EXHIBIT 4.5
[FACE OF UNIT]
MSX INTERNATIONAL, INC. AND MSX INTERNATIONAL LIMITED
Units
Consisting of
$860 Principal Amount of 11% Senior Secured Notes Due 2007 of MSX
International, Inc. and
$140 Principal Amount of 11% Senior Secured Notes Due 2007 of MSX
International Limited
No. ___
CUSIP No. _________ Certificate for _______ Units
Each of MSX International, Inc., a Delaware corporation (the
"Company"), which term includes any successor corporation, and MSX International
Limited, a company organized under the laws of England and Wales ("MSXI
Limited"), which term includes any successor company, hereby certifies that
is the owner of Units as described above,
transferable only on the books of the Company and MSXI Limited by the Holder
thereof in person or by his or her duly authorized attorney on surrender of this
Certificate properly endorsed. Each Unit consists of $860 principal amount of
11% Senior Secured Notes due 2007 of the Company and $140 principal amount of
11% Senior Secured Notes due 2007 of MSXI Limited (together, the "Notes"). This
Unit is issued pursuant to the Indenture, dated as of August 1, 2003 among the
Company, MSXI Limited, the Guarantors and BNY Midwest Trust Company, as Trustee,
(the "Indenture") and is subject to the terms and provisions contained therein,
to all of which terms and provisions the Holder of this Unit Certificate
consents by acceptance hereof. The terms of the Notes and the Note Guarantees
are governed by the Indenture, and are subject to the terms and provisions
contained therein, to all of which terms and provisions the Holder of this Unit
Certificate consents by acceptance hereof.
Reference is made to the further provisions of this Unit
Certificate contained herein, which will for all purposes have the same effect
as if set forth at this place. Copies of the Indenture are on file at the office
of the Company and MSXI Limited and are available to any Holder on written
request and without cost.
The Notes will not trade separately unless (i) an Event of
Default on the Notes has occurred, (ii) a redemption of the U.K. Notes pursuant
to Section 3.1(d) of the Indenture has occurred, or (iii) the occurrence of a
Change of Control of MSXI Limited.
The Indenture, this Unit and the Notes shall be governed by
and construed in accordance with the laws of the State of New York.
All terms used in this Unit which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-1
IN WITNESS WHEREOF, the Company and MSXI Limited have caused
this Unit to be signed manually or by facsimile by one of its duly authorized
officers.
MSX INTERNATIONAL, INC.
By:___________________________
Name:
Title:
MSX INTERNATIONAL LIMITED
By:___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The BNY Midwest Trust Company, as Trustee, certifies that this
is one of the Units referred to in the within-mentioned Indenture.
BNY MIDWEST TRUST COMPANY, as Trustee
By:
-------------------------------------
Authorized Signatory
Date of Authentication:
ASSIGNMENT FORM
If you the Holder want to assign this Unit, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Unit to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________________________________
agent to transfer this Unit on the books of the Company and MSXI Limited. The
agent may substitute another to act for him.
Dated: Signed:
------------------------------ -----------------------------
(Sign exactly as your name
appears on the other side of
this Unit)
Signature Guarantee:
---------------------------------
[FACE OF U.S. NOTE]
MSX INTERNATIONAL, INC.
11% Senior Secured Notes Due 2007
No. $
CUSIP No.
MSX INTERNATIONAL, INC., a Delaware corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum of
Dollars on October 15, 2007.
Interest Rate: 11.0%
Interest Payment Dates: August 1 and February 1, commencing
February 1, 2004.
Record Dates: July 15 and January 15.
Additional provisions of this Note are set forth on the
reverse side of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by one of its duly authorized officers.
MSX INTERNATIONAL, INC.
By:
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The BNY Midwest Trust Company, as Trustee, certifies that this
is one of the U.S. Notes referred to in the within-mentioned Indenture.
BNY MIDWEST TRUST COMPANY, as Trustee
By:
-------------------------------------
Authorized Signatory
Date of Authentication:
[REVERSE OF U.S. NOTE]
11% SENIOR SECURED NOTE DUE 2007
1. Separable.
This U.S. Note, together with the 11% Senior Secured Note due
2007 of MSX International Limited ("MSXI Limited") (the "U.K. Note"), comprise a
unit (each a "Unit"). The U.S. Notes and U.K. Notes are collectively referred to
in this Note as the "Notes." The Notes will not trade separately unless (i) an
Event of Default on the Notes has occurred, (ii) a redemption of the U.K. Notes
pursuant to Section 3.1(d) of the Indenture has occurred, or (iii) the
occurrence of a Change of Control of MSXI Limited.
