior Indebtedness under
Securities of any series; (b) any other indebtedness, liability or obligation,
contingent or otherwise, other than Securities of a series and Other Acquisition
Debt, of the Company (any such indebtedness, liability or obligation being
hereinafter in this definition referred to as an "Obligation"), and any
guaranty, endorsement or other contingent obligation in respect of any
Obligation of another, which is created, assumed or incurred by the Company
after the date of Securities of any series and which, when created, assumed or
incurred, is specifically designated by the Company as Senior Indebtedness for
the purposes hereof in the instrument creating or evidencing an Obligation or
the Company's liability with respect to the Obligations of another; and (c) any
increases, refundings, renewals, rearrangements or extensions of and amendments,
modifications and supplements to any indebtedness, liability or obligation
described in clauses (a) or (b) above. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (a) indebtedness evidenced by Securities of that
series, (b) amounts owed by the Company to employees for compensation of such
employees, (c) any liability for federal, state, local or other taxes owed or
owing by the Company, and (d) Other Acquisition Debt; provided that "Senior
Indebtedness" shall include the principal of, premium, if any, and interest on
indebtedness incurred under any Credit Facility and the principal of, premium,
if any, and interest on Other Qualified Debt.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.09.
"Stated Maturity" means, with respect to any Security, the date specified
in such Security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred). "Stated Maturity" means, with
respect to any installment of interest on the Securities, the date specified in
the Securities as the fixed date on which such installment of interest is due
and payable.
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"Stock Purchase Agreement" means the Stock Purchase Agreement dated
November 3, 1998 among the Company, GroupMAC Holding Corp., a Delaware
corporation, Trinity Contractors, Inc., a Delaware corporation ("Trinity"), and
the holders of the outstanding capital stock of Trinity.
"Subsidiary" means, in respect of any Person, any corporation, association,
limited liability company, limited or general 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.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean only the Trustee with respect to Securities of that series.
"U. S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U. S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 1.02 Other Definitions.
Term Defined in Section
Bankruptcy Law 5.01
Covenant Defeasance 12.03
Custodian 5.01
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Defaulted Interest 3.09
Indenture Obligations 12.01
Legal Defeasance 12.02
Notice 1.08
Successor Company 8.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other Trust Indenture Act terms used in this Indenture that are defined
by the Trust Indenture Act, defined by reference in the Trust Indenture Act to
another statute or defined by a rule of the SEC and not otherwise defined herein
shall have the meanings assigned to them therein.
SECTION 1.04 Rules of Construction.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(c) all ratios and computations based on GAAP contained in this
Indenture shall be computed in accordance with the definition of GAAP set
forth above;
(d) the words "herein," "hereof' and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision of this Indenture;
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(e) "or" is not exclusive;
(f) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America;
(g) provisions apply to successive events and transactions; and
(h) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
SECTION 1.05 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall, with respect to
any application or request to make an optional redemption or prepayment of the
Securities and, upon the request of the Trustee with respect to any other
application or request, furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture (including
any covenant compliance with which constitutes a condition precedent) relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual,
such individual has made such examination or investigation as is necessary
to enable such individual 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, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 1.06 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.07 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, declaration, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed or approved by such Holders in person or by
agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to such witness, notary public or other such officer the
execution thereof. Where such execution is by a signer acting in a capacity
other than such signer's individual capacity, such certificate or affidavit
shall also constitute sufficient proof of authority. The fact and date of the
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execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option by or pursuant to Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, declaration, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, declaration,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, declaration, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) To the extent permitted by law, in the event the Securities are held in
global form with the Depository acts, taken by the Holders and delivered
electronically pursuant to the regular and customary practices of the Depository
shall be deemed to satisfy the requirement for writings hereunder provided the
Trustee is satisfied with the mechanics of such electronic act.
SECTION 1.08 Notices, Etc., to Trustee, the Company.
Any request, demand, authorization, direction, declaration, notice,
consent, waiver or Act of Holders or other document provided by or pertaining to
this Indenture (herein collectively called "Notice") to be made upon, given or
furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or at any
other address previously furnished in writing to the Holders and the
Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing to or with the
Company addressed to it at the address of the Company's principal office,
Attention: Chief Financial Officer, which shall initially be Group
Maintenance America Corp., 8 Greenway Plaza, Suite 1500, Houston, Texas
77046.
Any Notice to be given hereunder by any party to another shall be in
writing and delivered in person or by courier service requiring
acknowledgment of delivery, mailed by first class mail, postage prepaid,
or telecopied to the addressee (including telecopier number, if applicable)
set forth herein. Notice given by personal delivery or courier service
shall be effective upon actual receipt. Notice given by mail shall be
effective five days after deposit with the United States postage service.
Notice given by telecopier shall be confirmed by appropriate answer-back
and shall be effective upon actual receipt if received during the
recipient's normal business hours or at the beginning of the recipient's
next Business Day after receipt if not received during the recipient's
normal business hours. All Notices by telecopier shall be confirmed
promptly after transmission in writing by mail or personal delivery. A
party may change any address to which Notice is to be given to it by giving
Notice as provided above of such change of address. The initial telecopier
number for the Trustee is (__) ___-____; the initial telecopier number for
the Company is (713) 626-4766.
SECTION 1.09 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, or delivered by recognized overnight courier to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Any notice mailed to a Holder in
the manner herein prescribed shall be conclusively deemed to have been received
by such Holder, whether or not such Holder actually receives such notice. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to mail notice
of any event to Holders when such notice
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is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.10 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.11 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.12 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions, to the extent permitted by law, shall not in any way
be affected or impaired thereby.
SECTION 1.13 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent, any
Securities Registrar and their respective successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.14 Governing Law; Trust Indenture Act.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF. This Indenture is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 1.15 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity or Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or Maturity.
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SECTION 1.16 Interest Limitation.
It is the intention of the Company to conform strictly to all applicable
usury laws and any subsequent revisions, repeals or judicial interpretations
thereof. Accordingly, if the transactions contemplated hereby would be usurious
under any applicable law then, in that event, notwithstanding anything to the
contrary in the Securities or this Indenture, it is agreed as follows: (i) the
aggregate of all consideration which constitutes interest under applicable law
with respect to a Security shall under no circumstance exceed the maximum amount
allowed by applicable law, and any excess shall be credited to the principal
amount of such Security (or, if the principal amount of such Security shall have
been paid in full, refunded to the Company), to the extent permitted by
applicable law; and (ii) in the event that the maturity of any Security is
accelerated or in the event of any redemption of such Security, then such
consideration that constitutes interest under applicable law may never include
more than the maximum amount allowed by applicable law, and any excess shall be
credited to the principal amount of such Security (or, if the principal amount
of such Security shall be paid in full, refunded to the Company), to the extent
permitted by applicable law. All calculations made to compute the rate of
interest with respect to a Security for the purpose of determining whether such
rate exceeds the maximum amount allowed by applicable law shall be made, to the
extent permitted by such applicable law, by allocating and spreading during the
period of the full stated term of such Security all interest any time contracted
for, taken, reserved, charged or received by such Holder or by the Trustee on
behalf of any such Holder in connection therewith so that the amount or rate of
interest charged for any and all periods of time during the term of the Security
does not exceed the maximum amount or rate of interest allowed to be charged by
law during the relevant period of time. Notwithstanding any of the foregoing, if
at any time applicable laws shall be changed so as to permit a higher rate or
amount of interest to be charged than that permitted prior to such change, then
unless prohibited by law, references in this Indenture or any Security to
"applicable law" when used in the context of determining the maximum interest or
rate of interest that can be charged shall be deemed to refer to such applicable
law as so amended to allow the greater amount or rate of interest.
The right to accelerate maturity of any Security does not include the right
to accelerate any interest which has not otherwise accrued to the date of such
acceleration, provided however, that the foregoing shall not prohibit the
continuing accrual after acceleration of interest in accordance with the terms
of the Indenture and such Security.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01 Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
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letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any applicable law
or any applicable rule or regulation promulgated thereunder, with the rules of
any securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities.
The definitive Securities shall be typed, printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
The terms and provisions contained in the form of the Securities annexed
hereto as Exhibit A are deemed to be in substantially the form of this Article
and shall constitute, and are hereby expressly made, a part of this Indenture.
