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_____________
MT Acquisition Corp., as Issuer
and
Xxxxxxx-Xxxxxx Holding Inc., as Note Guarantor,
and
United States Trust Company of New York, as Trustee
------------------------------------
INDENTURE
Dated as of October , 1996
------------------------------------
$115,000,000
% Senior Subordinated Notes due 2006
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--------------------------------------------------------------------------------
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of the date hereof
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
-------------------------------- ---------
Section 310(a)(1) ................................. 7.11
(a)(2) ................................. 7.11
(a)(3) ................................. N.A.
(a)(4) ................................. N.A.
(a)(5) ................................. 7.11
(b) ................................. 7.09; 7.11;
12.02
(c) ................................. N.A.
Section 311(a) ................................. 7.12
(b) ................................. 7.12
(c) ................................. N.A.
Section 312(a) ................................. 2.05
(b) ................................. 12.03
(c) ................................. 12.03
Section 313(a) ................................. 7.07
(b) ................................. 7.07
(c) ................................. 7.07; 12.02
(d) ................................. 7.07
Section 314(a) ................................. 4.06; 4.20;
12.02
(b) ................................. N.A.
(c)(1) ................................. 12.04
(c)(2) ................................. 12.04
(c)(3) ................................. N.A.
(d) ................................. N.A.
(e) ................................. 12.05
(f) ................................. N.A.
Section 315(a) ................................. 7.01(b),(c)
(b) ................................. 7.05; 12.02
(c) ................................. 7.01(a)
(d) ................................. 7.01(c)
(e) ................................. 6.11
Section 316(a) (last
sentence) ................................. 2.09
(a)(1)(A) ................................. 6.05
(a)(1)(B) ................................. 6.04
(a)(2) ................................. N.A.
(b) ................................. 6.07
Section 317(a)(1) ................................. 6.08
(a)(2) ................................. 6.09
(b) ................................. 2.04
Section 318(a) ................................. 12.01
------------------------------------
Note: This reconciliation and tie shall not, for any pur-
pose, be deemed to be a part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions........................................................................... 1
Section 1.02. Incorporation by Reference of Trust Indenture Act..................................... 31
Section 1.03. Rules of Construction................................................................. 32
ARTICLE TWO
THE NOTES
Section 2.01. Forms and Dating...................................................................... 33
Section 2.02. Execution and Authentication.......................................................... 34
Section 2.03. Registrar and Paying Agent............................................................ 34
Section 2.04. Paying Agent to Hold Money in Trust................................................... 35
Section 2.05. Noteholder Lists...................................................................... 35
Section 2.06. Transfer and Exchange................................................................. 36
Section 2.07. Replacement Notes..................................................................... 38
Section 2.08. Outstanding Notes..................................................................... 39
Section 2.09. Treasury Notes........................................................................ 39
Section 2.10. Temporary Notes....................................................................... 39
Section 2.11. Cancellation.......................................................................... 40
Section 2.12. Defaulted Interest.................................................................... 40
Section 2.13. CUSIP Number.......................................................................... 41
Section 2.14. Deposit of Moneys..................................................................... 41
Section 2.15. Computation of Interest............................................................... 41
ARTICLE THREE
REDEMPTION OF NOTES
Section 3.01. Notices to the Trustee................................................................ 41
Section 3.02. Selection of Notes to Be Redeemed..................................................... 41
Section 3.03. Notice of Redemption.................................................................. 42
Section 3.04. Effect of Notice of Redemption........................................................ 43
Section 3.05. Deposit of Redemption Price........................................................... 43
Section 3.06. Notes Redeemed or Purchased in Part................................................... 44
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Page
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes...................................................................... 44
Section 4.02. Maintenance of Office or Agency....................................................... 45
Section 4.03. Corporate Existence................................................................... 45
Section 4.04. Payment of Taxes and Other Claims..................................................... 46
Section 4.05. Maintenance of Properties............................................................. 46
Section 4.06. Compliance Certificate................................................................ 47
Section 4.07. Waiver of Stay, Extension or Usury Laws............................................... 47
Section 4.08. Limitation on Indebtedness............................................................ 47
Section 4.09. Limitation on Restricted Payments..................................................... 55
Section 4.10. Limitation on Transactions with Affiliates............................................ 61
Section 4.11. Limitation on Certain Liens........................................................... 62
Section 4.12. Limitation on Certain Guarantees...................................................... 63
Section 4.13. Certain Future Note Guarantors........................................................ 64
Section 4.14. Limitation on Other Senior Subordinated Indebtedness.................................. 65
Section 4.15. Limitation on the Sale or Issuance of Preferred Stock of Restricted Subsidiaries...... 65
Section 4.16. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.......................................................................... 66
Section 4.17. Restriction on Transfer of Assets to Subsidiaries..................................... 67
Section 4.18. Limitation on Disposition of Proceeds of Asset Sales.................................. 68
Section 4.19. Change of Control..................................................................... 71
Section 4.20. Reporting Requirements................................................................ 74
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. Merger, Consolidation and Sale of Assets.............................................. 75
Section 5.02. Successor Substituted................................................................. 77
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Page
ARTICLE SIX
REMEDIES
Section 6.01. Events of Default..................................................................... 77
Section 6.02. Acceleration.......................................................................... 80
Section 6.03. Other Remedies........................................................................ 82
Section 6.04. Waiver of Past Defaults............................................................... 82
Section 6.05. Control by Majority................................................................... 83
Section 6.06. Limitation on Suits................................................................... 83
Section 6.07. Right of Holders to Receive Payment................................................... 84
Section 6.08. Collection Suit by Trustee............................................................ 84
Section 6.09. Trustee May File Proofs of Claims..................................................... 84
Section 6.10. Priorities............................................................................ 85
Section 6.11. Undertaking for Costs................................................................. 85
Section 6.12. Restoration of Rights and Remedies.................................................... 86
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties................................................................................ 86
Section 7.02. Rights of Trustee..................................................................... 87
Section 7.03. Individual Rights of Trustee.......................................................... 88
Section 7.04. Trustee's Disclaimer.................................................................. 89
Section 7.05. Notice of Default..................................................................... 89
Section 7.06. Money Held in Trust................................................................... 89
Section 7.07. Reports by Trustee to Holders......................................................... 89
Section 7.08. Compensation and Indemnity............................................................ 90
Section 7.09. Replacement of Trustee................................................................ 91
Section 7.10. Successor Trustee by Merger, etc...................................................... 92
Section 7.11. Eligibility; Disqualification......................................................... 92
Section 7.12. Preferential Collection of Claims Against Company..................................... 93
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01. Termination of the Company's Obligations.............................................. 93
Section 8.02. Defeasance and Covenant Defeasance.................................................... 94
Section 8.03. Application of Trust Money............................................................ 99
Section 8.04. Repayment to Company or Note Guarantors............................................... 99
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Page
Section 8.05. Reinstatement......................................................................... 100
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders............................................................ 100
Section 9.02. With Consent of Holders............................................................... 101
Section 9.03. Compliance with Trust Indenture Act................................................... 103
Section 9.04. Revocation and Effect of Consents..................................................... 103
Section 9.05. Notation on or Exchange of Notes...................................................... 104
Section 9.06. Trustee May Sign Amendments, etc...................................................... 104
ARTICLE TEN
GUARANTEE OF NOTES
Section 10.01.Note Guarantee........................................................................ 105
Section 10.02.Execution and Delivery by Holding of Note Guarantee................................... 107
Section 10.03.Additional Note Guarantors............................................................ 107
Section 10.04.Note Guarantee Obligations Subordinated to Guarantor Senior Indebtedness.............. 108
Section 10.05.Payment Over of Proceeds upon Dissolution, etc........................................ 108
Section 10.06.Suspension of Note Guarantee Obligations When Guarantor Senior
Indebtedness in Default............................................................... 110
Section 10.07.Release of Note Guarantee............................................................. 111
Section 10.08.Waiver of Subrogation................................................................. 112
Section 10.09.Provisions Solely to Define Relative Rights........................................... 112
Section 10.10.Trustee to Effectuate Subordination................................................... 113
Section 00.00.Xx Waiver of Subordination Provisions................................................. 113
Section 10.12.Notice to Trustee..................................................................... 114
Section 00.00.Xxxxxxxx on Judicial Order or Certificate of Liquidating Agent
Regarding Dissolution, etc. .......................................................... 115
Section 10.14.Rights of Trustee as a Holder of Guarantor Senior Indebtedness;
Preservation of Trustee's Rights...................................................... 116
Section 10.15.Article Ten Applicable to Paying Agents............................................... 116
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Page
Section 00.00.Xx Suspension of Remedies............................................................. 116
Section 10.17.Trustee's Relation to Guarantor Senior Indebtedness................................... 117
Section 10.18.Subrogation........................................................................... 117
ARTICLE ELEVEN
SUBORDINATION OF NOTES
Section 11.01.Notes Subordinate to Senior Indebtedness.............................................. 118
Section 11.02.Payment over of Proceeds upon Dissolution, etc........................................ 118
Section 11.03.Suspension of Payment When Senior Indebtedness in Default............................. 120
Section 11.04.Trustee's Relation to Senior Indebtedness.... ........................................ 122
Section 11.05.Subrogation to Rights of Holders of Senior Indebtedness............................... 122
Section 11.06.Provisions Solely to Define Relative Rights........................................... 123
Section 11.07.Trustee to Effectuate Subordination................................................... 124
Section 00.00.Xx Waiver of Subordination Provisions................................................. 124
Section 11.09.Notice to Trustee..................................................................... 125
Section 00.00.Xxxxxxxx on Judicial Order or Certificate of Liquidating Agent........................ 126
Section 11.11.Rights of Trustee as a Holder of Senior Indebtedness; Preservation of
Trustee's Rights...................................................................... 126
Section 11.12.Article Applicable to Paying Agents................................................... 127
Section 00.00.Xx Suspension of Remedies............................................................. 127
ARTICLE TWELVE
MISCELLANEOUS
Section 00.00.Xxxxx Indenture Act of 1939........................................................... 127
Section 12.02.Notices............................................................................... 127
Section 12.03.Communication by Holders with Other Holders........................................... 128
Section 12.04.Certificate and Opinion as to Conditions Precedent.................................... 129
Section 12.05.Statements Required in Certificate or Opinion......................................... 129
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Page
Section 12.06.Rules by Trustee, Paying Agent, Registrar............................................. 130
Section 00.00.Xxxxx Holiday......................................................................... 130
Section 12.08.Governing Law......................................................................... 130
Section 00.00.Xx Recourse Against Others............................................................ 130
Section 12.10.Successors............................................................................ 130
Section 12.11.Multiple Originals.................................................................... 130
Section 12.12.Separability.......................................................................... 130
Section 12.13.Table of Contents, Headings, etc...................................................... 130
Section 12.14.Benefits of Indenture................................................................. 131
SIGNATURES.......................................................................................... 132
SCHEDULE 1 Existing Liens
EXHIBIT A Form of Note
EXHIBIT B Form of First Supplemental Indenture
vii
INDENTURE, dated as of October , 1996, between MT
ACQUISITION CORP., a corporation incorporated under the laws
of the State of Delaware (together with its successors, the
"Company"), as issuer, XXXXXXX-XXXXXX HOLDING INC., a
corporation incorporated under the laws of the State of
Delaware, as guarantor, and UNITED STATES TRUST COMPANY OF
NEW YORK, as trustee (the "Trustee").
Each party hereto agrees as follows for the
benefit of each other party and for the equal and ratable
benefit of the Holders of the Company's % Senior
Subordinated Notes due 2006 (the "Notes").
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
"Acquired Indebtedness" means (x) Indebtedness of
a Person existing at the time such Person was acquired by
the Company or (y) Indebtedness of a Person assumed by the
Company or a Restricted Subsidiary in connection with its
acquisition of assets from such Person, in each case other
than Indebtedness Incurred in connection with, or in
contemplation of the transaction or series of related
transactions pursuant to which such Person became a
Subsidiary or such assets were so acquired by the Company or
a Restricted Subsidiary.
"Acquisition" means the acquisition pursuant to
the Stock Purchase Agreement, dated as of April 2, 1996,
between MT Investors (formerly named AEA MT Inc.), AG fr
Przisioninstrumente, Greifensee, Switzerland and Ciba-Geigy
AG, as amended to the Issue Date.
"Acquisition Indebtedness" means Indebtedness of a
Restricted Subsidiary (x) Incurred solely for the purpose of
financing the acquisition of the Capital Stock of a Person
that after giving effect to such acquisition will be a
Restricted Subsidiary, or assets constituting substantially
all of a separate division or separate business unit of a
Person, and (y) the proceeds of which (net of fees and
expenses (including fees and expenses of legal counsel and
investment banks) directly related to such Incurrence) are
used to pay the purchase price for such Capital Stock or
assets.
"AEA" means AEA Investors Inc., a Delaware
corporation, or any legal successor thereto as a result of a
reorganization thereof that does not involve any change in
control thereof.
"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. For purposes of Section 4.10
only, "Affiliate" shall also mean any Beneficial Owner of
shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company,
and any Person who would be an Affiliate of any such
Beneficial Owner pursuant to the first sentence hereof.
"Agent" means any Registrar or Paying Agent of the
Notes.
"Asset Sale" means any sale, issuance, conveyance,
transfer, lease or other disposition (including by merger,
consolidation or otherwise) by the Company or any Restricted
Subsidiary, in one or a series of related transactions, of:
(a) any Capital Stock of any Subsidiary of the Company; (b)
all or substantially all of the properties and assets of any
division or line of business of the Company or any
Restricted Subsidiary; or (c) other than in the ordinary
course of business, any properties or assets of the Company
or a Restricted Subsidiary. For the purposes of this
definition, the term "Asset Sale" shall not include any
sale, issuance, conveyance, transfer, lease or other
disposition of properties or assets (i) to the Company or
any Restricted Subsidiary, (ii) that is governed by
Section 5.01, (iii) in one transaction or a series of
related transactions, involving assets with a Fair Market
Value not in excess of $2,500,000 or (iv) involving assets
with a Fair Market Value not in excess of $5,000,000 for all
such dispositions in the aggregate in any fiscal year.
"Attributable Debt" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the
present value (discounted at the interest rate assumed in
making calculations in accordance with FAS 13) of the total
obligations of the lessee for rental payments during the
2
remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has
been extended).
"Average Life" means, with respect to any
Indebtedness, as at any date of determination, the quotient
obtained by dividing (a) the sum of the products of (i) the
number of years from such date to the date or dates of each
successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such
Indebtedness multiplied by (ii) the amount of each such
principal payment by (b) the sum of all such principal
payments.
"Bank Agent" means The Bank of Nova Scotia or any
successor or replacement administrative agent under the
Credit Agreement.
"Bankruptcy Law" means Title 11 of the United
States Code or any similar federal, state or foreign law for
the relief of debtors.
"Beneficial Owner" means a "beneficial owner" as
defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to be a "beneficial
owner" of all securities that such Person has the right to
acquire, whether that right is exercisable immediately or
only after the passage of time.
"Board of Directors" means the Board of Directors
of the Company or a designated committee thereof.
"Board Resolution" means a copy of a resolution
certified by the Secretary of the Company or any Note
Guarantor, as the case may be, to have been duly adopted by
the Board of Directors or the board of directors (or desig-
nated committee thereof) of the relevant Note Guarantor and
to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than a Saturday,
Sunday or any other day on which banking institutions in New
York State are authorized or required by law to close.
"Capital Expenditure Indebtedness" means any
Indebtedness of the Company or any Restricted Subsidiary
(whether consisting of Capitalized Lease Obligations,
Purchase Money Obligations or otherwise) Incurred (x) for
the purpose of financing all or any part of the purchase
3
price, cost of construction or improvement of any fixed or
capital assets used in a Related Business and (y) no later
than 180 days after the date of such acquisition or the date
of completion of such construction or improvement.
"Capital Stock" of any Person means any and all
shares of, rights to purchase, warrants or options for, or
participations or other interests in (however designated)
equity of such Person, including Preferred Stock, but
excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an
obligation that is required to be classified and accounted
for as a capitalized lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with
GAAP; and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such
lease.
"Cash Equivalents" means (i) any security,
maturing not more than one year after the date of
acquisition, issued by the United States of America, or an
instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United
States of America; (ii) any certificate of deposit, time
deposit or bankers' acceptance (or, with respect to non-U.S.
banking institutions, similar instruments), maturing not
more than one year after the day of acquisition, issued by
any commercial banking institution that is a member of the
Federal Reserve System or a commercial banking institution
organized and located in a country recognized by the United
States of America, in each case, having combined capital and
surplus and undivided profits of not less than $500,000,000
(or the foreign currency equivalent thereof), whose
short-term debt has a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according
to Xxxxx'x or "A-1" (or higher) according to S&P;
(iii) commercial paper maturing not more than one year after
the date of acquisition issued by a corporation (other than
an Affiliate or Subsidiary of the Company) with a rating, at
the time as of which any investment therein is made, of
"P-1" (or higher) according to Xxxxx'x or "A-1" (or higher)
according to S&P; (iv) any money market deposit accounts
issued or offered by a commercial banking institution that
is a member of the Federal Reserve System or a commercial
banking institution organized and located in a country
recognized by the United States of America, in each case,
4
having combined capital and surplus and undivided profits in
excess of $500,000,000 (or the foreign currency equivalent
thereof); and (v) other short-term investments utilized by
Non-U.S. Restricted Subsidiaries in accordance with normal
investment practices for cash management not exceeding
$5,000,000 in aggregate principal amount outstanding at any
time.
"Change of Control" has the meaning set forth in
Section 4.19(b).
"Commodities Agreements" means one or more of the
following agreements entered into by a Person and one or
more financial institutions: commodity future contracts,
forward contracts, options or other similar agreements or
arrangements designed to protect against fluctuations in the
price of, or the shortage of supply of, commodities from
time to time.
"Company" means MT Acquisition Corp., a Delaware
corporation, and upon consummation of the Merger, means
Xxxxxxx-Xxxxxx, Inc., a Delaware corporation, the survivor
of the Merger, until a successor Person shall have become
such pursuant to Article Five, and thereafter "Company"
shall mean such successor Person.
"Consolidated Assets" means the total assets of
the Company and its Restricted Subsidiaries shown on the
Consolidated balance sheet of the Company and its Restricted
Subsidiaries prepared in accordance with GAAP as of the last
day of the immediately preceding fiscal quarter.
"Consolidated Coverage Ratio" as of any date of
determination means the ratio of (i) the aggregate amount of
EBITDA for the period of the most recent four consecutive
fiscal quarters ending prior to the date of such
determination for which consolidated financial statements of
the Company are available to (ii) Consolidated Interest
Expense for such four fiscal quarters, provided, however,
that:
(1) if the Company or any Restricted Subsidiary
(x) has Incurred any Indebtedness since the beginning
of such period that remains outstanding on such date of
determination or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an
Incurrence of Indebtedness, EBITDA and Consolidated
Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such
5
Indebtedness and the application of the proceeds
thereof as if such Indebtedness had been Incurred on
the first day of such period or (y) has repaid,
repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of the period that is
no longer outstanding on such date of determination, or
if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio involves a discharge of
Indebtedness, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving effect
to such discharge of such Indebtedness, including with
the proceeds of such new Indebtedness, as if such
discharge had occurred on the first day of such period
(except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall
be computed based upon the average daily balance of
such Indebtedness during such four-quarter period);
(2) if since the beginning of such period the
Company or any Restricted Subsidiary shall have
disposed of any company or any business or any group of
assets constituting an operating unit (a "Disposal"),
(x) EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly
attributable to the assets which are the subject of
such Disposal for such period or increased by an amount
equal to the EBITDA (if negative) directly attributable
thereto for such period and (y) Consolidated Interest
Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any
Restricted Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to the Company and
its continuing Restricted Subsidiaries in connection
with such Disposal for such period (and, if the Capital
Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted
Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale);
(3) if since the beginning of such period the
Company or any Restricted Subsidiary (by merger or
otherwise) shall have acquired any company or any
business or any group of assets constituting an
operating unit (for purposes of this definition, an
"Acquisition"), EBITDA and Consolidated Interest
Expense for such period shall be calculated after
6
giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Acquisition
had occurred on the first day of such period; and
(4) if since the beginning of such period any
Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or
any Restricted Subsidiary since the beginning of such
period) shall have made any Disposal or Acquisition
that would have required an adjustment pursuant to
clause (2) or (3) above if made by the Company or a
Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if
such Disposal or Acquisition occurred on the first day
of such period.
If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account
any Interest Rate Agreement applicable to such Indebtedness
if such Interest Rate Agreement has a remaining term as at
the date of determination in excess of 12 months). If any
Indebtedness bears, at the option of the Company or a
Restricted Subsidiary, a fixed or floating rate of interest
and is being given pro forma effect, the interest expense on
such Indebtedness shall be computed by applying, at the
option of the Company, either a fixed or floating rate. If
any Indebtedness which is being given pro forma effect was
Incurred under a revolving credit facility, the interest
expense on such Indebtedness shall be computed based upon
the average daily balance of such Indebtedness during the
applicable period. In making any calculation of the
Consolidated Coverage Ratio for any period prior to the date
of the closing of the Acquisition, the Acquisition shall be
deemed to have taken place on the first day of such period.