2. Interest.
MSX INTERNATIONAL, INC., a Delaware corporation (such entity,
and its successors and assigns under the Indenture hereinafter referred to, and
each other entity which is required to become the Company pursuant to the
Indenture, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay interest on the principal amount of this
U.S. Note at the rate per annum shown above. The Company will pay interest
semi-annually on August 1 and February 1 of each year, commencing February 1,
2004. Interest on the U.S. Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 1, 2003.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at 1% per annum in
excess of the rate borne by the U.S. Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
3. Method of Payment.
The Company will pay interest on the U.S. Notes (except
defaulted interest) to the Persons who are registered Holders of U.S. Notes at
the close of business on the record date immediately preceding the interest
payment date even if U.S. Notes are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined in
the Registration Rights Agreement)) after the record date. Holders must
surrender U.S. Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder's registered address.
4. Paying Agent and Registrar.
Initially, BNY Midwest Trust Company, an Illinois trust
company ("Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying
Agent, Registrar or co-Registrar without notice. The Company may act as Paying
Agent, Registrar, co-Registrar or transfer agent.
5. Indenture.
The Company issued the U.S. Notes under an Indenture dated as
of August 1 , 2003 (the "Indenture"), among the Company, the Guarantors, the
Trustee and the Collateral Agent. This U.S. Note is one of a duly authorized
issue of Initial U.S. Notes of the Company designated as its 11% Senior Secured
Notes due 2007 (the "Initial U.S. Notes"). The U.S. Notes include the Initial
U.S. Notes and the Exchange U.S. Notes issued in exchange for the Initial U.S.
Notes pursuant to the Registration Rights Agreement. The Initial U.S. Notes, the
Exchange U.S. Notes, the Initial U.K. Notes and the Exchange U.K. Notes are
treated as a single class of securities under the Indenture. The terms of the
U.S. Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect and amended on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The U.S. Notes are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of those
terms. Any conflict between this U.S. Note and the Indenture will be governed by
the Indenture.
6. Redemption.
(a) Optional Redemption Prior to August 1, 2005. At any time
prior to August 1, 2005, the Issuers may, at their option, on one or more
occasions redeem all or part of their Notes at a redemption price equal to the
greater of (1) 100% of the principal amount of the Notes being redeemed and (2)
the sum of the present values of 105.5% of the principal amount of the Notes
being redeemed and scheduled payments of interest on such Notes to and including
August 1, 2005 discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 50 basis points, together in either case with accrued and unpaid
interest, if any, to the date of redemption. The foregoing optional redemption
of the Notes prior to August 1, 2005 shall include both U.S. Notes and U.K.
Notes on a pro rata basis based on the aggregate principal amount of the Notes
outstanding at the time of redemption, unless a Change of Control of MSXI
Limited has occurred.
(i) "Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption period.
(ii) "Comparable Treasury Issue" means the United
States Treasury security selected by a Reference Treasury Dealer appointed by
the Company as having a maturity comparable to the remaining term of the Notes
(as if the final maturity of the Notes was August 1, 2005) that would be
utilized at the time of selection and in accordance with customary financial
practice in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes (as if the final maturity of the
Notes was August 1, 2005).
(iii) "Comparable Treasury Price" means, with respect
to any redemption date, (1) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third business day preceding such redemption date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer Quotations (as
defined below) for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotation or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
(iv) "Reference Treasury Dealer Quotation" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Company by such Reference Treasury
Dealer at 5:00 p.m. on the third business date preceding such redemption date.
(v) "Reference Treasury Dealer" means any primary
U.S. government securities dealer in the City of New York (a "Primary Treasury
Dealer") selected by the Company.
(b) Optional Redemption on or After August 1, 2005. On or
after August 1, 2005, the Notes will be redeemable, at the Issuers' option, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), plus accrued and unpaid interest and Additional Amounts,
if any, to the redemption date (subject to the right of Holders of record on the
relevant record date receive interest due on the relevant interest payment
date), if redeemed during the period commencing on the date set forth below:
REDEMPTION
DATE PRICE
---- -----------
August 1, 2005........................ 105.500%
February 1, 2006...................... 102.750%
August 1, 2006 and thereafter......... 100.000%
The foregoing optional redemption of the Notes on or after
August 1, 2005 shall include both U.S. Notes and U.K. Notes on a pro rata basis
based on the aggregate principal amount of the Notes outstanding at the time of
redemption, unless a Change of Control of MSXI Limited has occurred.