To the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
SECTION 2.02 Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable for
Securities registered in the name of a Person other than the Depository or
its nominee only in the limited circumstances described in the Indenture,
and no transfer of this Security (other than a transfer of this Security as
a whole by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by
the Depository or any such nominee of the Depository to a successor
Depository or a nominee of such successor Depository) may be registered
except in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 3.01 Amount Unlimited, Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for
any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of and any premium on the
Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which the Securities of
the series shall bear interest, if any, the date or dates from which such
interest shall accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the Company
is to have that option;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America
and the manner of determining the equivalent thereof in the currency of the
United States of America for purposes of the definition of "Outstanding" in
Section 1.01;
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(10) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, including, but not limited to an index based on a currency or
currencies other than that in which the Securities of that series are
payable, or any other type of index, the manner in which such amounts shall
be determined;
(11) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.02 or provable in bankruptcy pursuant to Section 5.04 or the method by
which such portion shall be determined;
(13) any trustees, paying agents, transfer agents or registrars with
respect to Securities of such series;
(14) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more Global
Securities and, in such case, (a) the Depository with respect to such
Global Security or Securities, which Depository at the time of designation
and at all times while it serves as Depository shall be a clearing agency
registered under the Exchange Act; and (b) the circumstances under which
any such Global Security may be exchanged for Securities registered in the
name of, and any transfer of such Global Security may be registered to, a
Person other than such Depository or its nominee, if other than as set
forth in Section 3.05;
(15) the obligation, if any, of the Company to permit the conversion
or exchange of Securities of such series into other securities (whether or
not issued by, or the obligation of, the Company), and the terms and
conditions upon which such conversion or exchange shall be effected
(including without limitation, the initial conversion or exchange price or
rate, the conversion or exchange period and any other provisions in
addition to or in lieu of those set forth in this Indenture relative to
such obligation); and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and
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set forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02 Denominations.
The Securities of each series shall be issuable only in fully registered
form without coupons and in such denominations as shall be specified as
contemplated by Section 3.01. In the absence of such specifications, the
Securities of such series shall be issuable only in denominations at final
maturity of $1,000 and any integral multiple thereof.
SECTION 3.03 Execution, Authentication, Delivery and Dating.
The Securities of each series shall be executed on behalf of the Company by
its Chairman, a Vice Chairman, its President or a Vice President. The signature
of any of these officers on the Securities may be manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee or an
authenticating agent in accordance with such Company Order shall authenticate
and deliver such Securities. In each case, the Trustee shall be entitled to
receive an Officers' Certificate and an Opinion of Counsel of the Company that
it may reasonably request in connection with such authentication of Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
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In case the Company, pursuant to Article Eight, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Request of
the successor Person, shall authenticate and deliver Securities as specified in
such request for the purpose of such exchange. If Securities shall at any time
be authenticated and delivered in any new name of a successor Person pursuant to
this Section 3.03 in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities at
the time Outstanding for Securities authenticated and delivered in such new
name.
SECTION 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are typed, printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company designated for such purpose pursuant to Section 10.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 3.05 Limited Registration, Limited Registration of Transfer and
Exchange.
Securities of any series may not be transferred except upon the written
consent of the Company or to the spouse or lineal decendants of the Holders of a
Security upon the death of such Holder. Subject to the foregoing, the Company
shall cause to be kept at the Corporate Trust Office
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of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 10.02 being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of each series of Securities and of transfers of Securities. The
Security Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all reasonable times,
the Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the "Security Registrar") for
the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company designated pursuant to Section 10.02, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denomination or denominations of a like
aggregate principal amount.
Furthermore, any Holder of the U.S. Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interest 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 Security shall be required to be reflected in a book
entry.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series of any authorized denomination and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer, exchange
or redemption of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.03, 3.04, 9.06, 10.05, 10.11 or 11.08 not
involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange a Security of any series during a period beginning at the opening of
business 15 days before the selection of Securities of that series to be
redeemed under Section 11.04 and ending at the close of business on
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the day of such mailing of the relevant notice of redemption, or (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.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any Global Security shall be exchangeable
pursuant to this Section 3.05 for Securities registered in the names of, and a
transfer of a Global Security of any series may be registered to, any Person
other than the Depository for such Security or its nominee only if (i) such
Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time such Depository ceases to
be a clearing agency registered under the Exchange Act, (ii) the Company
executes and delivers to the Trustee a Company Order that such Global Security
shall be so exchangeable and the transfer thereof so registrable or (iii) there
shall have occurred and be continuing an Event of Default or an event which,
with the giving of notice or lapse of time, or both, would constitute an Event
of Default with respect to the Securities of such series. Upon the occurrence in
respect of any Global Security of any series of any one or more of the
conditions specified in clauses (i), (ii) or (iii) of the preceding sentence or
such other conditions as may be specified as contemplated by Section 3.01 for
such series, such Global Security may be exchanged for Securities registered in
the names of, and the transfer of such Global Security may be registered to,
such Persons (including Persons other than the Depository with respect to such
series and its nominees) as such Depository shall direct. Notwithstanding any
other provision of this Indenture, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Security shall also be a Global Security and bear the legend specified in
Section 2.02 except for any Security authenticated and delivered in exchange
for, or upon registration of transfer of, a Global Security pursuant to the
preceding sentence.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 10.02;
provided, however, that each installment of interest may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 3.08, to the address of
such Person as it appears in the Security Register or (ii) transfer to an
account maintained by the payee located in the United States.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such defaulted interest ("Defaulted
Interest") may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date, and in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given in the
manner provided for in Section 1.09, not less than 10 days
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prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
given, such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08 Persons Deemed Owners.
Prior to the due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any, on) and (subject to Section 3.09) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund shall be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with its customary procedures and certification of
their disposal delivered to the Company unless by Company Order the Company
shall direct that canceled Securities be returned to it.
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SECTION 3.10 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of
Securities herein expressly provided for) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to any series of Securities when
(a) either
(1) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.08 and (ii) Securities of such series for whose
payment in Dollars has theretofore been deposited in trust with the
Trustee or any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(2) all such Securities of such series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity, or
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(iii) are to be called for redemption under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the entire
indebtedness on Securities of such series not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.06 and, if Dollars
shall have been deposited with the Trustee pursuant to subclause (ii) of clause
(1) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
SECTION 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
Dollars deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities of
the relevant series and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 5.01 Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) which
shall have occurred and is continuing:
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(1) The Company shall default in the payment of any interest on any Security
of that series when the same becomes due and payable, and such default continues
for a period of 30 days;
(2) The Company defaults in the payment of the principal of, or premium, if
any, any Security of that series when the same becomes due and payable at its
Stated Maturity, upon optional redemption, upon declaration or otherwise;
(3) The Company fails to comply with any of its agreements in the Securities
of that series or this Indenture (other than those referred to in (1) or (2)
above) and such failure continues for 60 days after the occurrence of such
failure;
(4) The Company 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 it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
(5) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for any substantial part of
its property; or
(C) orders the winding up or liquidation of the Company;
or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days; or
(6) any other Event of Default provided with respect to Securities of that
series.
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The term "Bankruptcy Law" means the Federal Bankruptcy Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.01(4)or 5.01(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then, subject to compliance with Section
13.07, and in every such case the Trustee or the Holders of not less than 25% in
principal amount at final maturity of the Outstanding Securities of that series
may, and the Trustee upon the request of the Holders of not less than 25% in
principal amount at final maturity of the Outstanding Securities shall, declare
the principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such amount described (or
specified portion thereof) shall become immediately due and payable. Even if an
Event of Default specified in Section 5.01(4) or 5.01(5) occurs and is
continuing, compliance with Section 13.07 must occur before all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to Securities
of any series (or of all series, as the case may be) has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal
amount at final maturity of the Outstanding Securities of that series (or of all
series, as the case may be), by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series (or of all
series, as the case may be),
(B) all unpaid principal of (and premium, if any, on) any Securities of
that series (or of all series, as the case may be) which has become due
otherwise than by such declaration of acceleration, and interest on such
unpaid principal at the rate prescribed therefor in the Securities,
(C) to the extent that payment of such interest is legally enforceable,
interest on overdue interest at the rate prescribed therefor in such
Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series (or of
all series, as the case may be), other than the non-payment of principal of (or
premium, if any, on) or interest on Securities of that series (or of all series,
as the case may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any installment of interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate prescribed therefor in the Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series (or of all
series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.06;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any, on,) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind,
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according to the amounts due and payable on such Securities for principal
(and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto;
provided that all sums due and owing to the Holders and the Trustee have
been paid in full as required by this Indenture.