"Consolidated Income Tax Expense" means for any
period, as applied to any Person, the provision for federal,
state, local and foreign income taxes and capital taxes of
such Person and its Consolidated Subsidiaries for such
period as recorded under "provision for taxes" on the
statement of operations as determined in accordance with
GAAP.
"Consolidated Interest Expense" means, for any
period, the total interest expense of the Company and its
7
Consolidated Subsidiaries, as determined in accordance with
GAAP, plus, to the extent Incurred by the Company and its
Restricted Subsidiaries in such period but not included in
such interest expense, (i) amortization of debt discount
(including amortization of fees), (ii) the interest portion
of any deferred payment obligation which in accordance with
GAAP is required to be reflected on an income statement,
(iii) net costs (including amortization of discounts and
fees) associated with Interest Rate Agreements or Currency
Agreements (other than Currency Agreements permitted by
Section 4.08(b)(viii)(B)), (iv) interest accruing on any
Indebtedness of any other Person that is Guaranteed by the
Company or any Restricted Subsidiary, (v) all commissions,
discounts and other fees and charges with respect to letters
of credit and bankers' acceptance financing, (vi) all
accrued interest, (vii) the aggregate dividends paid or
accrued on Preferred Stock held by Persons other than the
Company or a Wholly Owned Subsidiary, (viii) the interest
component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid by the Company and the
Restricted Subsidiaries during such period as determined on
a consolidated basis in accordance with GAAP, and (ix) the
cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person
(other than the Company) in connection with Indebtedness
Incurred by such plan or trust.
"Consolidated Net Income" means, for any period,
the net income (loss) of the Company and its Consolidated
Subsidiaries, as determined in accordance with GAAP;
provided, however, that there shall not be included in such
Consolidated Net Income: (i) any net income of any Person
that is not the Company or a Restricted Subsidiary, except
that, subject to limitations contained in clause (iv) below,
the Company's equity in the net income of any such Person
for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company
or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations
contained in clause (iii) below); (ii) any net income or
loss of any Person acquired by the Company or a Subsidiary
in a pooling of interests transaction for any period prior
to the date of such acquisition; (iii) any net income of any
Restricted Subsidiary if such Subsidiary is subject to
restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Restricted
8
Subsidiary, directly or indirectly, to the Company, except
that, subject to the limitations contained in (iv) below,
the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of
cash that could have been distributed by such Restricted
Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend (subject, in the case of
a dividend that could have been made to another Restricted
Subsidiary, to the limitation contained in this clause);
(iv) any gain or loss realized upon any Asset Sale and any
gain or loss realized upon the sale or other disposition of
any Capital Stock of any Person; (v) any extraordinary gain
or loss as recorded on the statement of operations in
accordance with GAAP; (vi) the cumulative effect of a change
in accounting principles as recorded on the statement of
operations in accordance with GAAP; (vii) all deferred
financing costs written off in connection with the early
extinguishment of indebtedness under the Credit Agreement or
the Notes as recorded on the statement of operations in
accordance with GAAP; (viii) any charge relating to the
closure of the Westerville, Ohio facility as recorded on the
statement of operations in accordance with GAAP;
(ix) nonrecurring charges related to the Acquisition and any
other acquisition by the Company or any Restricted
Subsidiary occurring after the Issue Date as recorded on the
statement of operations in accordance with GAAP; (x)
non-cash, nonrecurring charges as recorded on the statement
of operations in accordance with GAAP; (xi) unrealized gains
or losses in respect of Currency Agreements permitted by
Section 4.08(b)(viii)(B) as recorded on the statement of
operations in accordance with GAAP; (xii) unrealized foreign
currency transaction gains or losses in respect of
Indebtedness of any Person denominated in a currency other
than the functional currency of such Person and permitted to
be Incurred under Section 4.08 as recorded on the statement
of operations in accordance with GAAP; and (xiii) any
expense relating to bonuses paid by Ciba-Geigy AG or its
Affiliates (other than an Affiliate that will be an
Affiliate of the Company following consummation of the
Acquisition) to employees of the Company or any Restricted
Subsidiary pursuant to agreements entered into in connection
with the disposition of the Xxxxxxx-Xxxxxx Group by Ciba-
Geigy AG, as recorded on the statement of operations in
accordance with GAAP; provided that in the case of any
amount or charge specified in clause (vii), (viii), (ix),
(x), (xi), (xii) or (xiii), such amount or charge shall be
net of any tax or tax benefit to the Company or any of its
Consolidated Subsidiaries resulting therefrom.
9
"Consolidated Non-Cash Charges" of any Person
means, for any period, the aggregate depreciation,
amortization and other non-cash charges of such Person and
its Consolidated Subsidiaries for such period, on a
Consolidated basis, as determined in accordance with GAAP
(excluding any non-cash charge that requires an accrual or
reserve for cash charges for any future period).
"Consolidation" means the consolidation of the
amounts of each of the Restricted Subsidiaries with those of
the Company in accordance with GAAP consistently applied;
provided, however, that "Consolidation" will not include
consolidation of the accounts of any Unrestricted
Subsidiary, but the interest of the Company or any
Restricted Subsidiary in an Unrestricted Subsidiary will be
accounted for as an investment. The term "Consolidated" has
a correlative meaning.
"Corporate Trust Office" means the corporate trust
office of the Trustee at which at any particular time its
corporate trust business shall be principally administered,
which on the date hereof is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Trust Division.
"covenant defeasance" has the meaning set forth in
Section 8.02.
"Credit Agreement" means the Credit Agreement,
dated as of the date hereof, among the Company and Swiss
Subholding, as borrowers, Xxxxxxx Xxxxx Capital Corporation,
as agent and arranger, The Bank of Nova Scotia, as
administrative agent, Credit Suisse and Xxxxxx Commercial
Paper Inc., as co-agents, and the other financial
institutions which are to become parties from time to time
thereto, as such agreement may be amended, modified,
supplemented, renewed, refunded, replaced, increased or
refinanced (in whole or in part) from time to time by one or
more instruments or agreements with the same or other, or
any combination of the same and other, lenders and, in each
case, including, without limitation, any related notes,
letters of credit and applications therefor, guarantees,
collateral documents, instruments and agreements executed in
connection therewith, in each case as amended, modified,
supplemented, renewed, refunded, replaced, increased or
refinanced (in whole or in part) from time to time by one or
more instruments or agreements. Without limiting the
generality of the foregoing, the term "Credit Agreement"
shall, subject to the covenants of this Indenture, include
any agreement (i) changing the maturity of any Indebtedness
10
incurred thereunder or contemplated thereby, (ii) adding
Subsidiaries of the Company as additional borrowers or
guarantors thereunder, (iii) increasing the amount of
Indebtedness incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the terms and
conditions thereof.
"Credit Agreement Obligations" means all monetary
obligations of every nature of the Company or a Restricted
Subsidiary, including, without limitation, obligations to
pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities, from time
to time owed to the lenders or any agent under or in respect
of the Credit Agreement.
"Currency Agreement" means in respect of any
Person any foreign exchange contract, currency swap
agreement or other similar agreement as to which such Person
is a party or a beneficiary.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any
Bankruptcy Law.
"Default" means any event that is, or after notice
or passage of time, or both, would be, an Event of Default.
"defeasance" has the meaning set forth in Section
8.02.
"Depository" shall mean The Depository Trust
Company, New York, New York, its nominees and their
respective successors thereto registered under the Exchange
Act or other applicable statute or regulation.
"Designated Senior Indebtedness" means (i) all
Senior Indebtedness and Guarantor Senior Indebtedness under
the Credit Agreement Obligations and (ii) if no Senior
Indebtedness or Guarantor Senior Indebtedness is outstanding
under the Credit Agreement Obligations or if the lenders
under the Credit Agreement shall have consented thereto, any
other Senior Indebtedness (or for certain purposes more
fully described in this Indenture, Guarantor Senior
Indebtedness) which (a) at the time of incurrence exceeds
$25,000,000 in aggregate principal amount and (b) is
specifically designated by the Company (or, in the case of
Guarantor Senior Indebtedness, by the relevant Note
Guarantor) in the instrument evidencing such Senior
11
Indebtedness or Guarantor Senior Indebtedness as "Designated
Senior Indebtedness."
"Disinterested Director" means a member of the
Board of Directors who does not have any material direct or
indirect financial interest in or with respect to any
transaction or series of transactions.
"Dollar" or "$" means the lawful money of the
United States of America.
"EBITDA" for any period means the sum of
Consolidated Net Income, Consolidated Interest Expense,
Consolidated Income Tax Expense and Consolidated Non-Cash
Charges deducted in computing Consolidated Net Income,
without duplication, in each case for such period, of such
Person and its Consolidated Subsidiaries on a Consolidated
basis, all determined in accordance with GAAP.
"Event of Default" has the meaning set forth under
Section 6.01.
"Excess Proceeds" has the meaning set forth in
Section 4.18(a).
"Excess Proceeds Offer" has the meaning set forth
in Section 4.18(b).
"Excess Proceeds Offer Price" has the meaning set
forth in Section 4.18(b).
"Excess Proceeds Purchase Date" has the meaning
set forth in Section 4.18(c).
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Fair Market Value" means, with respect to any
asset or property, the price that could be negotiated in an
arm's-length free market transaction, for cash, between an
informed and willing seller and an informed and willing
buyer, neither of whom is under undue pressure or compulsion
to complete the transaction.
"First Supplemental Indenture" means the First
Supplemental Indenture, to be entered into substantially in
the form attached hereto as Exhibit B.
12
"GAAP" means generally accepted accounting
principles in the United States of America as in effect as
of the Issue Date, including those set forth in the opinions
and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity
with GAAP.
"Global Note" has the meaning set forth in Section
2.01(a).
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing
any Indebtedness or other obligation of any other Person and
any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or
other obligation of such Person (whether arising by virtue
of partnership arrangements, or by agreement to keep well,
to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions
or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in
part), provided, however, that the term "Guarantee" shall
not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guarantor Senior Indebtedness" means, with
respect to any Note Guarantor, the principal of, premium, if
any, and interest (including interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided
for in the documentation with respect thereto, whether or
not such interest is an allowed claim under applicable
state, federal or foreign law) on and other amounts due on
or in connection with (including any fees, premiums,
expenses, including costs of collection, and indemnities)
any Indebtedness of such Note Guarantor, whether outstanding
on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness,
the instrument creating or evidencing the same or pursuant
to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to
the Note Guarantee of such Note Guarantor. Without limiting
the generality of the foregoing, "Guarantor Senior
Indebtedness" shall also include the principal of, premium,
13
if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under
applicable state, federal or foreign law) on, and all other
amounts owing in respect of, (i) all Credit Agreement
Obligations of such Note Guarantor and (ii) all Related
Currency and Interest Rate Protection Obligations, if any,
of such Note Guarantor, in each case whether outstanding on
the Issue Date or thereafter created, incurred or assumed
and including in respect of claims under guarantees, claims
for indemnity, claims in relation to Related Currency and
Interest Rate Protection Obligations, expense reimbursement
and fees. Notwithstanding the foregoing, "Guarantor Senior
Indebtedness" shall not include (a) Indebtedness evidenced
by the Note Guarantee of such Note Guarantor, (b)
Indebtedness that is pari passu with or expressly
subordinated or junior in right to payment to any Guarantor
Senior Indebtedness of such Note Guarantor, (c) Indebtedness
which, when incurred and without respect to any election
under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is by
its terms without recourse to such Note Guarantor, (d) any
repurchase, redemption or other obligation in respect of
Redeemable Capital Stock of such Note Guarantor, (e) to the
extent it might constitute Indebtedness, amounts owing for
goods, materials or services purchased in the ordinary
course of business or consisting of trade payables or other
current liabilities (other than any current liabilities
owing under the Credit Agreement Obligations or the current
portion of any long-term Indebtedness which would constitute
Guarantor Senior Indebtedness but for the operation of this
clause (e)), (f) to the extent it might constitute
Indebtedness, amounts owed by such Note Guarantor for
compensation to employees or for services rendered to such
Note Guarantor, (g) to the extent it might constitute
Indebtedness, any liability for federal, state, local,
foreign or other taxes owed or owing by such Note Guarantor,
(h) Indebtedness of such Note Guarantor to a Subsidiary of
the Company and (i) that portion of any Indebtedness of such
Note Guarantor which at the time of Incurrence is Incurred
in violation of this Indenture; provided, however, that such
Indebtedness shall be deemed not to have been Incurred in
violation of this Indenture for purposes of this clause (i)
if (x) the holder(s) of such Indebtedness or their
representative or such Note Guarantor shall have furnished
to the Trustee an opinion of recognized independent legal
counsel, unqualified in all material respects, addressed to
the Trustee (which legal counsel may, as to matters of fact,
rely upon an Officers' Certificate of such Note Guarantor)
14
to the effect that the Incurrence of such Indebtedness does
not violate the provisions of this Indenture or (y) such
Indebtedness consists of Credit Agreement Obligations, and
the holder(s) of such Indebtedness or their agent or
representative (1) had no actual knowledge at the time of
Incurrence that the Incurrence of such Indebtedness violated
this Indenture and (2) shall have received a certificate
from an Officer of such Note Guarantor to the effect that
the Incurrence of such Indebtedness does not violate the
provisions of this Indenture.
"Holder" or "Noteholder" means the Person in whose
name a Note is registered on the Registrar's books.
"Holding" means Xxxxxxx-Xxxxxx Holding Inc., a
Delaware corporation, and any successor thereto.
"Incur" means issue, assume, Guarantee, incur or
otherwise become liable for, provided, however, that any
Indebtedness or Capital Stock of a Person existing at the
time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Person at the time it becomes a
Subsidiary.
"Indebtedness" means, with respect to any Person,
without duplication, (a) all liabilities of such Person for
borrowed money or for the deferred purchase price of
property or services, excluding any trade accounts payable
and other accrued current liabilities incurred in the
ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of
such Person in connection with any letters of credit,
banker's acceptance or other similar credit transaction, or
in connection with any agreement to purchase, redeem,
exchange, convert or otherwise acquire for value any Capital
Stock of such Person, or any warrants, rights or options to
acquire such Capital Stock, now or hereafter outstanding,
(b) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments, (c) all
indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with
respect to property acquired by such Person (even if the
rights and remedies of the seller or lender under such
agreement in the event of default are limited to
repossession or sale of such property), but excluding trade
accounts payable arising in the ordinary course of business,
(d) all Capitalized Lease Obligations and all Attributable
Debt of such Person, (e) all Indebtedness referred to in the
15
preceding clauses of other Persons and all dividends of
other Persons, the payment of which is secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and
contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of
such Indebtedness (the amount of such obligation being
deemed to be the lesser of the value of such property or
asset or the amount of the obligation so secured), (f) all
Guarantees of such Person in respect of Indebtedness of
another Person of any of the types referred to in this
definition, (g) all Redeemable Capital Stock of such Person
valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued dividends,
(h) all Currency Agreements, Interest Rate Agreements and
Commodities Agreements of such Person and (i) any amendment,
supplement, modification, deferral, renewal, extension or
refunding of any liability of such Person of any of the
types referred to in clauses (a) through (h) above.
Notwithstanding the foregoing, Indebtedness shall not
include any Guarantee by the Company of the obligations of
Ciba-Geigy AG or its Affiliates under its Guarantee to the
Pension Benefit Guaranty Corporation with respect to any
unfunded liabilities of any employee benefit plan of the
Company.
For purposes hereof, (x) the "maximum fixed
repurchase price" of any Redeemable Capital Stock that does
not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock
as if such Redeemable Capital Stock were purchased on any
date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is
based upon, or measured by, the fair market value of such
Redeemable Capital Stock, such fair market value shall be
determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock and (y) Indebtedness
is deemed to be incurred pursuant to a revolving credit
facility each time an advance is made thereunder. When any
Person becomes a Restricted Subsidiary there shall be deemed
to have been an Incurrence by such Restricted Subsidiary of
all Indebtedness for which it is liable at the time it
becomes a Restricted Subsidiary. If the Company or any
Restricted Subsidiary, directly or indirectly, Guarantees
Indebtedness of another Person, there shall be deemed to be
an Incurrence of such Guaranteed Indebtedness as if the
Company or such Restricted Subsidiary had directly incurred
or otherwise assumed such Guaranteed Indebtedness.
16
"Indenture" means this Indenture, as amended,
modified or supplemented from time to time.
"Interest Payment Date" means the Stated Maturity
of an installment of interest on the Notes, as set forth
therein.
"Interest Rate Agreement" means with respect to
any Person any interest rate protection agreement, interest
rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to
which such Person is party or a beneficiary.
"Investment" in any Person means any direct or
indirect advance, loan (other than advances to customers in
the ordinary course of business that are recorded as
accounts receivable on the balance sheet of such Person) or
other extension of credit (including by way of Guarantee or
similar arrangement) or capital contribution to (by means of
any transfer of cash or other property to others or any
payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such
Person. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.09, (i) "Investment" shall include
the portion (proportionate to the Company's equity interest
in such Subsidiary) of the Fair Market Value of the net
assets of any Subsidiary of the Company at the time that
such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be
deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary in an amount (if positive) equal to
(x) the Company's "Investment" in such Subsidiary at the
time of such redesignation less (y) the portion
(proportionate to the Company's direct or indirect equity
interest in such Subsidiary) of the Fair Market Value of the
net assets of such Subsidiary at the time of such
redesignation; and (ii) any property transferred to or from
an Unrestricted Subsidiary shall be valued at its Fair
Market Value at the time of such transfer, in each case, as
determined in good faith by the Board of Directors.
"Issue Date" means the date on which the Notes are
originally issued.
17
"Lien" means any mortgage, pledge, security
interest, hypothecation, assignment, conveyance, preference,
priority, encumbrance, lien (statutory or other) or charge
of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Management Services Agreement" means the
Management Services Agreement, dated the date hereof,
between AEA and the Company, as in effect on the Issue Date
and as the same may be amended from time to time in any
manner not adverse to the Holders or in accordance with the
procedures set forth in Section 4.10(a).
"Maturity Date" means, with respect to any Note,
the date on which any principal of such Note becomes due and
payable as therein or herein provided, whether at the Stated
Maturity with respect to such principal or by declaration of
acceleration, call for redemption or purchase (including
pursuant to an Excess Proceeds Offer or an offer in the
event of a Change of Control) or otherwise.
"Merger" means the merger of MT Acquisition Corp.
with and into Xxxxxxx-Xxxxxx, Inc. immediately upon
consummation of the Acquisition.
"Moody's" means Xxxxx'x Investors Service, Inc. or
any successor rating agency.
"MT Investors" means MT Investors Inc., a Delaware
corporation, and any successor thereto.
"Net Cash Proceeds" means, (a) with respect to any
Asset Sale, the proceeds thereof in the form of cash or Cash
Equivalents, including payments in respect of deferred
payment obligations when received in the form of, or stock
or other assets when disposed for, cash or Cash Equivalents
(except to the extent that such obligations are financed or
sold, but only to the extent they continue to be, with
recourse to the Company or any Restricted Subsidiary), net
of (i) brokerage commissions and other reasonable fees and
expenses (including fees and expenses of legal counsel and
investment banks) actually incurred and related to such
Asset Sale, (ii) provisions for all taxes payable as a
result of such Asset Sale, (iii) amounts required to be paid
to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary, as the
case may be, as a reserve required in accordance with GAAP
18
against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the
case may be, after such Asset Sale, and (b) with respect to
any issuance or sale of Capital Stock, means the proceeds of
such issuance or sale in the form of cash or Cash
Equivalents, including payments in respect of deferred
payment obligations when received in the form of, or stock
or other assets when disposed for, cash or Cash Equivalents
(except to the extent that such obligations are financed or
sold, but only to the extent they continue to be, with
recourse to the Company or any Restricted Subsidiary), net
of (i) brokerage commissions and other reasonable fees and
expenses (including fees of legal counsel and investment
banks) actually incurred and related to such issuance or
sale and (ii) provisions for all taxes payable as a result
of such issuance or sale; in each case, as reflected in an
Officers' Certificate delivered to the Trustee.
"Non-Dollar Indebtedness" means Indebtedness
denominated in any currency other than Dollars.
"Non-payment Default" means, for purposes of
Article Eleven hereof, any default (other than a Payment
Default) with respect to any Designated Senior Indebtedness
pursuant to which the maturity thereof may be accelerated.
"Non-U.S. Restricted Subsidiary" means any
Restricted Subsidiary of the Company other than a U.S.
Restricted Subsidiary.
"Note Amount" has the meaning set forth in Section
4.18(b).
"Note Guarantee" means the Guarantee of the Notes
by Holding on the terms of Article Ten hereof, and any
Guarantee of the Notes on the terms of Article Ten hereof
that may from time to time be executed and delivered
pursuant to the terms of this Indenture. Each such Note
Guarantee shall be in the form prescribed in this Indenture.
"Note Guarantor" means any Person that has issued
a Note Guarantee.
"Notes" means the Notes that are issued under this
Indenture, as amended or supplemented from time to time
pursuant to this Indenture.