(c) Redemption Upon Equity Offering. In addition, at any time
and from time to time prior to August 1, 2005, the Issuers may redeem at their
option in the aggregate up to 35% of the original principal amount of the Notes
with the proceeds of one or more Public Equity Offerings following which there
is a Public Market, at a redemption price (expressed as a percentage of
principal amount) of 111.0% plus accrued and unpaid interest and Additional
Amounts, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least 65% of the original
aggregate principal amount of the Notes must remain outstanding after each such
redemption.
The foregoing optional redemption of the Notes shall include
both U.S. Notes and U.K. Notes on a pro rata basis based on the aggregate
principal amount of the Notes outstanding at the time of redemption, unless a
Change of Control of MSXI Limited has occurred.
7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of U.S. Notes to be redeemed at his registered address. U.S. Notes in
denominations larger than $860 may be redeemed in part but only in whole
multiples of $860. If money sufficient to pay the redemption price of and
accrued interest on all U.S. Notes (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before 10:00 a.m. New
York City time on the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such U.S. Notes
(or such portions thereof) called for redemption. If a notice or communication
is sent in the manner provided in the Indenture, it is duly given, whether or
not the addressee receives it. Failure to send a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
8. Offers to Purchase.
Sections 4.6, 4.11(a) and 4.23 of the Indenture provide that
after certain Asset Sales, upon the occurrence of a Change of Control Triggering
Event and upon the Company having Excess Cash Flow, and subject to further
limitations contained therein, the Company and MSXI Limited will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. Denominations.
The U.S. Notes are in registered form, without coupons, and in
denominations of $860 and integral multiples of $860.
10. Persons Deemed Owners.
The registered Holder of this U.S. Note may be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the U.S. Notes and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the U.S. Notes to redemption or
maturity, as the case may be.
13. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount outstanding of the Notes and (ii) any past
default or compliance with any provision may be waived with the consent of the
Holders of a majority in principal amount outstanding of the Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company, the Subsidiary Guarantors and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
to comply with Article 5 of the Indenture, to provide for uncertificated Notes
in addition to or in place of certificated Notes, to add guarantees with respect
to the Notes, to release Subsidiary Guarantors when permitted by the Indenture,
to secure the Notes, to add additional covenants or surrender rights and powers
conferred on the Company, to make any change that does not adversely affect the
rights of any Holder or to comply with any request of the SEC in connection with
qualifying the Indenture under the TIA.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of U.S. Notes and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
15. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, or interest on any of the U.S. Notes or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture, or in any of the U.S.
Notes or because of the creation of any Indebtedness represented hereby and
thereby, shall be had against any past, present and future incorporator,
stockholder, officer,
director, employee or controlling person of the Company, a Subsidiary Guarantor
or any Successor Person thereof. Each Holder, by accepting a U.S. Note, waives
and releases all such liability.
16. Guarantees.
This U.S. Note will be entitled to the benefits of certain
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Subsidiary Guarantors, the
Trustee and the Holders.
17. Governing Law.
THE INDENTURE AND THE U.S. NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO AND THE HOLDERS (BY THEIR
ACCEPTANCE OF A U.S. NOTE) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE INDENTURE, THIS U.S. NOTE, THE
GUARANTEES, THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THE
INDENTURE.
19. Authentication.
This U.S. Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this U.S. Note.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
21. CUSIP Numbers.
Upon the occurrence of a Separation Event, the Company will,
as soon as practicable, obtain CUSIP numbers and have such CUSIP numbers printed
on the U.S. Notes and
direct the Trustee to use such CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the U.S. Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to: MSX International Limited, c/o MSX International, Inc., 22355 West Eleven
Mile Road, Southfield, MI 48304-4375, Tel: 248-829-6300, Attention: Corporate
Legal Department.
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________________ agent to
transfer this Note on the books of the Company and MSXI Limited. The agent may
substitute another to act for him.
Dated: Signed:
------------------------ -------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
--------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this U.S. Note purchased by the
Company pursuant to Section 4.6, 4.11 or 4.23 of the Indenture, check the box:
/ /
If you want to elect to have only part of this U.S. Note
purchased by the Company pursuant to Section 4.6, 4.11 or 4.23 of the Indenture,
state the amount: $
Date: Your Signature:
---------------- -----------------------------------
(Sign exactly as your name appears
on the other side of the U.S. Note)
Signature Guarantee:
--------------------------------------------
(Signature must be guaranteed)
[FACE OF U.K. NOTE]
MSX INTERNATIONAL LIMITED
11% Senior Secured Notes Due 2007
No. $
CUSIP No.