SECTION 5.07 Limitation on Suits.
No Holder of any Securities of any series shall have any fight to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously complied with Section 13.07 and has
previously given written notice to the Trustee of a continuing Event of
Default;
(2) the Holders of not less than 25% in principal amount at final
maturity of the Outstanding Securities of that series in the case of any
Event of Default described in clause (1), (2) or (6) of Section 5.01, or
the Holders of not less than 25% in principal amount of all Outstanding
Securities in the case of any Event of Default described in clause (3), (4)
or (5) of Section 5.01, shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 30-day period by the Holders of a majority or
more in principal amount at final maturity of the Outstanding Securities of
that series in the case of any Event of Default described in clause (1), (2)
or (6) of Section 5.01, or, in the case of any Event of Default described
in clause (3), (4) or (5) Section 5.01, by the Holders of not less than a
majority in principal amount of all Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Securities of the same series, in the case of any Event of Default described
in clause (1), (2) or (6) of Section 5.01, or of Holders of all Securities in
the case of any Event of Default described in clause (3), (4) or (5) of Section
5.01, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Securities of
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the same series, in the case of any Event of Default described in clause (1),
(2) or (6) of Section 5.01, or of Holders of all Securities in the case of any
Event of Default described in clause (3), (4) or (5) of Section 5.01.
SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Twelve) and in
such Security of the principal of (and premium, if any, on) and (subject to
Section 3.09) interest on, such Security on the respective Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.08, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 5.12 Control by Holders.
With respect to the Securities of any series, the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of such
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, related to or arising under clause (1), (2)
or (6) of Section 5.01, and, with respect to all Securities, the Holders of
not less than a majority in principal amount of all Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercised any trust or power
conferred on the Trustee, not related to or arising under clause (1), (2) or (6)
of Section 5.01, provided that in each case
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not joining in
such direction.
SECTION 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in
principal amount of the Outstanding Securities may on behalf of the Holders of
all the Securities of such series waive any past default described in clause
(1), (2) or (6) of Section 5.01 (or, in the case of a default described in
clause (3), (4) or (5) of Section 5.01, the Holders of not less than a
majority in principal amount of all Outstanding Securities may waive any such
past default), and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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SECTION 5.14 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all as any portion of the principal,
premium, if any, or interest on the Securities, or which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 5.15 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by such
Holder's acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant, but
neither the provisions of this Section nor the Trust Indenture Act shall be
deemed to require any court to require an undertaking or to make such an
assessment in any suit instituted by the Company.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01 Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c)
notice of such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case of a
Default in the payment of the principal of (or premium, if any, on) or interest
on a Security of any series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders.
SECTION 6.02 Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d) which are
incorporated herein by reference:
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(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) 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 Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses (including reasonable fees of Trustee's counsel), and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
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The Trustee shall not be required to expend or risk its own funds or
otherwise incur any 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 for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 6.03 Trustee Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in any Statement of Eligibility and Qualification of Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION 6.04 May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to TIA Sections 3 10(b)
and 311, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.05 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.06 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel),
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except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any
of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any, on) or interest
on the Securities.
SECTION 6.07 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 6.08 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.09.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.09 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in principal amount of the Outstanding Securities of
such series, delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of the applicable
series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.07 and
shall fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of the applicable
series for at least six months, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove
the Trustee with respect to any one or more of such series of Securities, or
(ii) subject to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Security of that series for at least six months may, on behalf
of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee or Trustees with respect to Securities of that series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any reason,
with respect to the Outstanding Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to Securities of that
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of such
Holder and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities for such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities of any
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affected series in the manner provided for in Section 1.09. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.09 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION 6.10 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.11 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
any series of Securities,
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(1) the Trustee undertakes to perform such duties and only such
duties with respect to the Securities of that series as are specifically set
forth in this Indenture, and no implied covenants or obligations with
respect to the Securities of that series 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, with respect to the Securities of that series, 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; but in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to the Securities of that series, 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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders, given as provided in Section 5.12, relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any 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 for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities of such series, and the Trustee shall comply with Trust Indenture Act
Section 312(b).
Every Holder of Securities of any series, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b). The Trustee shall also transmit by mail to all Holders, in the manner
and to the extent provided in Trust Indenture Act Section 313(c), a brief report
in accordance with and with respect to the matters required by Trust Indenture
Act Section 313(b)(2).
SECTION 7.02 Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a
report dated as of such May 15 if required by TIA Section 313(a). A copy of each
such required report shall, at the time of transmission to Holders, be filed by
the Trustee with each stock exchange, if any, upon which Securities of any
series are listed.
SECTION 7.03 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; and
(2) file with the Trustee and send to the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, such
additional information, documents
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and reports with respect to compliance by the Company with the conditions
and covenants of this Indenture as may be required from time to time by such
rules and regulations.
The Company will promptly notify the Trustee when the Securities of any
series are listed on any stock exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER, OR LEASE
SECTION 8.01 The Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any other
corporation or sell, convey, transfer or lease its properties and assets, in one
transaction or a series of transactions, substantially as an entirety to any
Person or group of affiliated Persons if such transaction or series or
transactions would result in a sale, conveyance, transfer, or lease
substantially as an entirety of the properties and assets of the Company and its
consolidated subsidiaries to any Person or any group of affiliated Persons,
unless:
(i) the resulting, surviving or transferee Person or Persons
(the "Successor Company") shall be a Person organized and existing under
the laws of the United States of America, any State thereof or the
District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by an indenture supplemental thereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities and the Indenture;
(ii) immediately after giving effect to such transaction on a
pro forma basis, no Default shall have occurred and be continuing; and
(iii) 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 the Indenture.
SECTION 8.02 Successor Substituted.
(a) Upon any consolidation of the Company with or merger of the Company with
or into any other Person or any sale conveyance, transfer, lease or disposition
of all or substantially all of the properties and assets of the Company
substantially as an entirety to any Person in accordance with Section 8.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such sale conveyance, transfer, lease or disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
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Person named as "the Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner described in
Section 8.01), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and may be
dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form and substance satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities (and if such Events of Default are to be for the
benefit of less than all series of Securities, stating that such Events of
Default are being included solely for the benefit of such series); or
(4) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee pursuant to the requirements of Section 6.09;
(5) to add to, change or eliminate any of the provisions of this
Indenture with respect to one or more series of Securities, provided that
any such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective with respect to any such series only when there
is no Security of such series outstanding; or
(6) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any
other provisions
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with respect to matters or questions arising under this Indenture; provided
that such action shall not adversely affect the interests of the Holders.
SECTION 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Securities or of modifying in any manner the rights of the Holders under
this Indenture or the Securities; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which any Security or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 5.13, except
to increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee" and concomitant
changes in this Section and elsewhere, or the deletion of this proviso, in
accordance with the requirements of Section 6.09 and 9.01(4), or
(4) affect the ranking of the Securities in any way, or
(5) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company of any of its rights and obligations
under this Indenture; or
(6) amend or modify any of the provisions of Article Thirteen in any
manner adverse to the Holders.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof
SECTION 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.11) shall be fully protected in relying upon, an
Opinion of Counsel or an Officers' Certificate stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture and the Securities shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of a series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 10.01 Payment of Principal, Premium, if Any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any, on) and interest on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
SECTION 10.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New York,
an office or agency where Securities may be presented or surrendered for
payment, 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 corporate trust office of the
Trustee at c/o shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one or more
of such purposes. The Company will give prompt written notice to the Trustee of
any change in the location of any 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, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; 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 City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such other office or agency.
SECTION 10.03 Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on or
before each due date of the principal of (and premium, if any, on) or interest
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on each due date of the principal of (and premium, if any,
on), or interest on, any Securities of that
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series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any,
on) or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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SECTION 10.04 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year, a brief Officers' Certificate as to such officer's knowledge
of the Company's compliance with all conditions and covenants under this
Indenture.