"Offer Period" has the meaning set forth in
Section 4.18(c).
19
"Officer" means the Chairman of the Board, Chief
Executive Officer, Chief Financial Officer, the President,
any Vice President, the Treasurer or the Secretary of the
Company or Holding, as the case may be.
"Officers' Certificate" means a certificate signed
by two Officers.
"Opinion of Counsel" means a written opinion in
form and substance reasonably satisfactory to the Trustee
from legal counsel who is reasonably acceptable to the
Trustee. The counsel may be an employee of or counsel to
the Company or the Trustee.
"Pari Passu Indebtedness" means any Indebtedness
of the Company or any Note Guarantor ranking pari passu with
the Notes or the applicable Note Guarantee, respectively.
"Participants" has the meaning set forth in
Section 2.06.
"Paying Agent" has the meaning set forth in Sec-
tion 2.03, except that, for the purposes of Sections 4.18
and 4.19 and Articles Three and Eight, the Paying Agent
shall not be the Company or a Subsidiary of the Company or
any of their respective Affiliates.
"Payment Blockage Period" shall have the meaning
set forth in Section 11.03.
"Payment Default" means any default in the payment
when due (whether at Stated Maturity, by acceleration or
otherwise) of principal of or interest on, or of
unreimbursed amounts under drawn letters of credit or fees
relating to letters of credit constituting, any Senior
Indebtedness or Guarantor Senior Indebtedness, as applicable
of the Company or any Note Guarantor.
"Permitted Guarantee" means (i) any Guarantee of
Acquired Indebtedness given by any Restricted Subsidiary
prior to (and not in contemplation of) the Incurrence of
such Acquired Indebtedness by the Company or a Restricted
Subsidiary, which Guarantee and Acquired Indebtedness are
Incurred pursuant to clause (vi) of paragraph (b) (or, in
the case of Acquired Indebtedness of the Company,
Section 4.08(a)) or (ii) any Guarantee by the Company of the
obligations of Ciba-Geigy AG or its Affiliates under its
Guarantee to the Pension Benefit Guaranty Corporation with
20
respect to any unfunded liabilities of any employee benefit
plan of the Company.
"Permitted Holder" means AEA and its current,
former and future employees, stockholders, directors and
officers and the Company's officers, and (i) trusts for the
benefit of such Persons or the spouses, issue, parents or
other relatives of such Persons, (ii) entities controlling
or controlled by such Persons and (iii) in the event of the
death of any such individual Person, heirs or testamentary
legatees of such Person.
"Permitted Investment" means any of the following:
(i) Investments in Cash Equivalents, (ii) Investments in the
Company or in any Restricted Subsidiary (including any
Person that thereby becomes a Restricted Subsidiary),
(iii) Investments in existence on the Issue Date,
(iv) receivables owing to the Company or any Restricted
Subsidiary, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with
customary trade terms, (v) Interest Rate Agreements designed
to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates in respect of Indebtedness of
the Company or any Restricted Subsidiary, and Currency
Agreements designed to protect the Company or any Restricted
Subsidiary against fluctuations in foreign currency exchange
rates in respect of foreign exchange exposures incurred by
the Company or any Restricted Subsidiary in the ordinary
course of business, in each case, permitted by Section 4.08,
(vi) Investments in the Notes, (vii) Investments in a joint
venture or similar entity that is not a Restricted
Subsidiary and is primarily engaged in a Related Business,
not to exceed $20,000,000 at any time, (viii) Investments in
securities of any Person received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or
insolvency of such Person, (ix) Investments received by the
Company or its Restricted Subsidiaries as consideration for
Asset Sales effected in compliance with Section 4.18,
(x) Investments in an amount not exceeding $5,000,000 in the
aggregate outstanding at any time, and (xi) any Investment
in Ciba-Geigy AG or any Affiliate thereof resulting from the
advancement of amounts not exceeding SFr 38 million equal to
withholding taxes payable in connection with dividends paid
to Ciba-Geigy AG or any Affiliate thereof in connection with
the Acquisition, pending receipt of refund of such
withholding taxes.
"Permitted Junior Securities" means, (i) for
purposes of Article Eleven (so long as the effect of any
21
exclusion employing this definition is not to cause the
Notes to be treated in any case or proceeding or similar
event described in clauses (a), (b) or (c) of Section 11.02
as part of the same class of claims as the Senior Indebt
edness or any class of claims pari passu with, or senior to,
the Senior Indebtedness for purposes of any payment or
distribution) debt or equity securities of the Company or
any successor corporation provided for by a plan of reor-
ganization or readjustment that are subordinated at least to
the same extent that the Notes are subordinated to the
payment of all Senior Indebtedness; provided that (a) if a
new corporation results from such reorganization or read
justment, such corporation assumes any Senior Indebtedness
not paid in full in cash or Cash Equivalents in connection
with such reorganization or readjustment and (b) the rights
of the holders of such Senior Indebtedness are not, without
the consent of such holders, altered or impaired by such
reorganization or readjustment, and (ii) for purposes of
Article Ten, any Guarantee by a Note Guarantor of a
Permitted Junior Security of the Company described in clause
(i) above; provided that such Guarantee is subordinated to
the payment of all Guarantor Senior Indebtedness at least to
the same extent that the Note Guarantees are subordinated to
the payment of all Guarantor Senior Indebtedness, and such
Guarantee is subject to provisions substantially similar to
those set forth in Article Ten.
"Permitted Lien" means (i) any Lien as existing on
the Issue Date and listed on Schedule 1 to this Indenture;
(ii) any Lien on any property or assets of a Restricted
Subsidiary granted in favor of the Company or any Restricted
Subsidiary; (iii) any Lien securing the Notes or any Note
Guarantee; (iv) any Lien securing Acquired Indebtedness
Incurred pursuant to Section 4.08(b)(vi), which Lien (x) is
created prior to (and not in connection with or in
contemplation of) the Incurrence of such Acquired
Indebtedness by the Company or any Restricted Subsidiary,
and (y) does not extend to any property or assets of the
Company or any Restricted Subsidiary other than the assets
acquired in connection with the Incurrence of such Acquired
Indebtedness; (v) any Lien securing any Indebtedness
Incurred pursuant to Section 4.08(b)(xi), provided, however,
that such Lien may not extend to any other property owned by
the Company or any Restricted Subsidiary at the time such
Lien is Incurred; (vi) any Lien in favor of the Trustee
under this Indenture; and (vii) any extension, renewal or
replacement in whole or in part, of any Lien described in
the foregoing clauses (i) through (vi), provided that any
such extension, renewal or replacement shall be no more
22
restrictive in any material respect than the Lien so
extended, renewed or replaced and shall not extend to any
additional property or assets.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated
organization, government or any agency or political
subdivision thereof, or any other entity.
"Predecessor Note" means, with respect to any
particular Note, every previous Note evidencing all or a
portion of the same debt as that evidenced by such par-
ticular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 2.07 hereof
in exchange for a mutilated Note or in lieu of a lost,
destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock", as applied to the Capital Stock
of any Person, means Capital Stock of any class or classes
(however designated) that 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
Person, over shares of Capital Stock of any other class of
such Person.
"Public Equity Offering" means an underwritten
public offering of newly issued shares of common stock of MT
Investors, Holding or the Company pursuant to an effective
registration statement under the Securities Act, on a
primary basis (whether alone or in conjunction with any
secondary public offering).
"Public Market" means an established public
trading market existing after a Public Equity Offering has
been consummated.
"Purchase Money Obligation" means any Indebtedness
secured by a Lien on real or personal property related to
the business of the Company or any Restricted Subsidiary
that is purchased by the Company or any Restricted
Subsidiary after the Issue Date; provided that (i) any
security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such
property is created shall be entered into within 180 days
after the purchase of such property and shall at all times
be confined solely to such property, (ii) at no time shall
the aggregate principal amount of the Indebtedness secured
23
by such property be increased and (iii)(A) the Indebtedness
secured thereby shall not exceed the purchase price of such
property or (B) the Indebtedness secured thereby shall be
with recourse solely to such property.
"Redeemable Capital Stock" means any class or
series of Capital Stock that, either by its terms, by the
terms of any security into which it is convertible or
exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required
to be redeemed, or matures, on or prior to the 91st day
after any Stated Maturity of the Notes, or is redeemable at
the option of the holder thereof at any time on or prior to
the 91st day after any Stated Maturity of the Notes, or, at
the option of the holder thereof, is convertible into or
exchangeable for Indebtedness or Redeemable Capital Stock at
any time on or prior to the 91st day after any Stated
Maturity of the Notes.
"Redemption Date" means, with respect to any Note
to be redeemed, the date fixed by the Company for such
redemption pursuant to this Indenture and the Notes.
"Redemption Price" means, with respect to any Note
to be redeemed, the price fixed for such redemption pursuant
to the terms of this Indenture and the Notes.
"Refinancing Costs" means, with respect to any
refinancing of term loan borrowings under the Credit
Agreement, an amount equal to (x) the lesser of (I) the
stated amount of any premium or other payment required to be
paid in connection with such refinancing pursuant to the
Credit Agreement and (II) the amount of premium or other
payment actually paid by the Company, Swiss Subholding or
any Restricted Subsidiary at such time to refinance such
borrowings, plus (y) the amount of expenses of the Company,
Swiss Subholding or any Restricted Subsidiary incurred in
connection with such refinancing.
"Registrar" shall have the meaning set forth in
Section 2.03.
"Related Business" means the businesses of the
Company and the Restricted Subsidiaries as conducted on the
Issue Date, and any businesses related, ancillary or
complementary to such businesses.
"Related Currency and Interest Rate Protection
Obligations" means all monetary obligations of every nature
24
of the Company or a Note Guarantor under or in respect of
any Currency Agreement or Interest Rate Agreement of the
Company or such Note Guarantor either (a) to the extent such
monetary obligations relate to Credit Agreement Obligations
or (b) to the extent such monetary obligations are secured
by collateral securing Credit Agreement Obligations.
"Restricted Payment" shall have the meaning set
forth in Section 4.09.
"Restricted Subsidiary" means any Subsidiary of
the Company other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement
relating to property now owned or hereafter acquired by the
Company or a Restricted Subsidiary, whereby the Company or a
Restricted Subsidiary transfers such property to a Person
and the Company or a Restricted Subsidiary leases it from
such Person.
"S&P" means Standard & Poor's Rating Group (a
division of McGraw Hill Inc.) or any successor rating
agency.
"SEC" means the Securities and Exchange
Commission.
"Secured Indebtedness" means any Indebtedness of
the Company or any Subsidiary of the Company secured by a
Lien.
"Securities Act" means the Securities Act of 1933,
as amended.
"Senior Indebtedness" means the principal of,
premium, if any, and interest (including any interest
accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign
law) on and other amounts due on or in connection with
(including any fees, premiums, expenses, including costs of
collection, and indemnities) any Indebtedness of the
Company, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without
25
limiting the generality of the foregoing, "Senior
Indebtedness" shall also include the principal of, premium,
if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under
applicable state, federal or foreign law) on, and all other
amounts owing in respect of, (i) all Credit Agreement
Obligations of the Company and (ii) all Related Currency and
Interest Rate Protection Obligations of the Company, in each
case whether outstanding on the Issue Date or thereafter
created, incurred or assumed and including in respect of
claims under guarantees, claims for indemnity, claims in
relation to Related Currency and Interest Rate Protection
Obligations, expense reimbursement and fees. Notwithstand-
ing the foregoing, "Senior Indebtedness" shall not include
(a) Indebtedness evidenced by the Notes, (b) Indebtedness
that is pari passu with or expressly subordinated or junior
in right of payment to any Senior Indebtedness of the
Company, (c) Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of Xxxxx 00,
Xxxxxx Xxxxxx Code, is by its terms without recourse to the
Company, (d) any repurchase, redemption or other obligation
in respect of Redeemable Capital Stock of the Company,
(e) to the extent it might constitute Indebtedness, amounts
owing for goods, materials or services purchased in the
ordinary course of business or consisting of trade payables
or other current liabilities (other than any current
liabilities owing under the Credit Agreement Obligations or
the current portion of any long-term Indebtedness which
would constitute Senior Indebtedness but for the operation
of this clause (e)), (f) to the extent it might constitute
Indebtedness, amounts owed by the Company for compensation
to employees or for services rendered to the Company, (g) to
the extent it might constitute Indebtedness, any liability
for federal, state, local, foreign or other taxes owed or
owing by the Company, (h) Indebtedness of the Company to a
Subsidiary of the Company and (i) that portion of any
Indebtedness of the Company which at the time of Incurrence
is Incurred in violation of this Indenture; provided,
however, that such Indebtedness shall be deemed not to have
been Incurred in violation of this Indenture for purposes of
this clause (i) if (x) the holder(s) of such Indebtedness or
their representative or the Company shall have furnished to
the Trustee an opinion of recognized independent legal
counsel, unqualified in all material respects, addressed to
the Trustee (which legal counsel may, as to matters of fact,
rely upon an Officers' Certificate of the Company) to the
effect that the Incurrence of such Indebtedness does not
26
violate the provisions of this Indenture or (y) such
Indebtedness consists of Credit Agreement Obligations, and
the holder(s) of such Indebtedness or their agent or
representative (1) had no actual knowledge at the time of
Incurrence that the Incurrence of such Indebtedness violated
this Indenture and (2) shall have received a certificate
from an Officer of the Company to the effect that the
Incurrence of such Indebtedness does not violate the
provisions of this Indenture.
"Senior Representative" means the Bank Agent or
any other representatives designated in writing to the
Trustee of the holders of any class or issue of Designated
Senior Indebtedness; provided that, in the absence of a
representative of the type described above, any holder or
holders of a majority of the principal amount outstanding of
any class or issue of Designated Senior Indebtedness may
collectively act as Senior Representative for such class or
issue.
"Senior Subordinated Indebtedness" means the Notes
and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to rank pari passu with
the Notes and is not subordinated by its terms to any
Indebtedness or other obligation of the Company that is not
Senior Indebtedness.
"Senior Subordinated Note Obligations" means
(i) any principal of, premium, if any, and interest on, and
any other amounts owing in respect of, the Notes payable
pursuant to the terms of the Notes or this Indenture or upon
acceleration of the Notes, including, without limitation,
amounts received upon the exercise of rights of rescission
or other rights of action (including claims for damages) or
otherwise, to the extent relating to the purchase price of
the Notes or amounts corresponding to such principal of,
premium, if any, interest, or other amounts owing with
respect to, the Notes and (ii) in the case of any Note
Guarantor, any obligations with respect to the foregoing or
otherwise under its Note Guarantee.
"SFr" means Swiss francs, the lawful money of
Switzerland.
"Significant Note Guarantor" means (x) Holding or
(y) any other Note Guarantor that would be a "significant
subsidiary" of the Company as defined in Rule 1-02 of
Regulation S-X under the Securities Act and the Exchange
Act, as such Rule is in effect on the Issue Date, provided
27
that for purposes of this definition, all references in such
Rule 1-02 to "10 percent" shall be deemed to be "5 percent".
"Significant Restricted Subsidiary" means any
Restricted Subsidiary of the Company that would be a
"significant subsidiary" of the Company as defined in Rule
1-02 of Regulation S-X under the Securities Act and the
Exchange Act, as such Rule is in effect on the Issue Date.
"Specified Indebtedness" means (i) any
Indebtedness of the Company or any Note Guarantor that is
Pari Passu Indebtedness or Subordinated Indebtedness or
(ii) any Indebtedness of any Restricted Subsidiary that is
Subordinated Indebtedness, provided, however, that Specified
Indebtedness shall never include any Credit Agreement
Obligation otherwise constituting Guarantor Senior
Indebtedness or Senior Indebtedness.
"Specified Senior Indebtedness" means any Senior
Indebtedness, Guarantor Senior Indebtedness, or Indebtedness
of any Restricted Subsidiary (other than a Note Guarantor)
that is not Subordinated Indebtedness.
"Specified U.S. Subsidiary Indebtedness" means
Indebtedness of any U.S. Restricted Subsidiary (a) owing to
and held by the Company or any U.S. Restricted Subsidiary
Incurred pursuant to Section 4.08(b)(iv), (b) Incurred
pursuant to clause (vi), (viii), (ix), (x), (xiv), (xv)(1),
(xv)(2), (xvi)(A) or (xvi)(B) of Section 4.08(b) or (c)
Incurred pursuant to Section 4.08(b)(xviii) to refinance
Indebtedness previously Incurred pursuant to Section
4.08(b)(vi).
"Stated Maturity" means, when used with respect to
any security, the date specified in such security as the
fixed date on which the payment of principal of such
security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision
providing for the purchase of such security at the option of
the holder thereof upon the happening of any contingency
beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Indebtedness" means (i) any
Indebtedness of the Company or any Note Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) that
is subordinated or junior in right of payment to the Notes
or any Note Guarantee or (ii) Indebtedness of any Restricted
Subsidiary (other than a Note Guarantor) that is
28
subordinated or junior in right of payment to any other
Indebtedness of such Restricted Subsidiary.
"Subsidiary" of any Person means any corporation,
association, partnership, limited liability company or other
business entity of which more than 50% of the total voting
power of shares of Capital Stock (including partnership or
other equity interests) generally entitled (without the
incurrence 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 or
(ii) one or more Subsidiaries of such Person.
"Surviving Entity" has the meaning set forth in
Section 5.01.
"Swiss Subholding" means Xxxxxxx-Xxxxxx Holding
AG, a Swiss corporation.
"Tax Sharing Agreement" means the Tax Sharing
Agreement, dated the date hereof, between the Company and MT
Investors, as in effect on the Issue Date and as the same
may be amended from time to time in any manner not adverse
to the Holders.
"TIA" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, provided, however,
that in the event the Trust Indenture Act of 1939 is amended
after such date, "TIA" means to the extent required by such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Officer" means the Chairman of the Board,
the President or any other officer or assistant officer of
the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Trustee" means the party named as such in this
Indenture until a successor replaces it and, thereafter,
means the successor.
"Unrestricted Subsidiary" means (i) any Subsidiary
of the Company that at the time of determination shall be an
Unrestricted Subsidiary (as designated by the Board of
Directors as provided below) and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may
designate (a "Designation") any Subsidiary of the Company
(other than a Subsidiary that is a Note Guarantor or owns
any Capital Stock of, or owns, or holds any Lien on, any
property of the Company or any other Subsidiary of the
29
Company that is not a Subsidiary of the Subsidiary to be so
designated) to be an Unrestricted Subsidiary if: (a) no
Default shall have occurred and be continuing at the time of
or after giving effect to such Designation; (b) the Company
could make an Investment at the time of such Designation
(assuming the effectiveness thereof) in an amount (the
"Designation Amount") equal to the Fair Market Value of the
Capital Stock of such Subsidiary on such date; and (c) the
Company could incur $1.00 of additional Indebtedness under
Section 4.08(a) at the time of such Designation (assuming
the effectiveness thereof). In the event of any such
Designation, the Company shall be deemed to have made an
Investment constituting a Restricted Payment pursuant to
Section 4.09 for all purposes of this Indenture in the
Designation Amount. The Board of Directors may revoke (a
"Revocation") any Designation of a Subsidiary as an
Unrestricted Subsidiary if: (a) no Default shall have
occurred and be continuing at the time of and after giving
effect to such Revocation; (b) the Company could Incur $1.00
of additional Indebtedness under Section 4.08(a) at the time
of such Revocation (assuming the effectiveness thereof); and
(c) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation
would, if Incurred at such time, have been permitted to be
Incurred under this Indenture. Any Designation or
Revocation must be evidenced by a Board Resolution
certifying compliance with the foregoing provisions.
The Company shall not, and shall not permit any
Restricted Subsidiary to, at any time (i) provide a
Guarantee of any Indebtedness of any Unrestricted
Subsidiary, (ii) be directly or indirectly liable for any
Indebtedness of any Unrestricted Subsidiary or (iii) be
directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment
thereof to be accelerated or payable prior to its final
scheduled maturity upon the occurrence of a default with
respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such
Unrestricted Subsidiary), except in the case of clause (i)
or (ii) to the extent permitted under Section 4.09. No
Unrestricted Subsidiary shall at any time Guarantee any
obligation of the Company or any Restricted Subsidiary.
"U.S. Government Obligations" means direct
obligations (or certificates representing an ownership
interest in such obligations) of the United States of
America (including any agency or instrumentality thereof)
30
for the payment of which the full faith and credit of the
United States of America is pledged and which are not
callable or redeemable at the issuer's option.
"U.S. Restricted Subsidiary" means any Restricted
Subsidiary of the Company (a) organized under the laws of
the United States of America, any state thereof or the
District of Columbia or (b) a majority of the assets
(excluding equity investments in other Persons) of which are
located in the United States of America based on the Fair
Market Value of such assets (as determined in good faith by
the Board of Directors).
"U.S. Significant Subsidiary" means any U.S.
Restricted Subsidiary (other than any Note Guarantor) that
individually is, or taken together with other U.S.
Restricted Subsidiaries (other than any Note Guarantor)
would be, a Significant Restricted Subsidiary.