MSX INTERNATIONAL LIMITED, a company under the laws of England
and Wales, promises to pay to Cede & Co., or registered assigns, the principal
sum of Dollars on October 15, 2007.
Interest Rate: 11.0%
Interest Payment Dates: August 1 and February 1, commencing
February 1, 2004.
Record Dates: July 15 and January 15.
Additional provisions of this Note are set forth on the
reverse side of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by one of its duly authorized officers.
MSX INTERNATIONAL LIMITED
By:
-----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The BNY Midwest Trust Company, as Trustee, certifies that this
is one of the U.K. Notes referred to in the within-mentioned Indenture.
BNY MIDWEST TRUST COMPANY, as Trustee
By:
------------------------------------
Authorized Signatory
Date of Authentication:
[REVERSE OF U.K. NOTE]
11% SENIOR SECURED NOTE DUE 2007
1. Separable.
This U.K. Note, together with the 11% Senior Secured Note due
2007 of MSX International, Inc. (the "U.S. Note"), comprise a unit (each a
"Unit"). The U.S. Notes and U.K. Notes are collectively referred to in this Note
as the "Notes." The Notes will not trade separately unless (i) an Event of
Default on the Notes has occurred, (ii) a redemption of the U.K. Notes pursuant
to Section 3.1(d) of the Indenture has occurred, or (iii) the occurrence of a
Change of Control of MSXI Limited.
2. Interest.
MSX INTERNATIONAL LIMITED, a company under the laws of England
and Wales (such entity, and its successors and assigns under the Indenture
hereinafter referred to, and each other entity which is required to become the
Company pursuant to the Indenture, and its successors and assigns under the
Indenture, being herein called the "Company"), promises to pay interest on the
principal amount of this U.K. Note at the rate per annum shown above. The
Company will pay interest semi-annually on August 1 and February 1 of each year,
commencing February 1, 2004. Interest on the U.K. Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from August 1, 2003. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on overdue
principal at 1% per annum in excess of the rate borne by the U.K. Notes, and it
shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
3. Method of Payment.
The Company will pay interest on the U.K. Notes (except
defaulted interest) to the Persons who are registered Holders of U.K. Notes at
the close of business on the record date immediately preceding the interest
payment date even if U.K. Notes are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined in
the Registration Rights Agreement)) after the record date. Holders must
surrender U.K. Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("Legal Tender"). However, the Company may pay principal and interest by its
check payable in such Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder's registered address.
4. Paying Agent and Registrar.
Initially, BNY Midwest Trust Company, an Illinois trust
company ("Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying
Agent, Registrar or co-Registrar without notice. The Company may act as Paying
Agent, Registrar, co-Registrar or transfer agent.
5. Indenture.
The Company issued the U.K. Notes under an Indenture dated as
of August 1 , 2003 (the "Indenture"), among the Company, the Guarantors, the
Trustee and the Collateral Agent. This U.K. Note is one of a duly authorized
issue of Initial U.K. Notes of the Company designated as its 11% Senior Secured
Notes due 2007 (the "Initial U.K. Notes"). The U.K. Notes include the Initial
U.K. Notes and the Exchange U.K. Notes issued in exchange for the Initial U.K.
Notes pursuant to the Registration Rights Agreement. The Initial U.K. Notes, the
Exchange U.K. Notes, the Initial U.S. Notes and the Exchange U.S. Notes are
treated as a single class of securities under the Indenture. The terms of the
U.K. Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect and amended on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The U.K. Notes are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of those
terms. Any conflict between this U.K. Note and the Indenture will be governed by
the Indenture.
6. Redemption.
(a) Optional Redemption Prior to August 1, 2005. At any time
prior to August 1, 2005, the Issuers may, at their option, on one or more
occasions redeem all or part of their Notes at a redemption price equal to the
greater of (1) 100% of the principal amount of the Notes being redeemed and (2)
the sum of the present values of 105.5% of the principal amount of the Notes
being redeemed and scheduled payments of interest on such Notes to and including
August 1, 2005 discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 50 basis points, together in either case with accrued and unpaid
interest, if any, to the date of redemption. The foregoing optional redemption
of the Notes prior to August 1, 2005 shall include both U.S. Notes and U.K.