SECTION 10.05 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 10.02 if before the time for such
compliance the Holders of more than 50% in principal amount of the Outstanding
Securities shall, by Act of such Holders, waive such compliance in such instance
with such term, provision or condition. In the event that there shall be
included in this Indenture any covenant, other than a covenant to pay principal,
premium (if any) and interest, solely for the benefit of one or more, but less
than all, series of Securities, then, unless otherwise expressly provided with
respect to such covenant, the Company may similarly omit in any particular
instance to comply with any term, provision or condition of such covenant if
before the time for such compliance the holders of more than 50% in principal
amount of all Outstanding Securities entitled to the benefit of such covenant,
by Act of such Holders, waive such compliance in such instance with such term,
provision, or condition. No such waiver contemplated by this Section 10.05 shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01 Right of Redemption.
The Securities of any series may be redeemed, at the election of the
Company, as a whole or from time to time in part, as provided in such Securities
or as specified as contemplated in Section 3.01.
SECTION 11.02 Applicability of Article.
Redemption of Securities of any series at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture (except
as may be specified otherwise as contemplated by Section 3.01 for Securities of
any series), shall be made in accordance with such provision and this Article.
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SECTION 11.03 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to Section
11.01 shall be evidenced by a Board Resolution. In case of any redemption
pursuant to Section 11.01, the Company shall, at least 45, but no more than 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed and
shall deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 11.04.
SECTION 11.04 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all
of the Securities of such series and of a specified tenor are to be redeemed),
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by lot or by such other method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
If the Company shall so direct, Securities registered in the name of the
Company or any Affiliates shall not be included in the Securities selected for
redemption.
SECTION 11.05 Notice of Redemption.
Notice of redemption shall be given in the manner provided for in Section
1.09 not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of a partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together with
accrued interest, if any, to the Redemption Date payable as provided in
Section 11. 07) will become due and payable upon each such Security, or the
portion thereof, to be redeemed, and that (unless the Company shall default
in payment of the redemption price) interest thereon will cease to accrue on
and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date
upon surrender of such Security, new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will issued; and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.06 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
Dollars sufficient to pay the Redemption Price of, and accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 11.07 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in
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accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided however, that unless otherwise specified as contemplated in
Section 3.01, installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
continue to accrete principal or bear interest from the Redemption Date at the
rate prescribed therefor in the Securities.
SECTION 11.08 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such purpose pursuant to
Section 10.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01 The Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to any series of Securities, elect to have either Section 12.02 or
Section 12.03 be applied to all Securities of such series Outstanding upon
compliance with the conditions set forth below in this Article Twelve.
SECTION 12.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 12.01 of the option applicable to
this Section 12.02, the Company shall be deemed to have been discharged from its
obligations with respect to all Securities of such series Outstanding on the
date the conditions set forth in Section 12.04 are satisfied (hereinafter,
"legal defeasance"). For this purpose, such legal defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Securities of such series Outstanding, which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 12.05 and the
other Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar
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as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Securities of such series Outstanding to
receive, solely from the trust fund described in Section 12.04 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any, on) and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 3.04, 3.05,
3.08, 10.02 and 10.03 and with respect to the Trustee under Section 6.06, (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(D) this Article Twelve. Subject to compliance with this Article Twelve, the
Company may exercise its option under this Section 12.02 notwithstanding the
prior exercise of its option under Section 12.03 with respect to such
Securities.
SECTION 12.03 Covenant Defeasance.
Upon the Company's exercise under Section 12.01 of the option applicable to
this Section 12.03, the Company shall be released from its obligations under any
covenant contained in Sections 8.01, 10.04, 11.01 and 11.02 with respect to the
Securities of such series Outstanding on and after the date the conditions set
forth in Section 12.04 are satisfied (hereinafter, "covenant defeasance"), and
such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any request, demand, authorization, direction, declaration, notice,
consent, waiver or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Securities of such series Outstanding, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 5.01, but, except as specified
above, the remainder of this Indenture and such Securities shall be unaffected
thereby.
SECTION 12.04 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 12.02
or Section 12.03 to the Securities of such series Outstanding:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.07 who shall agree to comply with the provisions of this
Article Twelve applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent
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public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of (and
premium, if any, on) and interest on such Securities on the Stated Maturity
(or Redemption Date, if applicable) of such principal (and premium, if any)
or installment of interest; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U. S.
Government Obligations to said payments with respect to such Securities.
Before or after such a deposit, the Company may give to the Trustee, in
accordance with Section 11.03 hereof, a notice of its election to redeem all
of such Securities at a future date in accordance with Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption
notice, if given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraphs (5) and (6) of Section 5.01 hereof are concerned, at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under any material
agreement or instrument to which the Company is a party or by which it is
bound.
(4) In the case of an election under Section 12.02, 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 shall confirm that, the
Holders of the Securities of such series Outstanding 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.
(5) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the legal defeasance under Section
12.02 or the covenant defeasance under Section 12.03 (as the case may be)
have been complied with.
SECTION 12.05 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 12.05,the "Trustee") pursuant to Section 12.04 in respect of the
Securities of such series Outstanding shall be held in trust and applied by the
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Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money and U.S. Government Obligations need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Securities of such series Outstanding.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.04
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent legal defeasance or covenant defeasance, as
applicable, in accordance with this Article.
SECTION 12.06 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 12.05 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and such Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.02 or 12.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 12.05; provided,
however, that no action taken in good faith by the Company after a deposit of
money or U.S. Government Obligations or both pursuant to Section 12.05 and prior
to the revival and reinstatement of obligations under this Indenture and the
Securities pursuant to this Section 12.06 shall constitute the basis for the
assertion of an Event of Default pursuant to Section 5.01; and provided
further, that if the Company makes any payment of principal of (or premium, if
any, on) or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.01 Agreement of Subordination.
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The Company irrevocably covenants and agrees, and each Holder of a Security,
by its acceptance thereof, likewise irrevocably covenants and agrees, that the
payment of the principal of and premium, if any, and interest on the Securities
is hereby expressly subordinated and subject in right of payment, to the extent
and in the manner hereinafter set forth, to the prior payment in full when due
of all Senior Indebtedness. The subordination described in this Article XIII is
irrevocable and unconditional in all circumstances. The provisions of this
Article XIII are made for the benefit of the holders of Senior Indebtedness, and
such holders shall, at any time, be entitled to enforce such provisions against
the Company, the Holders of the Securities or any other Person. No holder of any
Senior Indebtedness shall be deemed to owe any fiduciary duty or any other
obligation to any Holder of a Security now or at any time hereafter. The
Securities of any series are intended to rank pari passu with the notes issued
pursuant to the Stock Purchase Agreement.
SECTION 13.02 Terms of Subordination.
(a) In the event of (x) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relative to the Company or its creditors or its property, (y) any
proceeding for voluntary liquidation, dissolution or other winding up of the
Company whether or not involving insolvency or bankruptcy proceedings, or (z)
any assignment for the benefit of creditors generally or any marshaling of the
assets of the Company, then and in any such event:
(i) all Senior Indebtedness (including, without limitation, interest
accruing on such Senior Indebtedness after the date of filing a petition or
other action commencing any such proceeding) shall first be paid in full, or
have provision made for payment in full to the satisfaction of the holder of
any Senior Indebtedness, in its sole discretion, before the Holders of the
Securities are entitled to receive any payment on account of the principal
of or premium, if any, or interest on the Securities, and
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment, provided the rights of the holders of Senior
Indebtedness are not altered by such reorganization or readjustment, the
payment of which is subordinate, at least to the extent provided in this
Article XIII with respect to the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to the payment of all securities
issued in exchange therefor to the holders of Senior Indebtedness at the
time outstanding), to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article XIII, shall be
paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or other trustee or agent, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of and
premium, if any, and interest on, the Senior Indebtedness held or
represented by each, to the extent necessary to
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make payment in full of all Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or distribution, or provision
therefor, to the holders of such Senior Indebtedness.
(b) No payments on account of principal of or premium, if any, or interest
on the Securities shall be made unless full payment of amounts then due for
principal of (including, without limitation, any sinking fund payment), premium,
if any, and interest on all Senior Indebtedness has been made or otherwise duly
provided for to the satisfaction of each holder of any Senior Indebtedness, in
its sole discretion.