"Voting Stock" means any class or classes of
Capital Stock pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers, or
trustees of any Person (irrespective of whether or not, at
the time, stock of any other class or classes shall have, or
might have, voting power by reason of the happening of any
contingency).
"Wholly Owned Non-U.S. Subsidiary" means a
Non-U.S. Restricted Subsidiary of the Company all the
Capital Stock of which (other than nominal directors'
qualifying shares) is owned by the Company or another Wholly
Owned Non-U.S. Subsidiary.
"Wholly Owned Subsidiary" means a Restricted
Subsidiary of the Company all the Capital Stock of which
(other than nominal directors' qualifying shares) is owned
by the Company or another Wholly Owned Subsidiary.
Section 1.02. Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a pro
vision of the TIA, the provision is incorporated by ref
erence in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following mean-
ings:
"Commission" means the SEC;
31
"indenture notes" means the Notes and the Note
Guarantees;
"indenture noteholder" means a Noteholder or
Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee"
means the Trustee; and
"obligor" on the indenture notes means the
Company, Holding or any other obligor on the Notes.
All other TIA terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule and not otherwise defined
herein have the meanings assigned to them therein.
Section 1.03. Rules of Construction. For all
purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) words in the singular include the plural, and
words in the plural include the singular;
(c) "or" is not exclusive;
(d) provisions apply to successive events and
transactions;
(e) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles, as in
effect from time to time unless reference to GAAP is
made with respect to any specific accounting term; and
(f) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Inden-
ture as a whole and not to any particular Article,
Section or other subdivision.
32
ARTICLE TWO
THE NOTES
Section 2.01. Forms and Dating. The Notes and
the Trustee's certificate of authentication thereon shall be
in substantially the form of Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture
and may have such letters, numbers or other marks of iden-
tification and such legends or endorsements placed thereon
as may be required to comply with any applicable law or with
the rules of any securities exchange or as may, consistently
herewith, be determined by the Officers executing such
Notes, as evidenced by their execution thereof. The Notes
shall be issuable only in registered form without coupons
and only in denominations of $1,000 and integral multiples
thereof.
The definitive Notes and Note Guarantees shall be
printed, typewritten, lithographed or engraved or produced
by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined
by the Officers executing such Notes, as evidenced by their
execution of such Notes. Each Note shall be dated the date
of its authentication.
The terms and provisions contained in the form of
the Notes, annexed hereto as Exhibit A shall constitute, and
are hereby expressly made, a part of this Indenture and, to
the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(a) Global Note. The Notes shall be issued
initially in the form of one Global Note (the "Global Note")
in definitive, fully registered form without interest
coupons in substantially the form of Exhibit A, which shall
be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York City
office, as custodian for the Depository, and registered in
the name of the Depository or a nominee of the Depository,
duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal
amount of the Global Note may from time to time be increased
or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee in the limited
circumstances hereinafter provided.
33
(b) Certificated Notes. Except as provided in
Section 2.06, owners of beneficial interests in the Global
Note will not be entitled to receive physical delivery of
certificated securities.
Section 2.02. Execution and Authentication. Two
Officers of the Company shall execute the Notes on behalf of
the Company by either manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or
reproduced on the Notes.
If an Officer of the Company whose signature is on
a Note no longer holds that office at the time the Trustee
authenticates the Note or at any time thereafter, the Note
shall be valid nevertheless.
A Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of
authentication on the Note. Such signature shall be con-
clusive evidence that the Note has been authenticated under
this Indenture.
The Trustee shall authenticate Notes for original
issue in an aggregate principal amount not to exceed
$115,000,000 upon receipt of an Officers' Certificate of the
Company directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of
the Notes contained herein have been complied with. The
aggregate principal amount of Notes outstanding at any time
may not exceed $115,000,000, except as provided in Sections
2.07 and 2.08.
With the approval of the Company, the Trustee may
appoint an authenticating agent acceptable to the Company to
authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authen-
tication by such agent. Such authenticating agent shall
have the same rights as the Trustee in any dealings here-
under with the Company or with any of the Company's Affil-
iates.
Section 2.03. Registrar and Paying Agent. The
Company shall maintain in New York City an office or agency
where Notes may be presented for registration of transfer or
for exchange (the "Registrar"), an office or agency where
Notes may be presented for payment (the "Paying Agent") and
an office or agency where notices and demands to or upon the
34
Company in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Company may have
one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional
paying agent. Except as otherwise expressly provided in
this Indenture, the Company or any Affiliate thereof may act
as Paying Agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture,
which shall incorporate the provisions of the TIA. The
agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the
Trustee of the name and address of any such Agent. If the
Company fails to maintain a Registrar, Paying Agent or agent
for service of notices and demands, or fails to give the
foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with
Section 7.08.
The Company hereby initially appoints the Trustee
as Registrar, Paying Agent and agent for service of notices
and demands in connection with the Notes.
Section 2.04. Paying Agent to Hold Money in
Trust. Each Paying Agent shall hold in trust for the bene-
fit of the Holders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on
the Notes (whether such money has been distributed to it by
the Company or any other obligor on the Notes), and the
Company and the Paying Agent shall notify the Trustee of any
default by the Company (or any other obligor on the Notes)
in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money and hold
it as a separate trust fund. The Company at any time may
require a Paying Agent to distribute all money held by it to
the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any
payment default with respect to the Notes, upon written
request to a Paying Agent, require such Paying Agent to pay
all money held by it to the Trustee and to account for any
funds distributed. Upon doing so, the Paying Agent (other
than an obligor under the Notes or any Note Guarantee) shall
have no further liability for the money so paid over to the
Trustee.
Section 2.05. Noteholder Lists. The Trustee
shall preserve in as current a form as is reasonably prac-
35
ticable the most recent list available to it of the names
and addresses of the Holders and shall otherwise comply with
TIA Section 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least ten
Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing a list in
such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders, which list
may be conclusively relied upon by the Trustee.
Section 2.06. Transfer and Exchange. When Notes
are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Notes or to
exchange such Notes for an equal principal amount of Notes
of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if
its requirements for such transfer or exchange are met;
provided that the Notes surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the
Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing. To permit
registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the
Registrar's request. No service charge shall be made for
any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges or
transfers pursuant to Sections 2.02, 2.07, 2.10, 3.06, 4.18,
4.19 or 9.05). The Registrar shall not be required to
register the transfer of or exchange of any Note (i) during
a period beginning at the opening of business 15 days before
the mailing of a notice of redemption of Notes and ending at
the close of business on the day of such mailing and (ii)
selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note
being redeemed in part.
With respect to the Global Note:
(1) The Global Note authenticated under this
Indenture shall be registered in the name of the
Depository designated for the Global Note or a nominee
thereof and deposited with such Depository or a nominee
thereof or custodian therefor, and such Global Note
shall constitute a single Note for all purposes of this
Indenture.
36
(2) A Global Note may not be transferred except
as a whole by the Depository to a nominee of the
Depository. A Global Note is exchangeable for
certificated Notes only if (i) the Depository notifies
the Company that it is unwilling or unable to continue
as a Depository for such Global Note or if at any time
the Depository ceases to be a clearing agency
registered under the Exchange Act, (ii) the Company
executes and delivers to the Trustee a notice that such
Global Note shall be so transferable, registrable, and
exchangeable, and such transfers shall be 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 Notes represented
by such Global Note. Any Global Note that is
exchangeable for certificated Notes pursuant to the
preceding sentence will be transferred to, and
registered and exchanged for, certificated Notes in
authorized denominations, without legends applicable to
a Global Note, and registered in such names as the
Depository holding such Global Note may direct.
Subject to the foregoing, a Global Note is not
exchangeable, except for a Global Note of like
denomination to be registered in the name of the
Depository or its nominee. In the event that a Global
Note becomes exchangeable for certificated securities,
(x) certificated Notes will be issued only in fully
registered form in denominations of $1,000 or integral
multiples thereof, (y) payment of principal, any
repurchase price, and interest on the certificated
Notes will be payable, and the transfer of the
certificated Notes will be registrable, at the office
or agency of the Company maintained for such purposes,
and (z) no service charge will be made for any
registration or transfer or exchange of the
certificated Notes, although the Company may require
payment of a sum sufficient to cover any tax or
governmental charge imposed in connection therewith.
(3) Notes issued in exchange for a Global Note or
any portion thereof shall have an aggregate principal
amount equal to that of such Global Note or portion
thereof to be so exchanged, shall be registered in such
names and be in such authorized denominations as the
Depository shall designate and shall bear the
applicable legends provided for herein. Any Global
Note to be exchanged in whole shall be surrendered by
the Depository to the Trustee. With respect to any
37
Global Note to be exchanged in part, either such Global
Note shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depository or
its nominee with respect to such Global Note, the
principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by
means of an appropriate adjustment made on the records
of the Trustee. Upon any such surrender or adjustment,
the Trustee shall authenticate and deliver the Note
issuable on such exchange to or upon the order of the
Depository or an authorized representative thereof.
(4) Every security authenticated and delivered
upon registration of transfer of, or in exchange for or
in lieu of, a Global Note or any portion mutilated
thereof, whether pursuant to this Section, Section 2.07
or 2.10 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Note,
unless such Note is registered in the name of a Person
other than the Depository for such Global Note or a
nominee thereof.
Members of, or participants in, the Depository
("Participants") shall have no rights under this Indenture
with respect to the Global Note held on their behalf by the
Depository or by the Trustee as the custodian of the
Depository or under such Global Note, and the Depository may
be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as
between the Depository and its Participants, the operation
of customary practices of such Depository governing the
exercise of the rights of a holder of a beneficial interest
in the Global Note.
Section 2.07. Replacement Notes. If a mutilated
Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrong-
fully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Trustee's require-
ments are met. If required by the Trustee or the Company,
such Holder must provide an indemnity bond or other indem-
nity, sufficient in the judgment of both the Company and the
Trustee, to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Note is
38
replaced. The Company and the Trustee may charge such
Holder for its reasonable, out-of-pocket expenses in
replacing a Note, including reasonable fees and expenses of
counsel. Every replacement Note is an additional obligation
of the Company.
Section 2.08. Outstanding Notes. Notes out-
standing at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it,
those delivered to it for cancellation, those described in
this Section 2.08 as not outstanding and those deemed
satisfied pursuant to Article Eight. A Note does not cease
to be outstanding because the Company or any of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07
(other than a mutilated Note surrendered for replacement),
it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be out-
standing upon surrender of such Note and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date or a Maturity Date the
Paying Agent (other than the Company or an Affiliate of the
Company) holds cash or U.S. Government Obligations suf-
ficient to pay all of the principal and interest due on the
Notes payable on that date, and is not prohibited from
paying such cash or U.S. Government Obligations to the
Holders of such Notes pursuant to the terms of this Inden-
ture, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue.
Section 2.09. Treasury Notes. In determining
whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent,
Notes owned by the Company or any of its Affiliates shall be
disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which the
Trustee knows or has reason to know are so owned shall be
disregarded.
Section 2.10. Temporary Notes. Until definitive
Notes are prepared and ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of defin-
itive Notes but may have variations that the Company con-
xxxxxx appropriate for temporary Notes. Without unrea-
39
sonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for tem-
porary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as
definitive Notes.
Section 2.11. Cancellation. The Company at any
time may deliver Notes to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee,
the Registrar or the Paying Agent (other than the Company or
a Subsidiary of the Company), and no one else, shall cancel
and, at the written direction of the Company, shall dispose
of all Notes surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not
issue new Notes to replace Notes that it has paid or deliv-
ered to the Trustee for cancellation. If the Company shall
acquire any of the Notes, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness repre-
sented by such Notes unless and until the same are sur-
rendered to the Trustee for cancellation pursuant to this
Section 2.11.
Section 2.12. Defaulted Interest. If the Company
defaults on a payment of interest on the Notes, it shall pay
the defaulted interest, plus (to the extent permitted by
law) any interest payable on the defaulted interest, in
accordance with the terms hereof, to the Persons who are
Noteholders on a subsequent special record date, which date
shall be at least ten Business Days prior to the payment
date. The Company shall fix such special record date and
payment date in a manner satisfactory to the Trustee. At
least 15 days before such special record date, the Company
shall mail to each Noteholder a notice that states the
special record date, the payment date and the amount of
defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.
The Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with
the requirements (if applicable) of any securities exchange
on which the Notes 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 paragraph, such manner of payment shall be deemed
practicable by the Trustee.
40
Section 2.13. CUSIP Number. The Company in
issuing the Notes may use a "CUSIP" number (if then gen-
erally in use), and if so, the Trustee may use the CUSIP
numbers in notices of redemption or exchange as a con-
venience to Holders; provided that any such notice may state
that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the
Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company
will promptly notify the Trustee of any change in the CUSIP
number.
Section 2.14. Deposit of Moneys. On or before
each Interest Payment Date and Maturity Date, the Company
shall deposit with the Trustee or Paying Agent in imme-
diately available funds money sufficient to make cash pay-
ments, if any, due on such Interest Payment Date or Maturity
Date, as the case may be, in a timely manner which permits
the Paying Agent to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be;
provided that the Company may make any such deposit in next
day funds on or before the Business Day before each Interest
Payment Date and Maturity Date.
Section 2.15. Computation of Interest. Interest
payable on the Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF NOTES
Section 3.01. Notices to the Trustee. If the
Company elects to redeem Notes pursuant to Paragraphs 4(a)
or (b) of the Notes, it shall notify the Trustee of the
Redemption Date and principal amount of Notes to be
redeemed.
The Company shall notify the Trustee by an Offi-
cers' Certificate, stating that such redemption will comply
with the provisions hereof and of the Notes, of any redemp-
tion at least 45 days before the Redemption Date (unless a
shorter notice period shall be satisfactory to the Trustee).
Section 3.02. Selection of Notes to Be Redeemed.
In the event that less than all of the Notes are to be
redeemed at any time, selection of such Notes for redemption
will be made by the Trustee in compliance with the
41
requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are
not then listed on a national securities exchange (or if the
Notes are so listed but the exchange does not impose
requirements with respect to the selection of debt
securities for redemption), on a pro rata basis, by lot or
by such other method as the Trustee shall deem fair and
appropriate; provided that no Notes of a principal amount of
$1,000 or less shall be redeemed in part.
The Trustee shall promptly notify the Company and
the Registrar in writing of the Notes selected for redemp-
tion and, in the case of any Notes 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 Notes shall relate, in the case of any Note
redeemed or to be redeemed only in part, to the portion of
the principal amount of such Note which has been or is to be
redeemed.
Section 3.03. Notice of Redemption. Notice of
redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Notes to be
redeemed, at the address of such Holder appearing in the
Note register maintained by the Registrar.
All notices of redemption shall identify the Notes
to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of
accrued interest, if any, to be paid;
(c) that, unless the Company defaults in making
the redemption payment, interest on Notes called for
redemption ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption
Price upon surrender to the Paying Agent of the Notes
redeemed;
(d) if any Note is to be redeemed in part only,
the portion of the principal amount (equal to $1,000 or
any integral multiple thereof) of such Note to be
redeemed and that on and after the Redemption Date,
42
upon surrender for cancellation of such Note to the
Paying Agent, a new Note or Notes in the aggregate
principal amount equal to the unredeemed portion
thereof will be issued without charge to the Note-
holder;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemp-
tion Price and the name and address of the Paying
Agent;
(f) the CUSIP number, if any, relating to such
Notes;
(g) the paragraph of the Notes pursuant to which
the Notes are being redeemed; and
(h) no representation is made as to the accuracy
or correctness of the CUSIP number, if any, listed in
such notice or printed on the Notes.
Notice of redemption of Notes to be redeemed at
the election of the Company shall be given by the Company
or, at the Company's written request, by the Trustee in the
name and at the expense of the Company.
The notice, if mailed in the manner provided
herein, shall be conclusively presumed to have been given,
whether or not the Holder receives such notice. In any
case, failure to give such notice by mail or any defect in
the notice shall not affect the validity of the proceedings
for the redemption of any Note.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for
redemption become due and payable on the Redemption Date and
at the applicable Redemption Price (expressed as percentages
of principal amount). Upon surrender to the Paying Agent,
such Notes called for redemption shall be paid at the
Redemption Price, plus accrued interest, if any, to the
Redemption Date, but interest installments whose maturity is
on or prior to such Redemption Date will be payable on the
relevant Interest Payment Dates to the Holders of record at
the close of business on the relevant record dates referred
to in the Notes.
Section 3.05. Deposit of Redemption Price. On or
prior to any Redemption Date, the Company shall deposit with
the Paying Agent an amount of money in same day funds suf-
43
ficient to pay the Redemption Price of, and accrued interest
on, all the Notes or portions thereof which are to be
redeemed on that date, other than Notes or portions thereof
called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation.
If the Company complies with the preceding para-
graph, then, unless the Company defaults in the payment of
such Redemption Price, interest on the Notes to be redeemed
will cease to accrue on and after the applicable Redemption
Date, whether or not such Notes are presented for payment.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and, to
the extent lawful, accrued interest thereon shall, until
paid, bear interest from the Redemption Date at the rate
provided in the Notes.
Section 3.06. Notes Redeemed or Purchased in
Part. Upon surrender to the Paying Agent of a Note which is
to be redeemed in part, the Company shall execute, each Note
Guarantor shall Guarantee and the Trustee shall authenticate
and deliver to the Holder of such Note without service
charge, a new Note or Notes (accompanied by a notation of
Note Guarantee, duly endorsed by each such Note Guarantor),
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 Note so
surrendered that is not redeemed.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes. The Company
shall pay, or cause to be paid, the principal of and
interest on the Notes on the dates and in the manner
provided in the Notes and this Indenture. An installment of
principal or interest shall be considered paid on the date
due if the Trustee or Paying Agent (other than the Company,
a Subsidiary of the Company or any Affiliate of any thereof)
holds on that date money designated for and sufficient to
pay the installment and is not prohibited from paying such
money to the Holders of the Notes pursuant to the terms of
this Indenture.
The Company shall pay interest on overdue
principal at the rate and in the manner provided in the
Notes. The Company shall pay interest on overdue
44
installments of interest at the same rate and in the same
manner, to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where (i) the Notes
and the Note Guarantees may be surrendered for registration
of transfer or exchange, (ii) the Notes and the Note
Guarantees may be presented for payment and (iii) notices
and demands to or upon the Company or any Note Guarantor in
respect of the Notes, the Note Guarantees and this Indenture
may be served. The Company shall give prompt written notice
to the Trustee of the location, and any change in the loca-
tion, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee as set forth in
Section 12.02.
The Company may also from time to time designate
one or more other offices or agencies where the Notes and
the Note Guarantees may be presented or surrendered for any
or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescis-
sion shall in any manner relieve the Company of its obli-
gation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The
Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby initially designates the office
of the Trustee maintained at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as such office of the Company in accordance
with this Section 4.02.
Section 4.03. Corporate Existence. Subject to
Article Five, the Company shall do or cause to be done all
things necessary to and shall cause each of its Subsidiaries
to, preserve and keep in full force and effect the
corporate, partnership or limited liability company
existence and rights (charter and statutory), licenses
and/or franchises of the Company and each of its
Subsidiaries; provided that the Company or any of its
Subsidiaries shall not be required to preserve any such
existence (in the case of Subsidiaries), rights, licenses or
franchises if (x) the Company shall reasonably determine
that the preservation thereof is no longer desirable in the
45
conduct of the business of the Company and its Subsidiaries
taken as a whole or (y) the loss thereof is not materially
adverse to the Company and its Subsidiaries taken as a whole
or to the ability of the Company to otherwise satisfy its
obligations hereunder; provided, further, however, that the
foregoing shall not prohibit the sale, transfer or
conveyance of a Subsidiary or any of its assets in
compliance with the terms of this Indenture.
Section 4.04. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before any penalty accrues from the failure to
so pay or discharge, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (b) all material lawful
claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon the property of the Company
or any Subsidiary except for Permitted Liens; provided,
however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim the amount, applicability or
validity of which is being contested in good faith by
appropriate proceedings properly instituted and diligently
conducted and for which adequate provision (in the good
faith judgment of management of the Company) has been made
or where the failure to effect such payment or discharge is
not adverse in any material respect to the Holders or is not
materially adverse to the Company and its Subsidiaries taken
as a whole or to the ability of the Company to otherwise
satisfy its obligations hereunder.
Section 4.05. Maintenance of Properties. The
Company shall, and shall cause each of its Subsidiaries to,
cause all material properties and assets to be maintained
and kept in good condition, repair and working order
(ordinary wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all
necessary repairs, renewals, replacements, additions,
betterments and improvements thereto, as shall be reasonably
necessary for the proper conduct of its business; provided
that nothing in this Section 4.05 shall prevent the Company
or any Subsidiary from discontinuing the operation and
maintenance of any of its properties (x) if such
discontinuance is, in the judgment of the Company or of such
Subsidiary, desirable in the conduct of its business or (y)
if such discontinuance or disposal is not materially adverse
to the Company and its Subsidiaries taken as a whole or the
46
ability of the Company to otherwise satisfy its obligations
hereunder.