Notes on a pro rata basis based on the aggregate principal amount of the Notes
outstanding at the time of redemption, unless a Change of Control of the Company
has occurred.
(i) "Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption period.
(ii) "Comparable Treasury Issue" means the United
States Treasury security selected by a Reference Treasury Dealer appointed by
the Company as having a maturity comparable to the remaining term of the Notes
(as if the final maturity of the Notes was August 1, 2005) that would be
utilized at the time of selection and in accordance with customary financial
practice in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes (as if the final maturity of the
Notes was August 1, 2005).
(iii) "Comparable Treasury Price" means, with
respect to any redemption date, (1) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third business day preceding such redemption date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer Quotations (as
defined below) for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotation or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
(iv) "Reference Treasury Dealer Quotation" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Company by such Reference Treasury
Dealer at 5:00 p.m. on the third business date preceding such redemption date.
(v) "Reference Treasury Dealer" means any
primary U.S. government securities dealer in the City of New York (a "Primary
Treasury Dealer") selected by the Company.
(b) Optional Redemption on or After August 1, 2005. On or
after August 1, 2005, the Notes will be redeemable, at the Issuers' option, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), plus accrued and unpaid interest and Additional Amounts,
if any, to the redemption date (subject to the right of Holders of record on the
relevant record date receive interest due on the relevant interest payment
date), if redeemed during the period commencing on the date set forth below:
REDEMPTION
DATE PRICE
---- ----------
August 1, 2005....................... 105.500%
February 1, 2006..................... 102.750%
August 1, 2006 and thereafter........ 100.000%
The foregoing optional redemption of the Notes on or after
August 1, 2005 shall include both U.S. Notes and U.K. Notes on a pro rata basis
based on the aggregate principal amount of the Notes outstanding at the time of
redemption, unless a Change of Control of MSXI Limited has occurred.
(c) Redemption Upon Equity Offering. In addition, at any time
and from time to time prior to August 1, 2005, the Issuers may redeem at their
option in the aggregate up to 35% of the original principal amount of the Notes
with the proceeds of one or more Public Equity Offerings following which there
is a Public Market, at a redemption price (expressed as a percentage of
principal amount) of 111.0% plus accrued and unpaid interest and Additional
Amounts, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least 65% of the original
aggregate principal amount of the Notes must remain outstanding after each such
redemption.
The foregoing optional redemption of the Notes shall include
both U.S. Notes and U.K. Notes on a pro rata basis based on the aggregate
principal amount of the Notes outstanding at the time of redemption, unless a
Change of Control of MSXI Limited has occurred.
(d) Tax Redemption. U.K. Notes may be redeemed, at the option
of MSXI Limited, as a whole, but not in part (limited to U.K. Notes with respect
to which an Additional Amount (as described below) is or may be required), at
any time, upon giving notice to Holders not less than 30 days nor more than 60
days prior to the date fixed for redemption (which notice shall be irrevocable),
at a redemption price equal to the principal amount thereof, together with
interest accrued to the date fixed for redemption and any Additional Amounts
payable with respect thereto, if MSXI Limited determines and certifies to the
Trustee immediately prior to the giving of such notice that (i) they have or
will become obligated to pay Additional Amounts in respect of such U.K. Notes as
a result of any change in or amendment to the laws (or any regulations or
rulings promulgated thereunder) of the United Kingdom or any relevant
jurisdiction or any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in the official position regarding the
application or interpretation of such laws, regulations or rulings (including a
holding by a court of competent jurisdiction) which change or amendment becomes
effective on or after the date of issuance of such U.K. Notes and (ii) such
obligation cannot be avoided by MSXI Limited taking reasonable measures
available to it, provided, that no such notice of redemption shall be given
earlier than 60 days prior to the earliest date on which MSXI Limited would be
obligated to pay such Additional Amounts if a payment in respect of such U.K.
Notes was then due. Prior to the giving of any notice of redemption described in
this Section 6(d), MSXI Limited shall deliver to the Trustee (a) a certificate
signed by two directors of MSXI Limited stating that the obligation to pay
Additional Amounts cannot be avoided by MSXI Limited taking reasonable measures
available to them and (b) an Opinion of Counsel to MSXI Limited to the effect
that MSXI Limited has become obligated to pay Additional Amounts as a result of
such a change or amendment described above and that MSXI Limited cannot avoid
payment of such Additional Amounts by taking reasonable measures available to
them.
7. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of U.K. Notes to be redeemed at
his registered address. U.K. Notes in denominations larger than $140 may be
redeemed in part but only in whole multiples of $140. If money sufficient to pay
the redemption price of and accrued interest on all U.K. Notes (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before 10:00 a.m. New York City time on the redemption date and
certain other conditions are satisfied, on and after such date interest ceases
to accrue on such U.K. Notes (or such portions thereof) called for redemption.
If a notice or communication is sent in the manner provided in the Indenture, it
is duly given, whether or not the addressee receives it. Failure to send a
notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
8. Offers to Purchase.
Sections 4.6, 4.11(a) and 4.23 of the Indenture provide that
after certain Asset Sales, upon the occurrence of a Change of Control of the
Company and upon the Company having Excess Cash Flow, and subject to further
limitations contained therein, the Company and MSXI Limited will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture. Section 4.11(b) of the Indenture provides that upon the
occurrence of the Change of Control of MSXI Limited, MSXI Limited may, at its
option at any time, redeem the U.K Notes in whole, and not in part, at the
optional redemption prices specified in (i) Section 6(a) for redemptions prior
to August 1, 2005 and (ii) the first paragraph of Section 6(b) for redemptions
on or after August 1, 2005. If MSXI Limited has not delivered a notice of
redemption within 30 days following a Change of Control of MSXI Limited, each
Holder of a U.K. Note shall have the right to require that MSXI Limited
repurchase all or a portion of such Holder's U.K. Notes in accordance with the
procedures set forth in the Indenture.
9. Denominations.
The U.K. Notes are in registered form, without coupons, and in
denominations of $140 and integral multiples of $140.
10. Persons Deemed Owners.
The registered Holder of this U.K. Note may be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the U.K. Notes and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the U.K. Notes to redemption or
maturity, as the case may be.
13. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount outstanding of the Notes and (ii) any past
default or compliance with any provision may be waived with the consent of the
Holders of a majority in principal amount outstanding of the Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company, the Subsidiary Guarantors and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
to comply with Article 5 of the Indenture, to provide for uncertificated Notes
in addition to or in place of certificated Notes, to add guarantees with respect
to the Notes, to release Subsidiary Guarantors when permitted by the Indenture,
to secure the Notes, to add additional covenants or surrender rights and powers
conferred on the Company, to make any change that does not adversely affect the
rights of any Holder or to comply with any request of the SEC in connection with
qualifying the Indenture under the TIA.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of U.K. Notes and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
15. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, or interest on any of the U.K. Notes or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture, or in any of the U.K.
Notes or because of the creation of any Indebtedness represented hereby and
thereby, shall be had against any past, present or future incorporator,
stockholder, officer, director, employee or controlling person of the Company, a
Subsidiary Guarantor or any Successor Person thereof. Each Holder, by accepting
a U.K. Note, waives and releases all such liability.
16. Guarantees.
This U.K. Note will be entitled to the benefits of certain
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Subsidiary Guarantors, the
Trustee and the Holders.
17. Governing Law.
THE INDENTURE AND THE U.K. NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO AND THE HOLDERS (BY THEIR
ACCEPTANCE OF A U.K. NOTE) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE INDENTURE, THIS U.K. NOTE, THE
GUARANTEES, THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THE
INDENTURE.
19. Authentication.
This U.K. Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this U.K. Note.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
21. CUSIP Numbers.
Upon the occurrence of a Separation Event, the Company will,
as soon as practicable, obtain CUSIP numbers and have such CUSIP numbers printed
on the U.K. Notes and direct the Trustee to use such CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the U.K. Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to: MSX International, Inc., 22355 West Eleven Mile Road, Southfield, MI
48304-4375, Tel: 248-829-6300, Attention: Corporate Legal Department.
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ___________________________________________ agent to
transfer this Note on the books of the Company and MSX International, Inc. The
agent may substitute another to act for him.
Dated: Signed:
------------------ -----------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
--------------------------------------------
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this U.K. Note purchased by the
Company pursuant to Section 4.6, 4.11 or 4.23 of the Indenture, check the box:
/ /
If you want to elect to have only part of this U.K. Note
purchased by the Company pursuant to Section 4.6, 4.11 or 4.23 of the Indenture,
state the amount: $
Date: Your Signature:
------------- -----------------------------------------
(Sign exactly as your name appears on the
other side of the U.K. Note)
Signature Guarantee:
--------------------------------------
(Signature must be guaranteed)