(c) In the event and during the continuation of any default or event of
default in respect of any Senior Indebtedness or under any agreement under which
any Senior Indebtedness was issued continuing beyond the period of grace, if
any, specified in such agreement, then, unless and until such default shall have
been cured or waived or shall have ceased to exist, no payment shall be made by
the Company and no application of funds shall be made with respect to the
principal of or premium, if any, or interest on the Securities.
(d) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, provided
that the rights of the holders of Senior Indebtedness are not altered by such
reorganization or readjustment, the payment of which is subordinate, at least to
the extent provided in this Article XIII with respect to the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to the payment of
all securities issued in exchange therefor to the holders of Senior Indebtedness
at the time outstanding) shall be received by the Trustee or the Holder of any
Security during the continuance of any event specified in Section 13.02(a),
13.02(b) or 13.02(c) prohibiting such payment and before all Senior Indebtedness
is paid in full, or provision made for its payment to the satisfaction of each
holder of any Senior Indebtedness, in its sole discretion, such payment or
distribution shall be held in trust for the benefit of, and shall be immediately
paid over to the holders of Senior Indebtedness (or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been
issued), upon their written request, remaining unpaid or unprovided for as
provided in Section 13.02(a)(ii), for application to the payment of such Senior
Indebtedness until all such Senior Indebtedness shall have been paid in full,
after giving effect to any concurrent payment or distribution, or provision
therefor, to the holders of such Senior Indebtedness.
(e) Subject to the payment in full of all Senior Indebtedness and the
irrevocable and complete termination of all commitments and obligations to issue
or fund any Senior Indebtedness (and not before such time), the Holders of the
Securities shall be subrogated equally and ratably with the holders of all Pari
Passu Debt to all rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of and premium, if
any, and interest on the Securities shall be paid in full; and, for purposes of
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of cash, property or securities distributable or paid over to the
holders of Senior
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Indebtedness under the provisions hereof to which the Holders of the Securities,
holders of Pari Passu Debt, the Trustee or any trustee of Pari Passu Debt, would
be entitled except for the provisions of this Article XIII shall, as between
the Company, its creditors other than the holders of Senior Indebtedness, the
Holder of the Securities and holders of Pari Passu Debt, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article XIII are and are intended solely
for the purpose of defining the relative rights of Holders of the Securities,
the holders of Pari Passu Debt and the holders of the Senior Indebtedness.
(f) Nothing contained in this Article XIII or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness (and the persons and
entities committed or obligated to issue or fund any Senior Indebtedness), and
the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holder of the Securities, the principal of and
premium, if any, and interest on the Securities, as and when the same shall
become due and payable in accordance with the terms thereof, or is intended to
or shall affect the relative rights of the Holders of the Securities and other
creditors of the Company other than the holders of the Senior Indebtedness (and
the persons and entities committed or obligated to issue or fund any Senior
Indebtedness), nor shall anything in the Securities or the Indenture (other than
Section 13.07 hereof) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon the happening
of any Event of Default, subject to the rights, if any, under this Article XIII
of the holders of Senior Indebtedness (and the persons and entities committed or
obligated to issue or fund any Senior Indebtedness) in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
(g) The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article XIII or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor, and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.11, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
at its Corporate Trust Office the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment in
cash of the principal of, or premium, if any or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date. Upon any payment or distribution of assets of the Company
referred to in this Article XIII, the Trustee, subject to the provisions of
Section 6.11, and the Holders of the Securities shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are
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pending or a certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee or the Holder of any Security for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XIII. If the Trustee or the Holder of any Security determines, in its reasonable
discretion, that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section 13.02, the Trustee or such Holder of any
Security, as the case may be, may request such person to furnish evidence to the
reasonable satisfaction of the Trustee or such Holder of any Security, as the
case may be, as to the amount of Senior Indebtedness held by such person, as to
the extent to which such person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of such person under
this Section 13.02, and if such evidence is not furnished, the Trustee or such
Holder of any Security, as the case may be, may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment. The Trustee or such Holder of any Security, as the case may be, shall
be entitled to rely on the delivery to it of a written notice by a person
representing himself, herself or itself, to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that notice has been given
by a holder of Senior Indebtedness or a trustee on behalf of any such holder.
With respect to the holders of Senior Indebtedness, each of the Trustee and the
Holders of the Securities undertakes to perform or to observe only such of its
covenants and obligations as are set forth in this Article XIII, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture or the Securities against the Trustee or any
Holder of any Security. The Holders of the Securities shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and in the absence of
receipt of written request as provided for herein shall not be liable to any
such holder if any of them shall retain or pay over to any other person, money
or assets to which any holder of Senior Indebtedness shall be entitled pursuant
to this Article XIII.
(h) Without notice to or the consent of the Trustee or any Holder of any
Security, the holders of the Senior Indebtedness or the Persons or entities
committed or obligated to issue or fund any Senior Indebtedness may at any time
and from time to time, without impairing or releasing the subordination herein
made, change the manner, place or terms of payment, or change or extend the time
of payment of or renew or alter the Senior Indebtedness or the commitment or
obligation to issue or fund any Senior Indebtedness, or amend or supplement in
any manner any instrument evidencing the Senior Indebtedness or the commitment
or obligation to issue or fund any Senior Indebtedness, any agreement pursuant
to which the Senior Indebtedness was issued or incurred or any instrument
securing or relating to the Senior Indebtedness or the commitment or obligation
to issue or fund any Senior Indebtedness; release any Person liable in any
manner for the payment or collection of the Senior Indebtedness; exercise or
refrain from exercising any rights in respect of the Senior Indebtedness against
the Company or any other Person; apply any money or other property paid by any
Person or released in any manner to the Senior Indebtedness; accept or release
any security for the Senior Indebtedness; sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; or exercise or refrain from exercising any rights against the
Company or any other Person; all without thereby impairing in any respect the
rights of such holders of Senior Indebtedness as provided in this Article XIII.
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SECTION 13.03 No Waiver or Amendment of Subordination Provision.
(a) No right of any Person or future holder of any Senior Indebtedness to
enforce subordination, as herein provided, shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture or any Security, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
(b) The provisions of Article XIII of this Indenture shall not be amended
or modified in any respect without the prior written consent of each holder of
Senior Indebtedness at the time of the amendment or modification.
SECTION 13.04 Payments to Holders.
Except as provided in Section 13.02, nothing contained in this Article XIII
or elsewhere in this Indenture or any Security shall affect the obligation of
the Company to make, or prevent the Company from making, at any time, payments
of principal of or premium, if any, or interest on the Securities.
SECTION 13.05 Authorization of Holders to Trustee to Effect Subordination.
Each Holder of a Security, by its acceptance thereof, irrevocably authorizes
and directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XIII and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 13.06 All Provisions of the Indenture Qualified by Article XIII.
Notwithstanding anything herein contained to the contrary, all the
provisions of this Indenture shall, except as otherwise provided herein, be
subject to the provisions of this Article XIII, so far as the same may be
applicable thereto.
SECTION 13.07 Limitation on Remedies of Holders.
Prior to the full and final repayment of all Senior Indebtedness, neither
the Holders of the Securities nor the Trustee nor any other agent or trustee
acting on behalf of any Holder of a Security shall accelerate the payment
obligations of the Securities or take any other remedial actions in regard
hereto or thereto, notwithstanding any default by the Company hereunder, without
first notifying all holders of Senior Indebtedness and obtaining their written
consent. In the event such consent is given, the Holders of the Securities or
the Trustee (or any other agent or trustee acting on behalf of any Holder of a
Security) shall inform the holders of Senior Indebtedness of such actions as
they are taken and the results thereof.
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SECTION 13.08 Further Assurances.
Each Holder of a Security, by its acceptance thereof, hereby agrees to
execute, verify, deliver and file such proofs of claims, consents, assignments
or waivers as are reasonably required to effectuate the provisions of this
Article XIII.
SECTION 13.09 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article XIII or
otherwise, except in the case of gross negligence or wilful misconduct on the
part of the Trustee.
SECTION 13.10 Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XIII with respect to any Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article XIII shall apply to claims of, or payments to, the
Trustee or its agent or counsel under or pursuant to Section 6.06.