Section 4.06. Compliance Certificate. (a) The
Company shall deliver to the Trustee within 90 days after
the end of each fiscal year an Officers' Certificate stating
whether or not the signers know of any Default or Event of
Default under this Indenture that occurred during such
fiscal period. If they do know of such a Default or Event
of Default, the certificate shall describe any such Default
or Event of Default and its status. One of the persons
signing the Officers' Certificate given pursuant to this
Section 4.06 shall be the principal executive, financial or
accounting officer of the Company, in compliance with TIA
Section 314(a)(4).
(b) The Company shall deliver to the Trustee as
soon as possible, and in any event within 30 days after the
Company becomes aware or should reasonably have become aware
of the occurrence of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.07. Waiver of Stay, Extension or Usury
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 law
or other law which would prohibit or forgive the Company
from paying all or any portion of the principal of or
interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) the Company
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 4.08. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, Incur any Indebtedness (including
Acquired Indebtedness), unless such Incurrence is by the
Company, and on the date of such Incurrence the Consolidated
Coverage Ratio would be greater than 2.0:1.0, if such
Indebtedness is Incurred on or prior to December 31, 1998
and 2.25:1.0 if such Indebtedness is Incurred thereafter.
47
(b) Notwithstanding the foregoing paragraph (a),
the Company and, to the extent specifically set forth below,
its Restricted Subsidiaries may Incur the following
Indebtedness:
(i) Indebtedness of the Company or Swiss
Subholding under the Credit Agreement in an aggregate
principal amount at any time outstanding not to exceed
(x) an amount of term loan borrowings thereunder equal
to (1) the aggregate principal amount of term loan
borrowings by the Company or Swiss Subholding
outstanding under the Credit Agreement on the Issue
Date minus (2) the aggregate amount of all scheduled
repayments and mandatory repayments of term loan
borrowings thereunder, whether or not actually made
(unless any such repayment is waived or the relevant
provision requiring any such repayment is amended by
the lenders thereunder in accordance therewith), and
all other repayments of term loan borrowings actually
made thereunder (other than to the extent refinanced by
an equal principal amount of Indebtedness Incurred
under this clause (i)) plus (3) if such term loan
borrowings are refinanced pursuant to this clause (i),
an amount of Refinancing Costs paid in connection with
such refinancing, plus (y) $140,000,000 of revolving
credit borrowings thereunder (minus the aggregate
amount of Indebtedness of Non-U.S. Restricted
Subsidiaries Incurred pursuant to clause (xvii) of this
paragraph (b)), provided that
(A) the aggregate principal amount of term
loan borrowings by Swiss Subholding
outstanding under the Credit Agreement
at any time outstanding shall not exceed
an amount equal to (x) the aggregate
principal amount of term loan borrowings
by Swiss Subholding outstanding under
the Credit Agreement on the Issue Date
plus (y) if such term loan borrowings
are refinanced pursuant to this clause
(i), an amount of Refinancing Costs paid
in connection with such refinancing,
(B) any Indebtedness Incurred by Swiss
Subholding to renew, extend, substitute
for, refinance or replace (each, for
purposes of this clause (i), to
"refinance") any Indebtedness under the
Credit Agreement shall be Incurred only
48
in a transaction exempt from
registration requirements under United
States securities laws, and not pursuant
to a public offering in the United
States of America, and shall not be so
registered for resale in a public
offering in the United States of
America, and
(C) for purposes of determining the
outstanding principal amount of term
loan Indebtedness under this clause (i),
the aggregate principal amount of term
loan Indebtedness that is Incurred (x)
to refinance term loan Indebtedness
under the Credit Agreement and (y) in a
different currency from the Indebtedness
being refinanced, shall be calculated
based on the relevant currency exchange
rate in effect on the date of such
refinancing;
(ii) Indebtedness of the Company pursuant to the
Notes, Indebtedness of any Note Guarantor pursuant to
its Note Guarantee, and Indebtedness of any other
Restricted Subsidiary with respect to the Notes arising
by reason of any Lien granted by such Subsidiary to
secure the Notes;
(iii) Indebtedness of the Company or any
Restricted Subsidiary outstanding on the Issue Date
(other than Indebtedness under or in respect of the
Credit Agreement);
(iv) Indebtedness of the Company owing to and
held by any Restricted Subsidiary or Indebtedness of a
Restricted Subsidiary owing to and held by the Company
or any Restricted Subsidiary; provided, however, that
(x) any such Indebtedness is made pursuant to an
intercompany note, (y) any such Indebtedness of the
Company or any Note Guarantor is Subordinated
Indebtedness that is subordinated to the Notes or to
the applicable Note Guarantee as provided in such
intercompany note, and in any event at least to the
same extent as the Notes are subordinated to Senior
Indebtedness, and (z) any subsequent transfer of any
such Indebtedness (except to the Company or a
Restricted Subsidiary) will be deemed, in each case, to
49
constitute the Incurrence of such Indebtedness by the
issuer thereof;
(v) Acquisition Indebtedness of any Non-U.S.
Restricted Subsidiary Incurred after the Issue Date
(and not for the purpose of financing the Acquisition),
provided that (x) at the time of such Incurrence and
after giving effect thereto on a pro forma basis,
(A) no Default or Event of Default will have occurred
and be continuing or would result therefrom and (B) the
Company could Incur $1.00 of additional Indebtedness
pursuant to paragraph (a) above and (y) such
Indebtedness (unless Incurred by a Note Guarantor)
shall be Incurred only in a transaction exempt from
registration requirements under United States
securities laws, and not pursuant to a public offering
in the United States of America, and shall not be so
registered for resale in a public offering in the
United States of America;
(vi) Acquired Indebtedness of any Restricted
Subsidiary, provided that at the time of such
Incurrence and after giving effect thereto on a pro
forma basis, (x) no Default or Event of Default will
have occurred and be continuing or would result
therefrom and (y) the Company could Incur $1.00 of
additional Indebtedness pursuant to paragraph (a)
above;
(vii) Indebtedness of any Restricted Subsidiary
that is a Note Guarantor, provided that at the time of
such Incurrence and after giving effect thereto on a
pro forma basis, (x) no Default or Event of Default
will have occurred and be continuing or would result
therefrom and (y) the Company could Incur $1.00 of
additional Indebtedness pursuant to paragraph (a)
above;
(viii) Obligations of the Company or any
Restricted Subsidiary entered into in the ordinary
course of business (A) under Interest Rate Agreements
designed to protect such Person against fluctuations in
interest rates in respect of Indebtedness of such
Person permitted to be incurred under this Indenture,
which obligations do not exceed the aggregate principal
amount of such Indebtedness, and (B) under Currency
Agreements designed to protect such Person against
fluctuations in foreign currency exchange rates in
50
respect of foreign exchange exposures incurred by such
Person;
(ix) Obligations of the Company or any Restricted
Subsidiary in respect of (A) judgment, performance,
surety and other bonds provided by such Person with
respect to obligations of such Person in the ordinary
course of business, and (B)(x) letters of credit
securing obligations incurred in the ordinary course of
business or (y) other letters of credit in an amount
not to exceed $5,000,000 in the aggregate outstanding
at any time;
(x) Indebtedness of the Company or any Restricted
Subsidiary arising from the honoring of a check, draft
or similar instrument of such Person drawn against
insufficient funds, provided that such Indebtedness is
extinguished within five Business Days of its
incurrence;
(xi) (A) Indebtedness of the Company or any
Restricted Subsidiary consisting of Capitalized Lease
Obligations, Purchase Money Obligations or Capital
Expenditure Indebtedness (including refinancings
thereof), in an aggregate principal amount outstanding
at any time for all such Indebtedness not exceeding 5%
of Consolidated Assets, and (B) other Capital
Expenditure Indebtedness of any Non-U.S. Restricted
Subsidiary so long as at the time of Incurrence thereof
and after giving effect thereto on a pro forma basis,
(x) no Default or Event of Default will have occurred
and be continuing or would result therefrom and (y) the
Company could Incur $1.00 of additional Indebtedness
pursuant to paragraph (a) above; provided that any
Indebtedness described in this clause (xi) Incurred by
a Restricted Subsidiary (other than a Note Guarantor)
shall be Incurred only in a transaction exempt from
registration requirements under United States
securities laws, and not pursuant to a public offering
in the United States of America, and shall not be so
registered for resale in a public offering in the
United States of America;
(xii) Indebtedness of the Company or any
Restricted Subsidiary that is a Note Guarantor (other
than Indebtedness permitted to be Incurred pursuant to
paragraph (a) above or any other clause of this
paragraph (b)) not to exceed $10,000,000 in aggregate
51
principal amount outstanding at any given time for all
such Indebtedness;
(xiii) Indebtedness of any Non-U.S. Restricted
Subsidiary (other than Indebtedness permitted to be
Incurred pursuant to any other clause of this paragraph
(b)) not to exceed $25,000,000 in aggregate principal
amount outstanding at any given time for all such
Indebtedness;
(xiv) Indebtedness of the Company or any
Restricted Subsidiary consisting of guarantees,
indemnities or obligations in respect of purchase price
adjustments, in connection with the disposition of
assets permitted under this Indenture, in a principal
amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in
connection with such disposition;
(xv) (1) Guarantees of the Company or any
Restricted Subsidiary of Specified Senior Indebtedness
that is otherwise permitted to be Incurred in
accordance with this covenant, (2) Permitted Guarantees
and (3) Guarantees of the Company or any Restricted
Subsidiary (x) of Specified Indebtedness that is
otherwise permitted to be Incurred in accordance with
this covenant and (y) that are permitted to be Incurred
in accordance with Section 4.12;
(xvi) Indebtedness of the Company or any
Restricted Subsidiary (A) with respect to any Specified
Senior Indebtedness that is otherwise permitted to be
Incurred in accordance with this covenant, to the
extent arising by reason of any Lien granted by such
Person to secure such Specified Senior Indebtedness,
(B) with respect to any Pari Passu Indebtedness that is
otherwise permitted to be Incurred in accordance with
this covenant, to the extent arising by reason of any
Permitted Lien granted by such Person to secure such
Pari Passu Indebtedness, or (C) with respect to any
Specified Indebtedness that is otherwise permitted to
be Incurred in accordance with this covenant, to the
extent arising by reason of any Lien granted by such
Person to secure such Specified Indebtedness in
accordance with Section 4.11;
(xvii) Indebtedness of any Non-U.S. Restricted
Subsidiary to the extent that the amount of such
Indebtedness would be permitted as revolving credit
52
borrowing under the Credit Agreement, provided that the
aggregate amount of such Indebtedness shall reduce the
amount of revolving credit borrowings permitted to be
Incurred under the Credit Agreement for purposes of
clause (i)(y) of this paragraph (b); and
(xviii) Any renewals, extensions, substitutions,
refinancings or replacements (each, for purposes of
this clause (xviii), a "refinancing") of any
Indebtedness described in paragraph (a) or clause (ii),
(iii), (v), (vi), (vii) or (xi)(B) of this paragraph
(b), including any successive refinancings, so long as
(A) any such new Indebtedness shall be in principal
amount that does not exceed the principal amount (or,
if such Indebtedness being refinanced provides for an
amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof,
such lesser amount as of the date of determination) so
refinanced plus the lesser of (I) the stated amount of
any premium or other payment required to be paid in
connection with such a refinancing pursuant to the
terms of the Indebtedness being refinanced and (II) the
amount of premium or other payment actually paid at
such time to refinance the Indebtedness, plus, in
either case, the amount of expenses of the Company or a
Restricted Subsidiary incurred in connection with such
refinancing; (B) in the case of any refinancing of Pari
Passu Indebtedness or Subordinated Indebtedness, such
new Indebtedness is made pari passu with or subordinate
in right of payment to the Notes and the Note
Guarantees, as applicable, at least to the same extent
as the Indebtedness being refinanced; (C) such new
Indebtedness has an Average Life equal to or longer
than the Average Life of the Indebtedness being
refinanced and a final Stated Maturity the same as or
later than the final Stated Maturity of the
Indebtedness being refinanced; and (D) in the case of
any refinancing of Indebtedness described in clause
(v), (vi) or (xi)(B) of this paragraph (b), such new
Indebtedness shall be Incurred (other than by a Note
Guarantor) only in a transaction exempt from
registration requirements under United States
securities laws, and not pursuant to a public offering
in the United States of America, and shall not be so
registered for resale in a public offering in the
United States of America, provided, that this clause
(D) shall not apply in respect of clause (vi) to the
extent that the Acquired Indebtedness being refinanced
was Incurred in such a registered transaction or public
53
offering so long as the obligor in respect of such
Indebtedness does not change as a result of such
refinancing.
(c) For purposes of determining compliance with,
and the outstanding principal amount of any particular
Indebtedness Incurred pursuant to and in compliance with,
this covenant, (i) Indebtedness Incurred pursuant to the
Credit Agreement on the Issue Date shall be treated as
Incurred pursuant to clause (i) of the foregoing paragraph
(b), (ii) any other obligation of the obligor on such
Indebtedness arising under any Guarantee, Lien or letter of
credit supporting such Indebtedness shall be disregarded to
the extent that such Guarantee, Lien or letter of credit
secures the principal amount of such Indebtedness; (iii) in
the event that Indebtedness meets the criteria of more than
one of the types of Indebtedness described in paragraph (b),
subject to clause (i) of this paragraph (c), the Company, in
its sole discretion, shall classify such item of
Indebtedness and only be required to include the amount and
type of such Indebtedness in one of such clauses; and (iv)
the amount of Indebtedness issued at a price that is less
than the principal amount thereof shall be equal to the
amount of the liability in respect thereof determined in
accordance with GAAP.
(d) For purposes of determining compliance with
any Dollar-denominated restriction on the Incurrence of
Non-Dollar Indebtedness under clause (ix)(B)(y), (xi)(A),
(xii) or (xiii) of the foregoing paragraph (b), the Dollar-
equivalent principal amount of such Indebtedness Incurred
pursuant thereto shall be calculated based on the relevant
currency exchange rate in effect on the date that such
Indebtedness was Incurred, in the case of term debt, or
first committed, in the case of revolving credit debt,
provided that (x) the Dollar-equivalent principal amount of
any such Indebtedness outstanding on the Issue Date shall be
calculated based on the relevant currency exchange rate in
effect on the Issue Date and (y) if such Indebtedness is
Incurred to refinance Non-Dollar Indebtedness previously
Incurred pursuant to clause (ix)(B)(y), (xi)(A), (xii) or
(xiii) of the foregoing paragraph (b), and such refinancing
would cause the Dollar-denominated restriction under such
respective clause to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of
such refinancing, such Dollar-denominated restriction shall
be deemed not to have been exceeded so long as the principal
amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced, but
54
the ability to make subsequent Incurrences of Indebtedness
subject to the Dollar-denominated restriction under such
respective clause shall be determined as if the relevant
currency exchange rate applied to any such previous
refinancing was the rate in effect on the date of such
refinancing. The principal amount of any such refinancing
Indebtedness, if Incurred in a different currency from the
Indebtedness being refinanced, shall be calculated based on
the currency exchange rate applicable to the currencies in
which such respective Indebtedness is denominated that is in
effect on the date of such refinancing.
Section 4.09. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly,:
(i) declare or pay any dividend or make any other
distribution or payment on or in respect of Capital
Stock of the Company (including any payment in
connection with any merger or consolidation involving
the Company or any Restricted Subsidiary), or any other
payment to the direct or indirect holders of Capital
Stock of the Company in their capacity as such, except
dividends or distributions payable solely in Capital
Stock of the Company (other than Redeemable Capital
Stock);
(ii) declare or pay any dividend or make any
other distribution or payment on or in respect of
Capital Stock of any Restricted Subsidiary (including
any payment in connection with any merger or
consolidation involving the Company or any Restricted
Subsidiary), or any other payment to the direct or
indirect holders of Capital Stock of any Restricted
Subsidiary in their capacity as such, except dividends
or distributions payable (x) on a pro rata basis to all
such holders of such Capital Stock, whether in Capital
Stock of such Restricted Subsidiary or otherwise, or
(y) to the Company or any Restricted Subsidiary;
(iii) purchase, redeem, defease or otherwise
acquire or retire for value any Capital Stock of the
Company or any Restricted Subsidiary held by Persons
other than the Company or a Restricted Subsidiary,
except from all holders of such Capital Stock of a
Restricted Subsidiary on a pro rata basis;
(iv) make any principal payment on, or purchase,
defease, repurchase, redeem or otherwise acquire or
55
retire for value, prior to any scheduled maturity,
scheduled repayment, scheduled sinking fund payment or
other Stated Maturity, any Subordinated Indebtedness of
the Company or any Note Guarantor (other than in
anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case
due within one year of the date of such acquisition or
retirement); or
(v) make any Investment (other than any Permitted
Investment) in any Person (any such dividend,
distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment
being herein referred to as a "Restricted Payment") if
at the time of and after giving effect to such
Restricted Payment on a pro forma basis, (1) a Default
or Event of Default shall have occurred and be
continuing or would result therefrom; (2) the Company
could not Incur at least $1.00 of additional
Indebtedness under Section 4.08(a); or (3) the
aggregate amount of such Restricted Payment and all
other Restricted Payments declared or made from and
after the Issue Date would exceed, without duplication,
the sum of:
(A) 50% of the Consolidated Net Income
accrued during the period (treated as one accounting
period) from October 1, 1996 to the end of the most
recent fiscal quarter ending prior to the date of such
Restricted Payment for which consolidated financial
statements of the Company are available (or, if such
Consolidated Net Income for such period will be a
deficit, minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received
by the Company either (x) as capital contributions in
the form of common equity to the Company after the
Issue Date or (y) from the issuance or sale of Capital
Stock (other than Redeemable Capital Stock) of the
Company after the Issue Date, other than to a
Subsidiary of the Company;
(C) the amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from
(i) payments of dividends, repayments of the principal
of loans or advances or other transfers of assets to
the Company or any Restricted Subsidiary from any
Unrestricted Subsidiary or (ii) the redesignation of
Unrestricted Subsidiaries as Restricted Subsidiaries
56
(valued in each case as provided in the definition of
"Investment"), not to exceed in the case of any such
Unrestricted Subsidiary the aggregate amount of
Investments (other than Permitted Investments) made by
the Company or any Restricted Subsidiary in such
Unrestricted Subsidiary after the Issue Date;
(D) in the case of disposition or repayment
of any Investment constituting a Restricted Payment
made after the Issue Date, an amount equal to the
lesser of the return of capital with respect to such
Investment and the initial amount of such Investment,
in either case, less the cost of the disposition of
such Investment; and
(E) the aggregate net cash proceeds received
after the Issue Date by the Company or any Restricted
Subsidiary from the issuance or sale (other than to any
Restricted Subsidiary) of debt securities or Redeemable
Capital Stock that have been converted into or
exchanged for Capital Stock of the Company (other than
Redeemable Capital Stock) to the extent such debt
securities or Redeemable Capital Stock were originally
sold for cash, together with the aggregate net cash
proceeds received by the Company or any Restricted
Subsidiary from such conversion or exchange at the time
thereof.
(b) The provisions of the foregoing paragraph (a)
shall not prohibit:
(i) the payment of any dividend within 60 days
after the date of its declaration, if at the date of
declaration such payment would be permitted by the
foregoing paragraph (a), provided, however, that such
dividend will be included in the calculation of the
amount of Restricted Payments;
(ii) the redemption, repurchase or other
acquisition or retirement of any shares of any class of
Capital Stock of the Company or any Restricted
Subsidiary in exchange for (including any such exchange
pursuant to the exercise of a conversion right or
privilege in connection with which cash is paid in lieu
of the issuance of fractional shares), or out of the
Net Cash Proceeds received by the Company of, a
substantially concurrent issue and sale of other shares
of Capital Stock (other than Redeemable Capital Stock,
in the case of any such redemption, repurchase or other
57
acquisition or retirement of Capital Stock that is not
Redeemable Capital Stock) of MT Investors, Holding or
the Company to any Person (other than to a Subsidiary
of the Company), provided that (x) such Net Cash
Proceeds will be excluded from clause (3) of the
foregoing paragraph (a) and (y) such redemption,
repurchase or other acquisition or retirement will be
excluded in the calculation of the amount of Restricted
Payments;
(iii) any redemption, repurchase or other
acquisition or retirement of Subordinated Indebtedness
of the Company or any Note Guarantor in exchange for,
or out of the Net Cash Proceeds received by the Company
of, a substantially concurrent issue and sale of
(x) Capital Stock (other than Redeemable Capital Stock)
of MT Investors, Holding or the Company to any Person
(other than to a Subsidiary of the Company), provided
that such Net Cash Proceeds will be excluded from
clause (3) of the foregoing paragraph (a), or (y)
Indebtedness of the Company or any Note Guarantor so
long as such Indebtedness complies with subclauses (B)
and (C) of Section 4.08(b)(xviii); provided, however,
that such redemption, repurchase or other acquisition
or retirement will be excluded in the calculation of
the amount of Restricted Payments;
(iv) (A) loans, advances, dividends or
distributions by the Company to Holding or MT Investors
(x) not to exceed $1,000,000 in any fiscal year to
permit Holding or MT Investors to pay the operational
expenses (including professional fees and expenses)
incurred by Holding or MT Investors in the ordinary
course of business to the extent related to Holding's
investment in the Company or MT Investors' investment
in Holding, respectively, or (y) not to exceed an
amount necessary to permit Holding or MT Investors to
pay its expenses incurred in connection with any public
offering of equity securities or of Indebtedness
permitted by this Indenture that has been terminated by
the board of directors of the Company, Holding or MT
Investors, as applicable, in each case, the net
proceeds of which were specifically intended to be
contributed or loaned to the Company, and (B) loans or
advances by the Company to Holding or MT Investors not
to exceed an amount necessary to permit each of Holding
and MT Investors to pay its interim expenses incurred
in connection with any public offering of equity
securities or Indebtedness permitted by this Indenture,
58
the net proceeds of which are specifically intended to
be contributed or loaned to the Company, which loans or
advances, unless such offering shall have been
terminated by the board of directors of the Company,
Holding or MT Investors, as applicable, shall be repaid
to the Company promptly out of the proceeds of such
offering; provided, however, that such amounts will be
excluded in the calculation of the amount of Restricted
Payments;
(v) loans, advances, dividends or distributions
by the Company to Holding or MT Investors to permit
Holding or MT Investors, as the case may be, to
repurchase or otherwise acquire its common stock or
options or other rights in respect thereof, or payments
by the Company to repurchase or otherwise acquire such
common stock or options or other rights in respect
thereof, in connection with the repurchase provisions
under employee stock option agreements or employee
stock purchase agreements, such payments, loans,
advances, dividends or distributions not to exceed
$2,000,000 in any fiscal year and $5,000,000 in the
aggregate; provided, however, that such amounts will be
included in the calculation of the amount of Restricted
Payments;
(vi) loans or advances to officers or employees
of MT Investors, Holding, the Company or any Restricted
Subsidiary in the ordinary course of business not to
exceed $2,000,000 in the aggregate outstanding at any
time, provided, however, that such amounts will be
excluded in the calculation of the amount of Restricted
Payments;
(vii) payments pursuant to the Tax Sharing
Agreement, provided, however, that such payments will
be excluded in the calculation of the amount of
Restricted Payments;
(viii) payments by the Company to Holding or MT
Investors not to exceed an amount necessary to permit
Holding or MT Investors to make payments in respect of
its indemnification obligations owing to its directors
or officers under Holding's or MT Investors' charter,
by-laws or indemnification agreements, to the extent
such payments relate to the Company or any of its
Restricted Subsidiaries or to Holding's or MT
Investors's investment therein, provided, however, that
59
such payments will be excluded in the calculation of
the amount of Restricted Payments;
(ix) the payment by the Company of, or loans,
advances, dividends or distributions by the Company to
Holding or MT Investors to pay, dividends on the common
stock of the Company, Holding or MT Investors, as
applicable, following an initial public offering of
such common stock, in an amount not to exceed in any
fiscal year 6% of the net proceeds received by the
Company, in or from such public offering; provided,
however, that such payments, loans, advances, dividends
or distributions will be included in the calculation of
the amount of Restricted Payments;
(x) payments by the Company, or payments by the
Company to Holding or MT Investors to enable Holding or
MT Investors, as applicable, to make payments, to
holders of the common stock of the Company, Holding or
MT Investors, as applicable, in lieu of issuance of
fractional shares of such common stock, in connection
with any recapitalization of the Company, Holding or MT
Investors, as applicable, such payments not to exceed
$100,000 in the aggregate; provided, however, that such
payments will be included in the calculation of the
amount of Restricted Payments; or
(xi) any purchase or repayment of Subordinated
Indebtedness upon a Change of Control or an Asset Sale
to the extent required by the agreement governing such
Subordinated Indebtedness but only if (x) in the case
of a Change of Control, the Company shall have complied
with all of its obligations under Section 4.19 and
purchased all Notes tendered pursuant to the offer to
repurchase all the Notes required thereby prior to
purchasing or repaying such Subordinated Indebtedness
or (y) in the case of an Asset Sale, the Company shall
have applied the Net Cash Proceeds from such Asset Sale
in accordance with Section 4.18, shall have made an
Excess Proceeds Offer pursuant to such covenant, and
shall have purchased all Notes tendered pursuant to
such Excess Proceeds Offer prior to purchasing or
repaying such Subordinated Indebtedness, provided that
(1) in either case the purchase price (stated as a
percentage of principal amount or issue price plus
accrued original issue discount, if less) of such
Subordinated Indebtedness shall not be greater than the
price (stated as a percentage of principal amount) of
the Notes pursuant to any such offer to repurchase the
60
Notes in the event of a Change of Control or Excess
Proceeds Offer, respectively, (2) in the case of such
Asset Sale, the aggregate principal amount of such
Subordinated Indebtedness that the Company may so
purchase or repay may not exceed the amount of the
Excess Proceeds, if any, available for such Excess
Proceeds Offer and remaining after the Company shall
have purchased all Notes tendered pursuant to such
Excess Proceeds Offer, and (3) in either case, any such
purchase or repayment will be included in the
calculation of the amount of Restricted Payments.
Section 4.10. Limitation on Transactions with
Affiliates. (a) The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly,
conduct any business, enter into or suffer to exist any
transaction or series of related transactions (including the
purchase, sale, conveyance, disposition, lease or exchange
of any property, the rendering of any service or the making
of any loan or advance) with, or for the benefit of, any
Affiliate of the Company (an "Affiliate Transaction") unless
(i) such Affiliate Transaction is on terms no less favorable
to the Company or such Restricted Subsidiary than those that
could be obtained at the time of such Affiliate Transaction
in a comparable arm's length transaction with a Person who
is not an Affiliate of the Company, and (ii) in the event
such an Affiliate Transaction involves aggregate payments or
value of $5,000,000 or greater, (x) a majority of the Board
of Directors of the Company, including a majority of the
Disinterested Directors, have determined in good faith that
the criteria set forth in clause (i) are satisfied and have
approved the relevant Affiliate Transaction, such approval
to be evidenced by a Board Resolution, or (y) in the event
there are no Disinterested Directors, the Company has
obtained a written opinion of an investment banking firm or
an independent appraiser or accounting firm, in either case
that is nationally recognized in the United States of
America, stating that the terms of such Affiliate
Transaction are fair to the Company and its Restricted
Subsidiaries from a financial point of view (a "Fairness
Opinion"), and (iii) in the event that such Affiliate
Transaction involves aggregate payments or value of
$15,000,000 or greater, the Company has obtained a Fairness
Opinion with respect to such Affiliate Transaction and (iv)
in the event that such Affiliate Transaction involves
aggregate payments or value of $5,000,000 or greater, the
Company has delivered to the Trustee an Officers'
Certificate certifying that such Affiliate Transaction
complies with the foregoing clause (i), and that, if
61
required by the foregoing clause (ii) or (iii), such
Affiliate Transaction has been approved by the Board of
Directors (including a majority of the Disinterested
Directors) or the Company has obtained a Fairness Opinion
with respect thereto, together with copies of the relevant
Board Resolution or Fairness Opinion.
(b) The foregoing paragraph (a) will not apply
to: (i) any transaction permitted as a Restricted Payment
pursuant to Section 4.09, (ii) the payment of reasonable and
customary regular fees to directors of the Company and its
Restricted Subsidiaries who are not employees of the Company
or its Subsidiaries, (iii) any transaction between the
Company and a Restricted Subsidiary or between Restricted
Subsidiaries, (iv) any transaction with an officer or member
of the board of directors of the Company or any Restricted
Subsidiary in the ordinary course of business involving
compensation, indemnity or employee benefit arrangements;
(v) loans or advances to officers of the Company or any
Restricted Subsidiary in the ordinary course of business not
exceeding $2,000,000 in the aggregate outstanding at any
time; (vi) payments pursuant to the Tax Sharing Agreement;
(vii) any agreement as in existence on the Issue Date, as
the same may be amended from time to time in any manner not
adverse to the Holders; and (viii) payment to AEA of fees in
an aggregate amount not to exceed $1,000,000 in any fiscal
year and the reimbursement of reasonable out-of-pocket
expenses incurred by AEA, in each case in connection with
its performance of services pursuant to the Management
Services Agreement; (ix) the Acquisition and all
transactions related thereto (including but not limited to
the financing thereof); and (x) any transaction in the
ordinary course of business or approved by a majority of the
Disinterested Directors, between the Company or any
Restricted Subsidiary and any Affiliate of the Company
controlled by the Company that is a joint venture or similar
entity primarily engaged in a Related Business.
Section 4.11. Limitation on Certain Liens.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create,
incur, assume or suffer to exist any Lien (other than any
Permitted Lien) on or with respect to any of its property or
assets (including any Capital Stock), whether held on the
Issue Date or thereafter acquired, or any income, profits or
proceeds therefrom, securing any Specified Indebtedness,
unless (x) effective provision is made contemporaneously
therewith to secure the Notes and the Note Guarantees, as
applicable, (i) in the case of a Lien securing Subordinated
62
Indebtedness, by a perfected Lien on such property, assets,
income, profits or proceeds that is senior in priority to
such Lien securing such Indebtedness, or (ii) in the case of
a Lien securing any other Specified Indebtedness, equally
and ratably with (or prior to) such Lien securing such
Indebtedness and (y) any such Restricted Subsidiary is a
Note Guarantor.
(b) Notwithstanding the foregoing, any Lien
created for the benefit of the Notes and the Note
Guarantees, as applicable, pursuant to the foregoing
paragraph (a) shall provide by its terms that such Lien
shall be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer to any
Person not an Affiliate of the Company of all of the Capital
Stock held by the Company or any Restricted Subsidiary in,
or all or substantially all the assets of, any Restricted
Subsidiary creating such Lien (which sale, exchange or
transfer is not prohibited by this Indenture) or (ii) the
release and discharge of such Lien, which release and
discharge occurs at a time when (A) no other Specified
Indebtedness remains secured by such property or assets of
the Company or such Restricted Subsidiary, as the case may
be, or (B) the holders of all such other Specified
Indebtedness that is secured by such property or assets of
the Company or such Restricted Subsidiary also release their
security interest in such property or assets.
Section 4.12. Limitation on Certain Guarantees.
(a) The Company will not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee any Specified
Indebtedness (other than any Permitted Guarantee) unless
such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture
providing for a Note Guarantee by such Restricted Subsidiary
on substantially the same terms as set forth in Article Ten
of this Indenture with respect to the Note Guarantee of
Holding, provided that if such Specified Indebtedness is
Subordinated Indebtedness, such Restricted Subsidiary's
Guarantee with respect to such Specified Indebtedness shall
be subordinated in right of payment to such Restricted
Subsidiary's Note Guarantee substantially to the same extent
as such Specified Indebtedness is subordinated to the Notes
or any Note Guarantee, as the case may be, or (if not so
subordinated) to any other Indebtedness of such Restricted
Subsidiary.
(b) Notwithstanding the foregoing, any Note
Guarantee by a Restricted Subsidiary of the Notes shall
63
provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale,
exchange or transfer to any Person not an Affiliate of the
Company of all of the Capital Stock held by the Company or
any Restricted Subsidiary in, or all or substantially all
the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or
(ii) the release and discharge of the Guarantee that
resulted in the creation of such Note Guarantee, except a
discharge or release by or as a result of payment under such
Guarantee, which release and discharge occurs at a time when
(A) no other Specified Indebtedness remains Guaranteed by
such Restricted Subsidiary (other than pursuant to Permitted
Guarantees) or (B) the holders of all such other
Indebtedness that is Guaranteed by such Restricted
Subsidiary (other than pursuant to Permitted Guarantees)
also release their Guarantee by such Restricted Subsidiary,
except a release as a result of payment pursuant to such
Guarantee by such Restricted Subsidiary.
Section 4.13. Certain Future Note Guarantors.
(a) The Company shall cause (x) certain U.S. Restricted
Subsidiaries, as provided in Section 4.17, and (y) each U.S.
Restricted Subsidiary that Incurs Indebtedness (other than
Specified U.S. Subsidiary Indebtedness), to execute and
deliver to the Trustee a supplemental indenture pursuant to
which such Subsidiary shall Guarantee payment of the Notes
on substantially the same terms as set forth in Article Ten
of this Indenture with respect to the Note Guarantee of
Holding. The Company also shall have the right to cause any
Restricted Subsidiary to execute and deliver to the Trustee
a supplemental indenture pursuant to which such Restricted
Subsidiary will Guarantee payment of the Notes as aforesaid.
Each Note Guarantee shall be limited to an amount not to
exceed the maximum amount that can be Guaranteed by that
Subsidiary without rendering the Note Guarantee, as it
relates to such Subsidiary, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
For purposes of clause (x) of this paragraph (a), the
Company shall have the right to designate the U.S.
Restricted Subsidiary or U.S. Restricted Subsidiaries that
constitute a U.S. Significant Subsidiary or U.S. Significant
Subsidiaries, as the case may be, required to provide a Note
Guarantee or Note Guarantees thereunder, provided that,
after giving effect to such Note Guarantee or Note
Guarantees, there shall not be in existence any U.S.
Restricted Subsidiary that is a U.S. Significant Subsidiary.
64
(b) Notwithstanding the foregoing, any Note
Guarantee by a Restricted Subsidiary shall provide by its
terms that it shall be automatically and unconditionally
released and discharged upon (i) any sale, exchange or
transfer to any Person not an Affiliate of the Company of
all of the Capital Stock held by the Company in, or all or
substantially all the assets of, such Restricted Subsidiary
(which sale, exchange or transfer is not prohibited by this
Indenture) or (ii) in the case of any such Guarantee given
by reason of clause (y) of the first sentence of the
foregoing paragraph (a), the repayment in full of the
Indebtedness that caused such Restricted Subsidiary to
provide such Note Guarantee, which repayment occurs at a
time when such Restricted Subsidiary has no obligation in
respect of any other Indebtedness (other than Specified U.S.
Subsidiary Indebtedness) and would not otherwise be required
to Guarantee the Notes under any provision of this
Indenture.
Section 4.14. Limitation on Other Senior Sub-
ordinated Indebtedness. The Company shall not, and shall
not permit any Restricted Subsidiary that is a Note
Guarantor to, directly or indirectly, Incur any Indebtedness
that is subordinate or junior in right of payment in any
respect to any other Indebtedness, unless such Indebtedness
is expressly subordinate in right of payment to, or ranks
pari passu with, the Notes, in the case of the Company, or
the Note Guarantees, in the case of a Note Guarantor;
provided that the foregoing restriction shall not apply to
distinctions between categories of Senior Indebtedness or
Guarantor Senior Indebtedness that exist solely by reason of
Liens or Guarantees arising or created in respect of some
but not all such Senior Indebtedness or Guarantor Senior
Indebtedness, as the case may be.
Section 4.15. Limitation on the Sale or Issuance
of Preferred Stock of Restricted Subsidiaries. The Company
shall not sell, and shall not permit any Restricted
Subsidiary to, directly or indirectly, issue or sell, any
shares of Preferred Stock of any Restricted Subsidiary
except (i) to the Company or a Restricted Subsidiary, or to
directors as director's qualifying shares to the extent
required by applicable law, or (ii) if, immediately after
giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted
Subsidiary. The proceeds of any sale of such Preferred
Stock permitted by the preceding clause (ii) will be treated
as Net Cash Proceeds from an Asset Sale and must be applied
in accordance with the terms of Section 4.18.
65
Section 4.16. Limitation on Dividend and Other
Payment Restrictions Affecting Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create,
incur, assume or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (i) pay, directly or
indirectly, dividends, in cash or otherwise, or make any
other distribution on or in respect of its Capital Stock or
any other interest or participation in, or measured by, its
profits, (ii) pay any Indebtedness owed to the Company or
any other Restricted Subsidiary, (iii) make loans or
advances to the Company or any other Restricted Subsidiary,
(iv) transfer any of its properties or assets to the Company
or any other Restricted Subsidiary (other than any customary
restriction on transfers of property subject to a Lien
permitted under this Indenture that would not adversely
affect the Company's ability to satisfy its obligations
hereunder) or (v) Guarantee any Indebtedness of the Company
or any other Restricted Subsidiary, except for such
encumbrances or restrictions existing under or by reason of
(a) applicable law, (b) customary non-assignment provisions
of any lease, license or other contract, (c) any agreement
or other instrument of a Person acquired by the Company or
any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof),
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so
acquired, (d) any existing agreement as in effect on the
Issue Date (to the extent of any encumbrances or
restrictions in existence thereunder on the Issue Date),
including the Credit Agreement as in effect on the Issue
Date, (e) any encumbrance or restriction with respect to a
Non-U.S. Restricted Subsidiary pursuant to an agreement
relating to Indebtedness of such Non-U.S. Restricted
Subsidiary permitted to be Incurred pursuant to clause (v),
(vi), (vii), (viii), (ix), (xi), (xii) or (xiii) of
Section 4.08(b), (f) arising or agreed to in the ordinary
course of business and that do not, individually or in the
aggregate, detract from the value of property or assets of
the Company or any Restricted Subsidiary, in each case in
any manner material to the Company or such Restricted
Subsidiary, (g) any restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement entered into for
the sale or disposition of all or substantially all the
Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition, (h) any
restriction contained in security agreement or mortgage
66
securing Indebtedness of any Restricted Subsidiary to the
extent such restriction restricts the transfer of the
property subject to such security agreement or mortgage,
(i) subordination provisions contained in any intercompany
note representing Indebtedness of the Company owing to and
held by any Restricted Subsidiary or Indebtedness of a Note
Guarantor owing to and held by the Company or any Restricted
Subsidiary, as contemplated by Section 4.08(b)(iv)(y), and
(j) any agreement that extends, refinances, renews or
replaces any agreement or other instrument described in
clause (c), (d) or (e) of this Section 4.16(a), which is not
more restrictive or less favorable to the Noteholders than
those existing under the agreement being extended,
refinanced, renewed or replaced.
(b) Without limiting the foregoing, the Company
shall not permit Swiss Subholding to, directly or
indirectly, create, incur, assume or otherwise cause or
suffer to exist or become effective any encumbrance or
restriction on the ability of Swiss Subholding to pay
dividends or make distributions, loans, advances or other
payments to the Company to enable the Company to pay
principal of the Notes at their final scheduled maturity (as
in effect on the Issue Date) and scheduled interest on the
Notes, pursuant to the terms of the Credit Agreement or any
other agreement or instrument, except for such encumbrances
or restrictions permitted pursuant to clause (a), (c), (g),
(i) or (j) of the foregoing paragraph (a) (it being
understood that the Credit Agreement will be permitted to
prohibit any redemption, repayment or acquisition of the
Notes prior to final scheduled maturity).
Section 4.17. Restriction on Transfer of Assets
to Subsidiaries. The Company shall not, and shall not
permit any Restricted Subsidiary that is a Note Guarantor
to, sell, convey, transfer or otherwise dispose of its
assets or property to any U.S. Restricted Subsidiary, except
for any disposition (a) made in the ordinary course of
business (including intercompany loans and cash equity
contributions), (b) that, after giving effect thereto, does
not cause the existence of a U.S. Significant Subsidiary or
(c) made to such U.S. Restricted Subsidiary if such U.S.
Restricted Subsidiary prior to or simultaneously with such
disposition executes and delivers a supplemental indenture
to this Indenture providing for a Note Guarantee by such
Restricted Subsidiary on substantially the same terms as set
forth in Article Ten of this Indenture with respect to the
Note Guarantee of Holding, which Note Guarantee shall be
subordinated to any Guarantee of such Restricted Subsidiary
67
of Senior Indebtedness of the Company and shall be
subordinated to any other Indebtedness of such Restricted
Subsidiary (that is not subordinated or junior in right of
payment to any other Indebtedness of such Restricted
Subsidiary), in each case to the same extent as the Notes
are subordinated to the Senior Indebtedness of the Company
under this Indenture.
Section 4.18. Limitation on Disposition of
Proceeds of Asset Sales. (a) The Company shall not, and
shall not permit any Restricted Subsidiary to, engage in any
Asset Sale unless (i) such Asset Sale is for not less than
the Fair Market Value of the assets sold (as determined, to
the extent such Asset Sale involves a Fair Market Value
greater than $5,000,000, in good faith by the Board of
Directors whose determination shall be conclusive and
evidenced by a Board Resolution) and (ii) at least 75% of
the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or Cash
Equivalents (with Indebtedness of the Company or any
Restricted Subsidiary being counted as cash for such purpose
if the Company and each Restricted Subsidiary, as the case
may be, is unconditionally released from liability
therefor). Net Cash Proceeds of any Asset Sale may be
applied to repay Specified Senior Indebtedness (but only if
the related loan commitments (if any) or amounts available
to be reborrowed (if any) under such Specified Senior
Indebtedness are permanently reduced by the amount of such
payment). To the extent that such Net Cash Proceeds are not
applied as provided in the preceding sentence, the Company
or a Restricted Subsidiary, as the case may be, may apply
the Net Cash Proceeds from such Asset Sale, within 360 days
of such Asset Sale, to an investment in properties and
assets to replace the properties and assets that were the
subject of such Asset Sale or in properties and assets that
will be used in the businesses of the Company or its
Restricted Subsidiaries, as the case may be, existing on the
Issue Date or in businesses reasonably related thereto. Any
Net Cash Proceeds from any Asset Sale not applied as
provided in the preceding two sentences, within 360 days of
such Asset Sale, constitute "Excess Proceeds" subject to
disposition as provided below.