SECTION 13.11 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article XIII shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XIII in addition to or in place of the Trustee; provided,
however, that Section 13.10 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01 Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or premium, if
any) or interest on any Securities or any part thereof, or for any claim based
thereon or otherwise in respect thereof,
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or of the indebtedness represented thereby, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company, or of any predecessor or successor Person, either directly or through
the Company or any such predecessor or successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, it being expressly agreed and understood
that this Indenture and all the Securities are solely corporate obligations, and
that no personal liability whatsoever shall attach to, or be insured by, any
such incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any predecessor or successor Person, either
directly or through the Company or any such predecessor or successor Person,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Securities or to be implied herefrom or therefrom; and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of this Indenture and
the issue of the Securities; providing however, that nothing herein or in the
Securities contained shall be taken to prevent recourse to and the enforcement
of the liability, if any, of any stockholder or subscriber to capital stock of
the Company upon or in respect of shares of capital stock not fully paid up.
-61-
<PAGE>
This Indenture may be signed in any number of counterparts each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHERE OF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
GROUP MAINTENANCE AMERICA CORP.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-62-
<PAGE>
EXHIBIT A
[If issued as a global security, insert - THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY
A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE OF THE DEPOSITORY TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY) MAY BE
REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
GROUP MAINTENANCE AMERICA CORP.
[___%] or [Floating Rate] Notes due _________
No. _________ CUSIP No.______________
GROUP MAINTENANCE AMERICA CORP., a corporation duly organized and existing
under the laws of Texas (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________, the principal sum of
________________ DOLLARS ($__________) on ____________, and to pay interest
thereon from _________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [If Fixed Rate, insert - semi-
annually in arrears __________ and __________ in each year, commencing
___________, at the rate of ____% per annum, until the principal hereof is paid
or made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ___________or ____________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.] [If Floating Rate, insert - quarterly in arrears on
_________, _________, ________, and _____________, in each year, commencing
______________, at the rate per annum determined as provided herein, until the
principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the date 15 calendar days prior to such Interest Payment Date.
Interest payable at maturity will be payable to the person to whom principal
shall be payable.] Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such
<PAGE>
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose pursuant to the Indenture hereinafter referred to in the Borough of
Manhattan, the City of New York, State of New York, in such immediately
available funds of the United States of America as at the time of payment are
legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ____________
GROUP MAINTENANCE AMERICA
CORP.
By:
-----------------------------
Title:
-2-
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: ____________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
------------------------------
Authorized Signatory
-3-
<PAGE>
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ______________, 1998, as supplemented
from time to time (herein called the "Indenture"), between the Company and State
Street Bank and Trust Company, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitation of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $_____________.
[If Floating Rate, insert - Interest will be payable quarterly on
_________, ____________, ___________ and ______________, of each year (each, an
"Interest Payment Date"), commencing ______________ to the persons in whose
names the Securities are registered at the close of business on the date 15
calendar days prior to such Interest Payment Date. Interest payable at maturity
will be payable to the person to whom principal shall be payable. The "Interest
Period" with respect to a Security is each successive period from and including
an Interest Payment Date with respect to such Security to but excluding the next
Interest Payment Date or the maturity date, as the case may be; provided,
however, if such Interest Payment Date would not be a Business Day, then such
Interest Payment Date and the first day of the next succeeding Interest Period
will be the next succeeding Business Day, except that if such Business Day is in
the next succeeding calendar month, such Interest Payment Date and the first day
of the next succeeding Interest Period will be the immediately preceding
Business Day. The "Interest Determination Date" for an Interest Period is two
London Banking Days (as defined below) preceding the first day of such Interest
Period.
The interest rate on the Securities for any Interest Period will be
effective as of the first day of such Interest Period. The interest rate on the
Securities for each Interest Period will be determined on the Interest
Determination Date for such Interest Period and will be a per annum rate equal
to three-month U.S. dollar LIBOR (determined as set forth below) plus ___%.
Interest will be computed on the basis of a 360-day year and the actual number
of days in the applicable Interest Period.
LIBOR will be determined on the basis of the offered rates for deposits in
U.S. dollars for a three-month period on the second London Banking Day
immediately following that Interest Determination Date that appears on Telerate
Page 3750 (as defined below) as of 11:00 a.m. (London time) on that Interest
Determination Date. If such rate does not appear on Telerate Page 3750 on such
Interest Determination Date, LIBOR will be determined on the basis of the rates
at which deposits in U.S. dollars for a three-month period commencing on the
second London Banking Day immediately following that Interest Determination Date
and in a principal amount equal to an amount of not less than U.S. $1 million
that is representative for a single transaction in such market at such time, are
offered to prime banks in the
-4-
<PAGE>
London interbank market by four major banks in the London interbank market
selected by the Calculation Agent (as defined below), after consultation with
the Company, at approximately 11:00 a.m., London time, on that Interest
Determination Date.
The Calculation Agent will request the principal London office of each of
such banks to provide a quotation of its rate. If at least two such quotations
are provided, LIBOR in respect of that Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are provided,
LIBOR in respect of that Interest Determination Date will be the arithmetic mean
of the rates quoted by three major money center banks in The City of New York
selected by the Calculation Agent (after consultation with the Company) at
approximately 11:00 a.m., New York City time, on that Interest Determination
Date for loans in U.S. dollars to leading European banks for a three-month
period commencing on the second London Banking Day immediately following that
Interest Determination Date and in a principal amount equal to an amount of not
less than U.S. $1 million that is representative for a single transaction in
such market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR for the applicable period will be the same as LIBOR for the
preceding Interest Period on such Interest Determination Date.
As used herein:
"Business Day" means any day which is not a Saturday or Sunday and which is
not a legal holiday or a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to be closed that is
also a London Banking Day.
"Calculation Agent" means ___________, the Trustee named in the Indenture,
or such other entity as may be selected from time to time by the Company to
perform the functions of the Calculation Agent set forth herein.
"London Banking Day" means a day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
"Telerate Page 3750" means the display designated on "Page 3750" on the Dow
Jones Markets Limited (or such other page as may replace Page 3750 on that
service or such other service or services as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollars deposits).
All percentages resulting from any calculations of any interest rate for
the Securities will be rounded, if necessary, to the nearest one hundred-
thousandth of a percentage point, with five one-millionths of a percentage point
rounded upward, and all dollar amounts used in or resulting from such
calculation will be rounded to the nearest cent (with one-half cent being
rounded upward).
The Calculation Agent will, upon the request of the Holder of any Security,
provide the interest rate then in effect. All calculations made by the
Calculation Agent in the absence of
-5-
<PAGE>
manifest error shall be conclusive for all purposes and binding on the Company
and the Holders of the Securities.]
The Company retains the right to set-off any amounts owed to it pursuant to
the agreement pursuant to which an Acquisition is made against amounts owed to
it by the Holder and payee hereof, including, without limitation, in connection
with (i) post-closing adjustments to the purchase price, if any, paid by the
Company to the Holder and payee pursuant to such agreement and certain expenses
related thereto, (ii) at the Company's election, obligations to the Holder and
payee under certain circumstances to purchase uncollected accounts receivable
and retainages, and (iii) indemnification obligations of the Holder and payee
owed to the Company.
The Securities of this series shall not be subject to a sinking fund
requirement.
The Securities of the series may be prepaid at any time, in whole or in
part, without penalty, at the option of the Company.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the unpaid principal of the Securities of this series
may, subject to the requirements of the Indenture for giving notice to and
receiving consent of holders of the Company's Senior Indebtedness, be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of more than 50% in principal amount of all Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all the Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer herefor or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Company on this Security upon compliance by the Company with
certain conditions set forth therein, which provisions apply to this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series shall have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to the Securities of this series, the Holders of not
less than
-6-
<PAGE>
25% in principal amount of the Outstanding Securities of this series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request, and the Trustee shall
have failed to institute such proceeding within 60 days; provided, however, that
such limitations shall not apply to a suit instituted by the Holder hereof for
the enforcement of payment of the principal of (or premium, if any) or interest
on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall, without the consent of the Holder, alter or impair the
right of the Holders, which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed, except
for Section 114 of the Indenture (which limits interest to the maximum amount
permissible by law), the provisions of which are incorporated herein by
reference.
This Security may not be transferred except upon the written consent of the
Company or to the spouse or lineal descendants of the Holder hereof upon the
death of such Holder. In such case, as provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or its attorney duly authorized in writing, and thereupon one
or more new Securities of this series, and of like tenor, of authorized
denominations and for the same aggregate unpaid principal amount, shall be
issued to the designated transferee or transferees.