(b) When the aggregate amount of Excess Proceeds
exceeds $15,000,000, the Company shall make an offer to
purchase (an "Excess Proceeds Offer") from all Noteholders
and, to the extent required by the terms thereof, from the
holders of Pari Passu Indebtedness of the Company, an
aggregate principal amount of Notes and any such Pari Passu
68
Indebtedness equal to such Excess Proceeds, at a purchase
price (the "Excess Proceeds Offer Price") in cash equal to
100% of the outstanding principal amount thereof (or
accreted value, as applicable), plus accrued and unpaid
interest, if any, to the purchase date in respect of the
Excess Proceeds Offer in accordance with the procedures set
forth in this Section 4.18 or the agreements governing any
such Pari Passu Indebtedness. To the extent that the
aggregate principal amount of Notes and any such Pari Passu
Indebtedness tendered pursuant to an Excess Proceeds Offer
is less than the Excess Proceeds, the Company may use such
deficiency for general corporate purposes. If the aggregate
principal amount of Notes and any such Pari Passu Indebted-
ness validly tendered and not withdrawn exceeds the Excess
Proceeds, the portion of the Excess Proceeds (x) payable in
respect of the Notes shall be an amount (the "Note Amount")
equal to the Excess Proceeds multiplied by a fraction, the
numerator of which is the outstanding principal amount of
the Notes, and the denominator of which is the sum of the
outstanding principal amount of the Notes and the outstand-
ing principal amount (or accreted value, as applicable) of
any such Pari Passu Indebtedness (less the amount, if any,
by which such product exceeds the principal amount of Notes
validly tendered and not withdrawn) and (y) payable in
respect of any such Pari Passu Indebtedness shall be an
amount equal to the excess of the Excess Proceeds over the
Note Amount. Upon completion of such Excess Proceeds Offer,
the amount of Excess Proceeds shall be reset to zero.
(c) (1) Within 15 Business Days after the Company
becomes obligated to make an Excess Proceeds Offer, the
Company shall deliver to the Trustee and send, by first-
class mail to each Holder, a written notice stating that the
Holder may elect to have his Notes purchased by the Company
either in whole or in part (subject to prorating as
hereinafter described in the event the Excess Proceeds Offer
is oversubscribed) in integral multiples of $1,000 of
principal amount, at the applicable purchase price. The
notice shall specify a purchase date not less than 30 days
nor more than 60 days after the date of such notice, or such
later date as may be necessary for the Company to comply
with the requirements under the Exchange Act (an "Excess
Proceeds Purchase Date"), and shall contain such information
concerning the business of the Company which the Company in
good faith believes will enable such Holders to make an
informed decision (which at a minimum shall include (i) the
most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company,
the most recent subsequently filed Quarterly Report on Form
69
10-Q and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current
Reports describing Asset Sales otherwise described in the
offering materials (or corresponding successor reports),
(ii) a description of material developments in the Company's
business subsequent to the date of the latest of such
reports, and (iii) if material, appropriate pro forma
financial information and all instructions and materials
necessary to tender Notes pursuant to the Excess Proceeds
Offer, together with the information contained in clause
(3).
(2) Not later than the date upon which written
notice of an Excess Proceeds Offer is delivered to the
Trustee as provided below, the Company shall deliver to the
Trustee an Officers' Certificate as to (i) the amount of the
aggregate Excess Proceeds Offer Price for the Notes,
(ii) the allocation of the Net Cash Proceeds from the Asset
Sales pursuant to which such Excess Proceeds Offer is being
made and (iii) the compliance of such allocation with the
provisions of Section 4.18(a). On or prior to the Excess
Proceeds Purchase Date, the Company shall also irrevocably
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) in Cash Equivalents an amount equal to the
aggregate Excess Proceeds Offer Price for the Notes to be
held for payment in accordance with the provisions of this
Section 4.18. Upon the expiration of the period for which
the Excess Proceeds Offer remains open (the "Offer Period"),
the Company shall deliver to the Trustee for cancellation
the Notes or portions thereof which have been properly
tendered to and are to be accepted by the Company. The
Trustee shall, on the Excess Proceeds Purchase Date, mail or
deliver payment to each tendering Holder in the amount of
the purchase price. In the event that the aggregate
purchase price of the Notes delivered by the Company to the
Trustee is less than the aggregate Excess Proceeds Offer
Price for the Notes, the Trustee shall deliver the excess to
the Company immediately after the expiration of the Offer
Period for application in accordance with this Section 4.18.
(3) Holders electing to have a Note purchased
will be required to surrender the Note with an appropriate
form duly completed, to the Company at the address specified
in the notice at least three Business Days prior to the
Excess Proceeds Purchase Date. Holders will be entitled to
withdraw their election to have a Note purchased pursuant to
this Section 4.18 if the Trustee or the Company receives not
later than one Business Day prior to the Excess Proceeds
70
Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of the Note which was delivered for purchase by the
Holder, the certificate number of the Note in respect of
which such notice of withdrawal is being submitted and a
statement that such Holder is withdrawing his election to
have such Note purchased. If at the expiration of the Offer
Period the aggregate principal amount of Notes surrendered
by Holders exceeds the aggregate Excess Proceeds Offer Price
for the Notes, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof,
shall be purchased). Holders whose Notes are purchased only
in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the
Trustee which are to be accepted for purchase, the Company
shall also deliver an Officers' Certificate stating the such
Notes are to be accepted by the Company pursuant to and in
accordance with the terms of this Section 4.18. A Note
shall be deemed to have been accepted for purchase at the
time the Trustee, directly or through an agent, mails or
delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to this
covenant. To the extent that the provisions of any
securities laws or regulations conflict with provisions of
this covenant, the Company shall comply with the applicable
securities laws and regulations and will not be deemed to
have breached its obligations under this paragraph by virtue
thereof.
Section 4.19. Change of Control. (a) Upon the
occurrence of a Change of Control, each Noteholder shall
have the right to require the Company to repurchase all or
any part of such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest
payment date), in accordance with the terms contemplated in
this covenant.
71
(b) A "Change of Control" means the occurrence of
any of the following events:
(i) prior to an initial Public Equity Offering,
the Permitted Holder ceases to be the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of Voting Stock of each
of the Company and Holding representing more than 50%
of the total voting power of the Voting Stock of each
of the Company and Holding (as a result of the
acquisition or issuance of securities, by merger or
otherwise);
(ii) at any time after an initial Public Equity
Offering, any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act),
other than the Permitted Holder, is or becomes (as the
result of the acquisition or issuance of securities, by
merger or otherwise) the Beneficial Owner, directly or
indirectly, of (A) more than 50% of the common stock of
the Company or Holding or (B) more than 50% of the
total voting power of the Voting Stock of the Company
or Holding;
(iii) the merger or consolidation of the Company
or Holding with or into another Person, or of another
Person with or into the Company or Holding, or the
sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all the assets of
the Company or Holding to another Person, and, in the
case of any such merger or consolidation, the
securities of the Company or Holding, as the case may
be, that are outstanding immediately prior to such
transaction and that represent 100% of the aggregate
voting power of the Voting Stock of the Company or
Holding, as the case may be, are changed into or
exchanged for cash, securities or property, unless
(x) pursuant to such transaction such securities are
changed into or exchanged for (A) Voting Stock (other
than Redeemable Capital Stock) of the surviving or
transferee corporation or (B) cash, securities and
other property in an amount that could be paid by the
Company as a Restricted Payment under this Indenture,
and (y) immediately after giving effect to such
transaction, no "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act),
other than the Permitted Holder, is or becomes (as the
result of the acquisition or issuance of securities, by
merger or otherwise) the Beneficial Owner, directly or
72
indirectly, of more than 50% of the total voting power
of the Voting Stock of the surviving or transferee
corporation;
(iv) during any consecutive two-year period,
individuals who at the beginning of such period
constituted the Board of Directors of the Company or
Holding (together with any new directors whose election
by such Board of Directors or whose nomination for
election by the shareholders of the Company or Holding,
as the case may be, was approved by a vote of 66 2/3%
of the directors then still in office who were either
directors at the beginning of such period or whose
election as directors or nomination for election was
previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the
Company or Holding, as the case may be, then in office;
or
(v) the approval by stockholders of the Company
of any plan or proposal for the liquidation or
dissolution of the Company, or any final order,
judgment or decree of a court of competent jurisdiction
shall be entered against the Company decreeing the
dissolution or liquidation of the Company.
(c) Prior to the mailing of the notice to Holders
provided for in paragraph (d) below, the Company shall have
(x) terminated all commitments and repaid in full all
Indebtedness under the Credit Agreement and all other Credit
Agreement Obligations then due and owing, or (y) obtained
the requisite consents under the Credit Agreement to permit
the purchase of the Notes as provided for under this
covenant. If a notice has been mailed when such condition
precedent has not been satisfied, the Company shall have no
obligation to (and shall not) effect the purchase of Notes
until such time as such condition precedent is satisfied.
Failure to mail the notice on the date specified below or to
have satisfied the foregoing condition precedent by the date
that the notice is required to be mailed shall in any event
constitute a covenant default under Section 6.01(iv).
(d) Within 30 days following any Change of
Control (or at the Company's option, prior to such Change of
Control, in anticipation of such Change of Control), the
Company shall send by first class mail a written notice to
each Holder at its registered address with a copy to the
Trustee stating: (1) that a Change of Control has occurred
(or will occur) and that such Holder has the right to
73
require the Company to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to date
of repurchase (subject to the right of Holders of record on
a record date to receive interest on the relevant interest
payment date); (2) the circumstances and relevant facts and
financial information regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is
mailed); (4) the instructions determined by the Company,
consistent with this covenant, that a Holder must follow in
order to have its Notes purchased; and (5) that, if such
offer is made prior to such Change of Control, payment is
conditioned on the occurrence of such Change of Control.
(e) Holders electing to have a Note purchased
will be required to surrender the Note, with an appropriate
form duly completed, to the Company at the address specified
in the notice at least three Business Days prior to the
repurchase date. Holders will be entitled to withdraw their
election if the Trustee or the Company receives not later
than two Business Days prior to the purchase date, a
telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the
Note which was delivered for purchase by the Holder, the
certificate number of the Note in respect of which such
notice of withdrawal is being submitted and a statement that
such Holder is withdrawing his election to have such Notes
purchased.
(f) On the purchase date, all Notes purchased by
the Company under this Section shall be delivered by the
Trustee for cancellation, and the Company shall pay the
purchase price accrued and unpaid interest, if any, to the
Holders entitled thereto.
(g) The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) under the
Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to this
covenant. To the extent that the provisions of any
securities laws or regulations conflict with provisions of
this covenant, the Company shall comply with the applicable
securities laws and regulations and will not be deemed to
have breached its obligations under this paragraph by virtue
thereof.
Section 4.20. Reporting Requirements.
Notwithstanding that the Company may not be required to
74
remain subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, to the extent permitted by the
Exchange Act or the interpretations of the SEC in respect
thereof, the Company shall file with the SEC and provide,
within five days after the Company is required to file the
same with the SEC, to the Trustee the annual reports and the
information, documents and other reports that are specified
in Sections 13 and 15(d) of the Exchange Act. In the event
that the Company is not permitted to file such reports,
documents and information with the SEC, the Company shall
provide substantially similar information to the Trustee,
Noteholders and prospective Noteholders (upon reasonable
request) as if the Company were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act.
The Company also will comply with the other provisions of
TIA Section 314(a).
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. Merger, Consolidation and Sale of
Assets. (a) The Company shall not, in any transaction or
series of related transactions, merge or consolidate with or
into, or sell, assign, convey, transfer, lease or otherwise
dispose of all or substantially all of its properties and
assets to, any Person or Persons, and the Company shall not
permit any Restricted Subsidiary to enter into any such
transaction or series of transactions if such transaction or
series of transactions, in the aggregate, would result in a
sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all of the properties
and assets of the Company or of the Company and its
Subsidiaries on a consolidated basis to any other Person or
Persons, unless at the time of and immediately after giving
effect thereto (i) either (A) if the transaction or
transactions is a merger or consolidation, the Company shall
be the surviving Person of such merger or consolidation, or
(B) the Person formed by such consolidation or into which
the Company or such Restricted Subsidiary is merged or to
which the properties and assets of the Company or such
Restricted Subsidiary, as the case may be, substantially as
an entirety, are sold, assigned, transferred, leased or
otherwise disposed of (any such surviving Person or
transferee Person being the "Surviving Entity") shall be a
corporation organized and existing under the laws of the
United States of America, any State thereof or the District
of Columbia and shall expressly assume by a supplemental
75
indenture executed and delivered to the Trustee, in form and
substance satisfactory to the Trustee, all the obligations
of the Company under the Notes and this Indenture, and in
each case, this Indenture shall remain in full force and
effect; and (ii) immediately after giving effect to such
transaction or series of related transactions on a pro forma
basis (including, without limitation, any Indebtedness
Incurred or anticipated to be Incurred in connection with or
in respect of such transaction or series of transactions),
(x) no Default or Event of Default shall have occurred and
be continuing and (y) the Company or the Surviving Entity,
as the case may be, could Incur $1.00 of additional
Indebtedness pursuant to Section 4.08(a); provided that this
Section 5.01(a) shall not apply to or restrict the Merger.
In connection with any consolidation, merger,
sale, assignment, conveyance, transfer, lease or other
disposition contemplated hereby, the Company shall deliver,
or cause to be delivered, to the Trustee, in form and
substance satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition and the supplemental
indenture in respect thereof comply with the requirements
under this Indenture. In addition, each Note Guarantor,
unless it is the other party to the transaction or unless
its Note Guarantee will be released and discharged in
accordance with its terms as a result of the transaction,
will be required to confirm, by supplemental indenture, that
its Note Guarantee will apply to the obligations of the
Company or the Surviving Entity under this Indenture.
(b) The Company agrees, as soon as possible, to
cause the Merger to be consummated and the First
Supplemental Indenture to be executed. Concurrently with
the execution and delivery of the First Supplemental
Indenture, the Company shall deliver to the Trustee an
Opinion of Counsel in form and substance satisfactory to the
Trustee stating that such supplemental indenture has been
duly authorized, executed and delivered by Xxxxxxx-Xxxxxx,
Inc. and Holding and that, subject to the applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent
conveyance, reorganization, moratorium and other laws now or
hereafter in effect affecting creditors' rights generally
and the general principles of equity (including, without
limitation, standards of materiality, good faith, fair
dealing and reasonableness), such supplemental indenture is
a valid and legally binding agreement of Xxxxxxx-Xxxxxx,
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Inc. and Holding, enforceable against such parties in
accordance with its terms.
Section 5.02. Successor Substituted. Upon any
consolidation or merger or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all
of the assets of the Company in accordance with Section 5.01
in which the Company is not the continuing obligor under
this Indenture, the Surviving Entity 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 had been named as the Company herein, and
thereafter the predecessor Person shall be relieved of all
obligations under this Indenture and the Notes, except that
the predecessor Person in the case of a transfer by lease
will not be released from the obligation to pay the
principal of, premium, if any, and interest on the Notes.
For all purposes of this Indenture and the Notes
(including the provision of this Section 5.02 and
Sections 4.08, 4.09 and 4.11), Subsidiaries of any Surviving
Entity shall, upon such transaction or series of related
transactions, become Restricted Subsidiaries or Unrestricted
Subsidiaries as provided pursuant to the definition of
"Unrestricted Subsidiary" set forth in Section 1.01, and all
Indebtedness, and all Liens on property or assets, of the
Surviving Entity and its Subsidiaries (other than
Indebtedness, and Liens on property or assets, of the
Company and its Restricted Subsidiaries outstanding
immediately prior to such transaction or series of related
transactions) shall be deemed to have been Incurred upon
such transaction or series of related transactions.
ARTICLE SIX
REMEDIES
Section 6.01. Events of Default. An "Event of
Default" means any of the following events:
(i) default in the payment of principal of, or
premium, if any, when due and payable, on any of the
Notes (at its Stated Maturity, upon optional
redemption, required repurchase, or otherwise); or
(ii) default in any payment of an installment of
interest on any of the Notes when due and payable, for
30 days; or
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(iii) failure to perform or comply with
Section 5.01; or failure to offer to repurchase or to
repurchase the Notes in the Event of a Change of
Control in accordance with Section 4.19; or
(iv) the Company or any Note Guarantor shall fail
to perform or observe any other term, covenant or
agreement contained in the Notes, any Note Guarantee or
this Indenture (other than a Default specified in
clause (i), (ii) or (iii) of this Section 6.01) for a
period of 30 days after written notice of such failure
requiring the Company to remedy the same shall have
been given (x) to the Company by the Trustee or (y) to
the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Notes then
outstanding; or
(v) default or defaults under one or more
mortgages, bonds, debentures or other evidences of
Indebtedness under which the Company or any Restricted
Subsidiary then has outstanding Indebtedness in excess
of $15,000,000, individually or in the aggregate, and
either (a) such a principal amount of such Indebtedness
is already due and payable in full or (b) such default
or defaults have resulted in the acceleration of the
maturity of such Indebtedness; or
(vi) one or more judgments, orders or decrees of
any court or regulatory or administrative agency of
competent jurisdiction for the payment of money in
excess of $15,000,000, either individually or in the
aggregate, shall be entered against the Company, any
Note Guarantor or any Significant Restricted Subsidiary
or any of their respective properties and shall not be
discharged or fully bonded and either (a) any creditor
shall have commenced an enforcement proceeding upon
such judgment, order or decree or (b) there shall have
been a period of 60 days after the date on which any
period for appeal has expired and during which a stay
of enforcement of such judgment, order or decree shall
not be in effect; or
(vii) (A) any holder of at least $15,000,000 in
aggregate principal amount of Indebtedness of the
Company or any Restricted Subsidiary as to which a
default has occurred and is continuing shall commence
judicial proceedings (which proceedings shall remain
unstayed for 5 Business Days) to foreclose upon assets
of the Company or any Restricted Subsidiary having an
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aggregate Fair Market Value, individually or in the
aggregate, in excess of $15,000,000 or shall have
exercised any right under applicable law or applicable
security documents to take ownership of any such assets
in lieu of foreclosure or (B) any action described in
the foregoing clause (A) shall result in any court of
competent jurisdiction issuing any order for the
seizure of such assets; or
(viii) any Note Guarantee of a Significant Note
Guarantor ceases to be in full force and effect or is
declared null and void or any Note Guarantor denies
that it has any further liability under any Note
Guarantee, or gives notice to such effect (other than
by reason of the termination of this Indenture or the
release of any such Note Guarantee in accordance with
this Indenture); or
(ix) there shall have been the entry by a court
of competent jurisdiction of (a) a decree or order for
relief in respect of the Company, any Significant Note
Guarantor or any Significant Restricted Subsidiary in
an involuntary case or proceeding under any applicable
Bankruptcy Law or (b) a decree or order adjudging the
Company, any Significant Note Guarantor or any
Significant Restricted Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of the
Company, any Significant Note Guarantor or any
Significant Restricted Subsidiary under any applicable
federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company, any
Significant Note Guarantor or any Significant
Restricted Subsidiary or of any substantial part of
their respective properties, or ordering the winding up
or liquidation of their affairs, and any such decree or
order for relief shall continue to be in effect, or any
such other decree or order shall be unstayed and in
effect, for a period of 60 consecutive days; or
(x) (a) the Company, any Significant Note
Guarantor or any Significant Restricted Subsidiary
commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (b)
the Company, any Significant Note Guarantor or any
Significant Restricted Subsidiary consents to the entry
of a decree or order for relief in respect of the
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Company, any Significant Note Guarantor or such
Significant Restricted Subsidiary in an involuntary
case or proceeding under any applicable Bankruptcy Law
or to the commencement of any bankruptcy or insolvency
case or proceeding against it, (c) the Company, any
Significant Note Guarantor or any Significant
Restricted Subsidiary files a petition or answer or
consent seeking reorganization or relief under any
applicable federal or state law, (d) the Company, any
Significant Note Guarantor or any Significant
Restricted Subsidiary (1) consents to the filing of
such petition or the appointment of, or taking
possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of
the Company, any Significant Note Guarantor or such
Significant Restricted Subsidiary or of any substantial
part of their respective properties, (2) makes an
assignment for the benefit of creditors or (3) admits
in writing its inability to pay its debts generally as
they become due, or (e) the Company, any Significant
Note Guarantor or any Significant Restricted Subsidiary
takes any corporate action in furtherance of any such
actions in this paragraph (x).