No service charge shall be made for any such exchange or registration of
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a CUSIP number to be
printed on this Security as a convenience to the Holder hereof. No
representation is made as to the accuracy of such number and reliance may be
placed only on the other identifying information printed hereon.
-7-
<PAGE>
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
-8-
<PAGE>
ASSIGNMENT FORM
(IF ALLOWED BY THE COMPANY PURSUANT TO THE TERMS OF THE INDENTURE)
I or we assign and transfer this Security to
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
______________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint ______________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated:__________________ Signed:__________________________________
(Sign exactly as name appears above or on
the other side of this Security)
Signature Guarantee:_______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
-9-
<PAGE>
EXHIBIT 5
December 22, 1998
Group Maintenance America Corp.
Eight Greenway Plaza, Suite 1500
Houston, Texas 77046
Ladies and Gentlemen:
We have acted as counsel to Group Maintenance America Corp., a Texas
corporation (the "Company"), in connection with the preparation of its
Registration Statement on Form S-4 (the "Registration Statement") filed by the
Company under the Securities Act of 1933, as amended (the "Securities Act").
The Registration Statement relates to the offering and sale by the Company of
up to $50,000,000 aggregate principal amount of its subordinated notes (the
"Notes"), up to $10,000,000 aggregate offering price of its preferred stock,
$.001 par value (the "Preferred Stock"), up to 2,000,000 warrants (the
"Warrants") to purchase Common Stock, par value $.001 per share (the "Common
Stock"), issuable upon exercise of such Warrants and up to 2,000,000 shares of
its Common Stock (together, the "Securities"), which the Company will issue and
sell from time to time in connection with business combinations.
We have examined originals or copies of: (i) the Articles of Incorporation of
the Company, as amended, (ii) the Bylaws of the Company, as amended; (iii)
certain resolutions of the Board of Directors of the Company; (iv) the
Indenture, to be dated as of December 31, 1998 by and between the Company and
State Street Bank and Trust Company (the "Trustee") pursuant to which the Notes
will be issued; and (v) such other documents and records as we have deemed
necessary and relevant for the purposes hereof. We have relied upon
certificates of public officials and officers of the Company as to certain
matters of fact relating to this opinion and have made such investigations of
law as we have deemed necessary and relevant as a basis hereof. We have not
independently verified any factual matter relating to this opinion. In such
examination, we have assumed the genuineness of all signatures, the
authenticity of all documents, certificates and records submitted to us as
copies, and the conformity to original documents, certificates and records of
all documents, certificates and records submitted to us as copies. We have also
assumed that (i) the Registration Statement, and any amendments thereto
(including post-effective amendments), will have become effective; (ii) all
Securities will be issued and sold in compliance with applicable federal and
state securities laws and in the manner stated in the Registration Statement
and any appropriate prospectus supplement; (iii) the Indenture has been duly
executed and delivered by a duly authorized officer of the Trustee.
Based upon the foregoing, and subject to the limitations and assumptions set
forth herein, and having due regard for such legal considerations as we deem
relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Texas.
2. The Notes are duly authorized, and when issued and delivered by the
Company against payment therefor as described in the Registration
Statement pursuant to Board authorization of the transactions
contemplated by such Registration Statement, such Notes will be validly
issued and legally binding obligations of the Company entitled to the
benefits of the Indenture.
3. The shares of Preferred Stock are duly authorized and, when the final
terms of any series thereof have been duly established and approved
pursuant to Board authorization and when issued and delivered by the
Company against payment therefor as described in the Registration
Statement pursuant to Board authorization of the transactions
contemplated by such Registration Statement, such shares will be duly
and validly issued, fully paid and nonassessable.
4. The Warrants are duly authorized and, when the final terms thereof have
been duly established and approved pursuant to Board authorization and
when issued and delivered by the Company against
<PAGE>
Group Maintenance America Corp.
December 22, 1998
Page 2
payment therefor as described in the Registration Statement pursuant to
Board authorization of the transactions contemplated by such
Registration Statement, such Warrants will be validly issued and legally
binding obligations of the Company.
5. The shares of Common Stock (including any Common Stock issuable upon
exercise of the Warrants) are duly authorized, and when issued and
delivered by the Company against payment therefor as described in the
Registration Statement pursuant to Board authorization of the
transactions contemplated by such Registration Statement, such shares
will be duly and validly issued, fully paid and nonassessable.
The foregoing opinion is based on and is limited to the laws of the State of
Texas that pertain specifically to for-profit corporations, and we render no
opinion with respect to any other law.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5 of the Registration Statement. By giving such
consent, we do not admit that we are included within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules
and regulations issued thereunder.
Very truly yours,
Bracewell & Patterson, L.L.P.
<PAGE>
EXHIBIT 12
GROUP MAINTENANCE AMERICA CORP.
RATIOS OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE NINE FOR THE TEN FOR THE YEARS ENDED
MONTHS ENDED MONTHS ENDED FEBRUARY 28 OR 29,
SEPTEMBER 30, DECEMBER 31, ---------------------------
1998 1997 1997 1996 1995 1994
------------- ------------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before
income tax provision.. $29,980 $ (810) $3,908 $3,790 $1,700 $3,377
======= ====== ====== ====== ====== ======
Fixed charges charged
to expense:
Rental expense (1)... $ 2,236 $ 575 $ 432 $ 493 $ 306 $ 271
Interest expense..... 3,013 1,542 82 -- -- --
------- ------ ------ ------ ------ ------
Total fixed charges
charged to
expense........... $ 5,249 $2,117 $ 514 $ 493 $ 306 $ 271
======= ====== ====== ====== ====== ======
Income before income
tax provision and
fixed charges......... $35,229 $1,307 $4,422 $4,283 $2,006 $3,648
======= ====== ====== ====== ====== ======
Ratio of earnings to
fixed charges and to
fixed charges and
preferred stock
dividends(2).......... 6.7 --(3) 8.6 8.7 6.6 13.5
======= ====== ====== ====== ====== ======
</TABLE>
- --------
(1) Rental expense fixed charges comprise one-fourth of all rental expense
incurred during the periods. This is deemed by management to be
representative of the interest factor of rental payments.
(2) There were no preferred stock dividend payments during the periods.
(3) In the historical ten months ended December 31, 1997, earnings were
inadequate to cover fixed charges in the amount of $0.8 million due to the
impact of the $7.0 million of non-receiving non-cash compensation expense.
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF
GROUP MAINTENANCE AMERICA CORP.
AS OF NOVEMBER 30, 1998
A-1 Appliance & Air Conditioning, Inc. (Texas)
A-1 Mechanical of Lansing, Inc. (Michigan)
AA Advance Air, Inc. (Florida)
A-ABC Appliance, Inc. (Texas)
AA JARL, Inc. (Texas) (dba Jarrell Plumbing)
Air Conditioning Engineers, Inc. (Michigan)
Air Conditioning, Plumbing & Heating Service Co., Inc. (Colorado)
Aircon Energy Incorporated (California)
Airtron, Inc. (Delaware)
Airtron of Central Florida, Inc. (Florida)
All Service Electric, Inc. (Florida)
Arkansas Mechanical Services, Inc. (Arkansas)
Atlantic Industrial Constructors, Inc. (Virginia)
Barr Electric Corp. (Illinois)
Callahan Roach Products & Publications, Inc. (Colorado)
Central Air Conditioning Contractors, Inc. (Delaware)
Central Carolina Air Conditioning Company (North Carolina)
Charlie Crawford, Inc. (Texas)
Clark Converse Electric Service, Inc. (Ohio)
Colonial Air Conditioning Company (Delaware)
Commercial Air Holding Company (Maryland)
Commercial Air, Power & Cable, Inc. (Maryland)
Continental Electrical Construction Co. (Delaware)
Costner Brothers, Inc. (South Carolina)
Divco, Inc. (Washington)
Dynamic Software Corporation (Maryland)
Evans Services, Inc. (Alabama)
The Farfield Company (Delaware)
Ferguson Electric Corporation (Delaware)
Gentzler Electrical Contractors, Inc. (Delaware)
Gilbert Mechanical Contractors, Inc. (Minnesota)
GroupMAC Holding Corp. (Delaware)
GroupMAC Management Co. (Delaware)
HPS Plumbing Services, Inc. (California)
Hallmark Air Conditioning, Inc. (Texas)
Hungerford Mechanical Corporation (Virginia)
J.D. Steward Air Conditioning, Inc. (Colorado)
Jerry Albert Air Conditioning, Inc. (Texas)
<PAGE>
K & N Plumbing, Heating and Air Conditioning, Inc. (Texas)
Laney's, Inc. (Delaware)
Linford Service Co. (California)
MacDonald-Miller Co., Inc. (Washington)
MacDonald-Miller Industries, Inc. (Washington)
MacDonald-Miller Service, Inc. (Washington)
Masters, Inc. (Maryland)
Mechanical Interiors, Inc. (Texas)
Merritt Island Air & Heat, Inc. (Delaware)
New Construction Air Conditioning, Inc. (Michigan)
Noron, Inc. (Ohio)
Paul E. Smith Co., Inc. (Indiana)
Phoenix Electric Company (Delaware)
Ray and Claude Goodwin, Inc. (Florida)
Reliable Mechanical, Inc. (Delaware)
Romanoff Electric Corp. (Ohio)
Sibley Services, Incorporated (Tennessee)
Southeast Mechanical Service, Inc. (Florida)
Stephen C. Pomeroy, Inc. (Delaware)
Sterling Air Conditioning, Inc. (Texas)
Sun Plumbing, Inc. (Florida)
Team Mechanical, Inc. (Utah)
Trinity Contractors, Inc. (Delaware)
United Acquisition Corp. (Iowa) (dba United Service Alliance)
Valley Wide Plumbing and Heating, Inc. (Colorado)
Van's Comfortemp Air Conditioning, Inc. (Florida)
Vantage Mechanical Contractors, Inc. (Maryland)
Wade's Heating and Cooling, Inc. (Florida)
Wiegold & Sons, Inc. (Florida)
Willis Refrigeration, Air Conditioning & Heating, Inc. (Ohio)
Yale Incorporated (Minnesota)
2
<PAGE>
EXHIBIT 23.2
The Board of Directors
Group Maintenance America Corp.:
We consent to the use of our reports incorporated by reference herein and to
the reference to our firm under the heading "Experts" in this prospectus.
KPMG Peat Marwick LLP
Houston, Texas
December 22, 1998
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Group Maintenance America Corp. of our report dated July 24, 1997 (relating
to the financial statements of Masters, Inc.) appearing in a Form 8-K of Group
Maintenance America Corp. dated December 22, 1998.
We also consent to the reference to us under the heading "Experts" in this
Registration Statement.
Deloitte & Touche LLP
Washington, D.C.
December 22, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Prospectus
constituting part of this Registration Statement of Group Maintenance America
Corp., on Form S-4 of our report dated August 7, 1997, except for Notes 2 and
11, as to which the date is August 18, 1997, relating to the financial
statements of MacDonald-Miller Industries, Inc., which appear in a Form 8-K of
Group Maintenance America Corp. dated December 22, 1998. We also consent to the
reference to our Firm under the heading "Experts" in this Registration
Statement.
Moss Adams L.L.P.
Seattle, Washington
December 22, 1998
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Ronald D. Bryant
-----------------------------
Ronald D. Bryant
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ David L. Henninger
-----------------------------
David L. Henninger
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Chester J. Jachimiec
-----------------------------
Chester J. Jachimiec
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Timothy Johnston
-----------------------------
Timothy Johnston
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Andrew Jeffrey Kelly
-----------------------------
Andrew Jeffrey Kelly
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Donald L. Luke
-----------------------------
Donald L. Luke
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Thomas B. McDade
-----------------------------
Thomas B. McDade
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Lucian L. Morrison
-----------------------------
Lucian L. Morrison
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Robert Munson III
-----------------------------
Robert Munson III
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ James P. Norris
-----------------------------
James P. Norris
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ Fredric J. Sigmund
-----------------------------
Fredric J. Sigmund
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ John M. Sullivan
-----------------------------
John M. Sullivan
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed
registration by Group Maintenance America Corp., a Texas corporation (the
"Company"), of (i) 2,000,000 shares of the Company's Common Stock, par value
$.001 per share (the "Common Stock"), (ii) $10,000,000 of the Company's
Preferred Stock, par value $.001 per share (the "Preferred Stock"), (iii) debt
securities of the Company ("Debt Securities"), including debt securities
convertible into shares of Common Stock and Preferred Stock, in an aggregate
principal amount of $50,000,000 and (iv) warrants to purchase 2,000,000 shares
of Common Stock, to be issued by the Company in connection with proposed
acquisitions, the undersigned officer or director of the Company hereby
constitutes and appoints Randolph W. Bryant and Darren B. Miller, and each of
them (with full power to each of them to act alone), the undersigned's true and
lawful attorney-in-fact and agent, for the undersigned and on the undersigned's
behalf and in the undersigned's name, place and stead, in any and all
capacities, to sign, execute and file a registration statement relating to such
securities to be filed with the Securities and Exchange Commission on such Form
as, in the opinion of counsel for the Company, is appropriate, together with all
amendments thereto, with all exhibits and any and all documents required to be
filed with respect thereto with any regulatory authority, granting unto said
attorneys, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same as fully to all intents and purposes as the
undersigned might or could do if personally present, hereby ratifying and
confirming all the said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of
attorney this 21st day of December, 1998.
/s/ James D. Weaver
-----------------------------
James D. Weaver
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
GROUP MAINTENANCE AMERICA CORP.
(Exact name of obligor as specified in its charter)
TEXAS 76-0535259
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8 GREENWAY PLAZA, SUITE 1500
HOUSTON, TX 77046
(Address of principal executive offices) (Zip Code)
SUBORDINATED NOTES
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1) filed
with the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit 2
to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-
17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein
by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
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<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS
IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Hartford and The
State of Connecticut, on the 18th of December 1998.
STATE STREET BANK AND TRUST COMPANY
By:_______________________________
NAME MICHAEL M. HOPKINS
TITLE VICE PRESIDENT
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<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by GROUP
MAINTENANCE AMERICA CORP.. of its SUBORDINATED NOTES, we hereby consent that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By:
__________________________________
NAME MICHAEL M. HOPKINS
TITLE VICE PRESIDENT
DATED: DECEMBER 18, 1998
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<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business September 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin................................................ 2,008,956
Interest-bearing balances......................................................................... 12,286,877
Securities.................................................................................................. 9,654,241
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary............................................................... 10,922,779
Loans and lease financing receivables:
Loans and leases, net of unearned income .................. 7,457,235
Allowance for loan and lease losses........................ 82,851
Allocated transfer risk reserve............................ 0
Loans and leases, net of unearned income and allowances........................................... 7,374,384
Assets held in trading accounts............................................................................. 1,898,804
Premises and fixed assets................................................................................... 513,372
Other real estate owned..................................................................................... 100
Investments in unconsolidated subsidiaries.................................................................. 484
Customers' liability to this bank on acceptances outstanding................................................ 48,563
Intangible assets........................................................................................... 220,613
Other assets................................................................................................ 1,333,210
----------
Total assets................................................................................................ 46,262,383
==========
LIABILITIES
Deposits:
In domestic offices............................................................................... 9,557,938
Noninterest-bearing.................................... 7,158,356
Interest-bearing....................................... 2,399,582
In foreign offices and Edge subsidiary............................................................ 18,451,054
Noninterest-bearing.................................... 429,797
Interest-bearing....................................... 18,021,257
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary............................................................... 12,023,438
Demand notes issued to the U.S. Treasury.................................................................... 451,424
Trading liabilities............................................................................... 1,582,933
Other borrowed money........................................................................................ 323,782
Subordinated notes and debentures........................................................................... 0
Bank's liability on acceptances executed and outstanding.................................................... 48,563
Other liabilities........................................................................................... 1,226,129
Total liabilities........................................................................................... 43,665,261
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................................... 0
Common stock................................................................................................ 29,931
Surplus..................................................................................................... 462,782
Undivided profits and capital reserves/Net unrealized holding gains (losses)................................ 2,080,148
Net unrealized holding gains (losses) on available-for-sale securities............................ 27,376
Cumulative foreign currency translation adjustments......................................................... (3,115)
Total equity capital........................................................................................ 2,597,122
----------
Total liabilities and equity capital........................................................................ 46,262,383
----------
</TABLE>
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<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