Section 6.02. Acceleration. If an Event of
Default (other than an Event of Default specified in
Section 6.01(ix) or (x) with respect to the Company) occurs
and is continuing, the Trustee, by notice to the Company, or
the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding, by notice to the Trustee and the
Company, may declare the principal of, premium, if any, and
accrued interest on all the Notes due and payable immedi-
ately, upon which declaration all amounts payable in respect
of the Notes shall immediately be due and payable; provided
that so long as the Credit Agreement shall be in full force
and effect, if an Event of Default shall have occurred and
be continuing (other than an Event of Default specified in
Section 6.01(ix) or (x) with respect to the Company), any
such acceleration shall not be effective until the earlier
to occur of (x) five Business Days following delivery of a
written notice of such acceleration of the Notes to the Bank
Agent under the Credit Agreement and (y) the acceleration of
any Indebtedness under the Credit Agreement. If an Event of
Default specified in Section 6.01(ix) or (x) with respect to
the Company occurs and is continuing, then the principal of,
premium, if any, and interest on all the Notes shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustees or any
Holder.
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Notwithstanding the foregoing, in the event of a
declaration of acceleration in respect of the Notes because
(x) an Event of Default specified in Section 6.01(v) shall
have occurred and be continuing, such declaration of
acceleration of the Notes and such Event of Default shall be
automatically annulled and rescinded and be of no further
effect if the Indebtedness that is the subject of such Event
of Default has been discharged or paid in full or such Event
of Default shall have been cured or waived by the holders of
such Indebtedness and if such Indebtedness has been
accelerated, then the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness
or (y) an Event of Default specified in Section 6.01(vii)
shall have occurred and be continuing, such declaration of
acceleration of the Notes and such Event of Default shall be
automatically annulled and rescinded and be of no further
effect if the proceedings or enforcement action with respect
to the Indebtedness that is the subject of such Event of
Default is terminated or rescinded, or such Indebtedness is
paid in full and only so long as any holder of such
Indebtedness shall not have applied any assets referenced in
Section 6.01(vii) in satisfaction of such Indebtedness and,
in the case of both (x) and (y) of this paragraph, written
notice of such discharge, cure or waiver and rescission, as
the case may be, shall have been given to the Trustee within
60 days after such declaration of acceleration in respect of
the Notes by the Company or by the requisite holders of such
Indebtedness or a trustee, fiduciary or agent for such
holders or other evidence satisfactory to the Trustee of
such events is provided to the Trustee and no other Event of
Default shall have occurred which has not been cured or
waived during such 60-day period.
After a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of
money due has been obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the outstanding
Notes, by written notice to the Company and the Trustee, may
rescind such declaration if:
(a) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(i) all sums paid or advanced by the
Trustee under this Indenture and the reasonable
compensation, expenses, disbursements, and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Notes,
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(iii) the principal of, and premium, if any,
on any Notes which have become due otherwise than
by such declaration of acceleration and interest
thereon at the rate borne by the Notes, and
(iv) to the extent that payment of such
interest is lawful, interest upon overdue interest
at the rate borne by the Notes which has become
due otherwise than by such declaration of
acceleration;
(b) the rescission would not conflict with any
judgment or decree of a court of competent
jurisdiction; and
(c) all Events of Default, other than the
non-payment of principal of, premium, if any, and
interest on the Notes that has become due solely by
such declaration of acceleration, have been cured or
waived.
No such rescission shall affect any subsequent
Default or Event of Default or impair any right consequent
thereon.
Section 6.03. Other Remedies. If an Event of
Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to col-
lect the payment of principal of, premium, if any, or
interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
All rights of action and claims under this Inden-
ture or the Notes may be enforced by the Trustee even if it
does not possess any of the Notes or does not produce any of
them in the proceeding. A delay or omission by the Trustee
or any Noteholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent
permitted by law.
Section 6.04. Waiver of Past Defaults. The
Holders of not less than a majority in aggregate principal
amount of the outstanding Notes by notice to the Trustee
may, on behalf of the Holders of all the Notes, waive any
past Defaults and their consequences, except a Default or
Event of Default specified in Section 6.01(i) or (ii) or in
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respect of any covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of
each Note outstanding. When a Default or Event of Default
is so waived, it shall be deemed cured and shall cease to
exist.
Section 6.05. Control by Majority. The Holders
of at least a majority in aggregate principal amount of the
outstanding Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee; provided that the Trustee may
refuse to follow any direction (a) that conflicts with any
rule of law or this Indenture, (b) that the Trustee deter-
mines may be unduly prejudicial to the rights of another
Noteholder, or (c) that may expose the Trustee to personal
liability unless the Trustee has indemnification satis-
factory to it in its sole discretion against any loss or
expense caused by its following such direction; and pro-
vided, further, that the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with
such direction.
Section 6.06. Limitation on Suits. No Holder of
any Notes shall have any right to institute any proceeding
with respect to this Indenture or any remedy thereunder,
unless:
(a) the Holder gives written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate
principal amount of the outstanding Notes make a writ-
ten request to the Trustee to pursue the remedy within
30 days of the receipt of such notice;
(c) such Holder or Holders offer and, if
requested, provide to the Trustee reasonable indemnity,
satisfactory to the Trustee against any loss, liability
or expense, to institute such proceeding as Trustee
under the Notes and this Indenture;
(d) the Trustee does not comply with the request
within 30 days after receipt of the notice and, if
requested, provision of indemnity; and
(e) during such 30-day period the Holders of a
majority in aggregate principal amount of the out-
83
standing Notes do not give the Trustee a direction
which is inconsistent with the request.
The foregoing limitations shall not apply to a
suit instituted by a Holder for the enforcement of the
payment of the principal of, premium, if any, or interest
on, such Note held by such Holder on or after the respective
due dates set forth in such Note.
Section 6.07. Right of Holders to Receive Pay-
ment. Notwithstanding any other provision in this Inden-
ture, the right of any Holder of Notes to receive payment of
the principal of and interest on such Note, on or after the
respective Stated Maturities expressed in such Note, or to
bring suit for the enforcement of any such payment on or
after the respective Stated Maturities, is absolute and
unconditional and shall not be impaired or affected without
the consent of the Holder.
Section 6.08. Collection Suit by Trustee. If an
Event of Default specified in clause (i) or (ii) of Section
6.01 occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust
against the Company, any Note Guarantor or any other obligor
on the Notes for the whole amount of principal of and
accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the
Notes and 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.
Section 6.09. Trustee May File Proofs of Claims.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in any judicial proceedings relative to the
Company or any Note Guarantor (or any other obligor upon the
Notes), their creditors or their property and shall be
entitled and empowered to collect and receive any monies or
other property payable or deliverable on any such claims and
to distribute the same, and any Custodian in any such
judicial proceedings 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
84
directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section
7.08. 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, arrange-
ment, adjustment or composition affecting the Notes 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 6.10. Priorities. If the Trustee col-
lects any money pursuant to this Article Six, it shall pay
out such money in the following order:
First: to the Trustee for amounts due under
Section 7.08;
Second: subject to Article Eleven, to Holders for
interest accrued on the Notes, ratably, without pref-
erence or priority of any kind, according to the
amounts due and payable on the Notes for interest;
Third: subject to Article Eleven, to Holders for
principal amounts owing under the Notes, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Notes for prin-
cipal; and
Fourth: the balance, if any, to the Company or,
to the extent the Trustee collects any amount from any
Note Guarantor, to such Note Guarantor.
The Trustee, upon prior written notice to the
Company, may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this Inden-
ture or in any suit against the Trustee for any action taken
or omitted by it as Trustee, a court may in its discretion
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including rea-
sonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section
6.11 does not apply to any suit by the Trustee, any suit by
85
a Holder pursuant to Section 6.07, or a suit by Holders of
more than 10% in aggregate principal amount of the out-
standing Notes.
Section 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture, any
Note or any Note Guarantee and such proceeding has been dis-
continued or abandoned for any reason, or has been deter-
mined adversely to the Trustee or to such Holder, then and
in every such case the Company, each Note Guarantor, the
Trustee and the Holders shall, subject to any determination
in such proceeding, 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.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties. (a) 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, and shall use the same degree of care and skill
in their exercise, as a prudent Person would exercise or use
under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of
Default,
(1) the Trustee need perform only such duties as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the require-
ments of this Indenture; but in the case of any such
certificates or opinions which by 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.
86
(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 willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant
to Section 6.05.
(d) 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.
(e) Every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (a),
(b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest
on any assets received by it except as the Trustee may agree
with the Company. Assets held in trust by the Trustee need
not be segregated from other assets except to the extent
required by law.
Section 7.02. Rights of Trustee. Subject to
Section 7.01 hereof and the provisions of TIA Section 315:
(a) The Trustee may rely on any document believed
by it to be genuine and to have been signed or pre-
sented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from
acting, it may consult with counsel and may require an
Officers' Certificate or an Opinion of Counsel, which
shall conform to Sections 12.04 and 12.05. The Trustee
shall not be liable for any action it takes or omits to
87
take in good faith in reliance on such certificate or
opinion.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any
action taken or omitted by it in good faith and
believed by it to be authorized or within the dis-
cretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of its
own willful misconduct or negligence.
(e) The Trustee may consult with counsel of its
own choosing and the advice or opinion of such counsel
as to matters of law shall be full and complete autho-
rization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and
in accordance with the advice or opinion of such coun-
sel.
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opin-
ion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see
fit.
(g) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of
any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be
incurred therein or thereby.
Section 7.03. Individual Rights of Trustee. The
Trustee, any Paying Agent, Registrar or any other agent of
the Company, in its individual or any other capacity, may
become the owner or pledgee of Notes and, subject to Sec-
tions 7.11 and 7.12 and TIA Sections 310 and 311, may other-
wise deal with the Company and its Subsidiaries with the
same rights it would have if it were not the Trustee, Paying
Agent, Registrar or such other agent.
88
Section 7.04. Trustee's Disclaimer. The Trustee
makes no representations as to the validity or sufficiency
of this Indenture, the Notes or of any Note Guarantee, it
shall not be accountable for the Company's use or
application of the proceeds from the Notes, it shall not be
responsible for the use or application of any money received
by any Paying Agent other than the Trustee and it shall not
be responsible for any statement in the Notes other than the
Trustee's certificate of authentication.
Section 7.05. Notice of Default. If a Default or
an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Holder
notice of the Default or Event of Default within 30 days
after the occurrence thereof; provided that, except in the
case of a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on any Note, the
Trustee may withhold the notice to the Holders of such Notes
if a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests
of the Holders.
Section 7.06. Money Held in Trust. All moneys
received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other
funds except to the extent required herein or by law. The
Trustee shall not be under any liability for interest on any
moneys received by it hereunder.
Section 7.07. Reports by Trustee to Holders.
Within 60 days after each November 15 beginning with the
November 15 following the date of this Indenture, the
Trustee shall, to the extent that any of the events
described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a
brief report dated as of such November 15 that complies with
TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
A copy of each report at the time of its mailing
to Holders shall be mailed to the Company and filed with the
SEC and each securities exchange, if any, on which the Notes
are listed.
The Company shall notify the Trustee in writing if
the Notes become listed on any securities exchange and of
any delisting thereof.
89
Section 7.08. Compensation and Indemnity. The
Company covenants and agrees to pay the Trustee from time to
time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it,
including costs of collection. Such expenses shall include
the reasonable compensation, disbursements and expenses of
the Trustee's agents and counsel, accountants and experts.
The Company shall indemnify the Trustee for, and
hold it harmless against, any loss, liability, claim or
expense (including reasonable attorneys' fees and expenses)
incurred by it arising out of or in connection with the
administration of this trust and its rights or duties
hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
acceptance, exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which
it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company
need not reimburse any expense or indemnify against any loss
or liability to the extent incurred by the Trustee through
its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in
this Section 7.08, the Trustee shall have a Lien prior to
the Notes on all assets held or collected by the Trustee, in
its capacity as Trustee, except assets held in trust to pay
principal of, premium, if any, or interest on particular
Notes.
When the Trustee incurs expenses or renders ser-
vices in connection with an Event of Default specified in
Section 6.01(ix) or (x), the expenses and the compensation
for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.08
and any Lien arising hereunder shall survive the resignation
or removal of any trustee, the discharge of the Company's
obligations pursuant to Article Eight and/or the termination
of this Indenture.
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Section 7.09. Replacement of Trustee. The
Trustee may resign by so notifying the Company. The Holders
of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Company and the
Trustee and may appoint a successor trustee with the
Company's consent. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section
7.11;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;
(c) a receiver or other public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, the
Company shall notify each Holder of such event and shall
promptly appoint a successor Trustee. The Trustee shall be
entitled to payment of its fees and reimbursement of its
expenses while acting as Trustee, and to the extent such
amounts remain unpaid, the Trustee that has resigned or has
been removed shall retain the Lien afforded by Section 7.08.
Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the
outstanding Notes may appoint a successor Trustee to replace
the successor Trustee appointed by the Company. No retiring
Trustee shall have any obligation to provide to any
successor Trustee any form of indemnity or other financial
assurances concerning the fees and expenses of the successor
Trustee.
A successor Trustee shall deliver a written accep-
tance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor
Trustee, subject to the Lien provided in Section 7.08, the
resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Inden-
ture. A successor Trustee shall mail notice of its suc-
cession to each Noteholder.
If a successor Trustee does not take office within
60 days after the retiring Trustee resigns or is removed,
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the retiring Trustee, the Company or the Holders of at least
10% in principal amount of the outstanding Notes may peti-
tion any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.11,
any Holder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a
successor Trustee.
Notwithstanding replacement of the Trustee pur
suant to this Section 7.09, the Company's obligations under
Section 7.08 shall continue for the benefit of the retiring
Trustee.
Section 7.10. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust
business or assets to, another corporation or national
banking association, the resulting, surviving or transferee
corporation or national banking association without any
further act shall, if such resulting, surviving or
transferee corporation or national banking association is
otherwise eligible hereunder, be the successor Trustee.
In case at the time such successor or successors
by consolidation, merger, conversion or transfer to the
Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but
not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor
trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate
such Notes either in the name of any predecessor hereunder
or in the name of the successor to the Trustee; and in all
such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided
that the certificate of the Trustee shall have.
Section 7.11. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under TIA Sections 310(a)(1)
and 310(a)(5) and which shall have a combined capital and
surplus of at least $50,000,000. If such corporation pub-
lishes 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
92
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, the Trustee shall resign imme-
diately in the manner and with the effect hereinafter speci-
fied in this Article. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or
certificates of interest or participation in other
securities of the Company or any Note Guarantor are
outstanding if the requirements for such exclusion set forth
in TIA Section 310(b)(1) are met.
Section 7.12. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA
Section 311(b). If the present or any future Trustee shall
resign or be removed, it shall be subject to TIA Section
311(a) to the extent provided therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01. Termination of the Company's Obli-
gations. The Company may terminate its obligations under
the Notes and this Indenture, and the obligations of any
Note Guarantor shall terminate except those obligations
referred to in the penultimate paragraph of this Section
8.01, when:
(i) either (a) all the Notes previously
authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced or paid) have
been delivered to the Trustee for cancellation or
(b) all Notes not theretofore delivered to the Trustee
for cancellation (x) have become due and payable
hereunder, (y) will become due and payable at their
Stated Maturity within one year or (z) are to be called
for redemption within one year 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;
(ii) the Company shall have irrevocably deposited
or caused to be deposited with the Trustee under the
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terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds
in trust solely for the benefit of the Holders for that
purpose, cash in Dollars, U.S. Government Obligations,
or a combination thereof, in such amount as is
sufficient without consideration of reinvestment of
such interest, to pay and discharge the entire
indebtedness on the Notes (except lost, stolen or
destroyed Notes which have been replaced or paid) not
theretofore delivered to the Trustee for cancellation,
including principal of, premium, if any, and interest
on the outstanding Notes at such Stated Maturity or the
relevant Redemption Date; provided that the Trustee
shall have been irrevocably instructed to apply such
money to the payment of said principal, premium, if
any, and interest with respect to the Notes at such
Stated Maturity or Redemption Date; and, provided,
further, that from and after the time of deposit, the
money deposited shall not be subject to the rights of
holders of Senior Indebtedness pursuant to the
provisions of Article Ten;
(iii) the Company shall have paid all other sums
payable by it hereunder; and
(iv) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
providing for the termination of the Company's
obligation under the Notes and this Indenture have been
complied with.
Notwithstanding the foregoing paragraph, the
Company's obligations in Sections 2.05, 2.06, 2.07, 2.08,
4.01, 4.02 and 7.08 and any Note Guarantor's obligations in
respect thereof shall survive until the Notes are no longer
outstanding pursuant to the last paragraph of Section 2.08.
After the Notes are no longer outstanding, the Company's
obligations in Sections 7.08, 8.04 and 8.05 and any Note
Guarantor's obligations in respect thereof shall survive.
After such delivery or irrevocable deposit the
Trustee upon request shall acknowledge in writing the dis-
charge of the Company's and any Note Guarantor's obligations
under the Notes and this Indenture except for those sur-
viving obligations specified above.
Section 8.02. Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution
94
which shall be delivered to the Trustee, at any time, with
respect to the outstanding Notes and the Note Guarantees,
elect to have either paragraph (b) or paragraph (c) below be
applied to the outstanding Notes and the Note Guarantees
upon compliance with the conditions set forth in paragraph
(d).
(b) Upon the Company's exercise under paragraph
(a) of the option applicable to this paragraph (b), each of
the Company and any Note Guarantor shall be deemed to have
been released and discharged from its respective obligations
with respect to the outstanding Notes and the Note
Guarantees on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented
by the then outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of para-
graph (e) below and the other Sections of and matters under
this Indenture referred to in (i) and (ii) of this
paragraph, and to have satisfied all its other obligations
under such Notes and this Indenture insofar as such Notes
are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the
same), and Holders of the Notes and the Note Guarantees and
any amounts deposited under paragraph (d) below shall cease
to be subject to any obligations to, or the rights of, any
holder of Senior Indebtedness or Guarantor Senior
Indebtedness under Articles Ten, Eleven or otherwise, except
for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive solely from the
trust fund described in paragraph (d) below and as more
fully set forth in such paragraph, payments in respect of
the principal of, premium, if any, and interest on such
Notes when such payments are due, (ii) the Company's
obligations with respect to such Notes under Sections 2.06,
2.07 and 4.02, and, with respect to the Trustee, under
Section 7.08 and any Note Guarantor's obligations in respect
thereof, (iii) the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder and (iv)
this Section 8.02 and Section 8.05. Subject to compliance
with this Section 8.02, the Company may exercise its option
under this paragraph (b) notwithstanding the prior exercise
of its option under paragraph (c) below with respect to the
Notes.
(c) Upon the Company's exercise under para
graph (a) of the option applicable to this paragraph (c),
95
the Company shall be released and discharged from its obli-
gations under any covenant contained in Sections 4.03
through 4.20 with respect to the outstanding Notes on and
after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Notes shall
thereafter be deemed to be not "outstanding" for the purpose
of any direction, waiver, consent or declaration 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 and Holders
of the Notes and the Note Guarantees and any amounts
deposited under paragraph (d) below shall cease to be
subject to any obligations to, or the rights of, any holder
of Senior Indebtedness or Guarantor Senior Indebtedness
under Articles Ten, Eleven or otherwise. For this purpose,
such covenant defeasance means that, with respect to the
outstanding Notes, the Company and any Note Guarantor 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
Article Six, but, except as specified above, the remainder
of this Indenture and such Notes shall be unaffected
thereby. In addition, in the event covenant defeasance
occurs, the Events of Default specified in Sections 6.01(v),
(vi) or (vii) will no longer constitute Events of Default
with respect to the Notes.
(d) The following shall be the conditions to
application of either paragraph (b) or paragraph (c) above
to the outstanding Notes:
(i) the Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.11 who
shall agree to comply with the provisions of this
Section 8.02 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 Notes,
(x) cash in Dollars, or (y) U.S. Government Obligations
maturing as to principal, premium, if any, and interest
in such amounts of money and at such times as are
sufficient without consideration of any reinvestment of
such interest, to pay principal of, premium, if any,
and interest on the outstanding Notes on the Stated
96
Maturity or relevant Redemption Date of such principal
or installment of interest not later than one day
before the due date of any payment, or (z) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent 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 principal of,
premium, if any, and interest on the outstanding Notes
on the Maturity Date or Redemption Date or otherwise in
accordance with the terms of this Indenture and of such
Notes; provided that the Trustee shall have received an
irrevocable written order from the Company instructing
the Trustee (or other qualifying trustee) to apply such
money or the proceeds of such U.S. Government Obli-
gations to said payments with respect to the Notes;
(ii) in the case of an election under paragraph
(b) above, 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, which ruling
must be referred to, or (y) since the Issue Date, 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 outstanding Notes 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 xxxxx-
xxxxx had not occurred;
(iii) in the case of an election under paragraph
(c) above, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Notes will not recognize
income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be sub-
ject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been
the case if such covenant defeasance had not occurred;
(iv) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit
or, insofar as Events of Default specified in
Section 6.01(ix) or (x) are concerned, at any time
during the period ending on the 91st day after the date
97
of such deposit (it being understood that this
condition shall not be deemed satisfied until the
expiration of such period);
(v) such defeasance or covenant defeasance shall
not cause the Trustee to have a conflicting interest
with respect to any securities of the Company or any
Note Guarantor;
(vi) such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a
Default or Event of Default under, this Indenture or
any other agreement or instrument to which the Company
or any Note Guarantor is a party or by which it is
bound;
(vii) the Company shall have delivered to the
trustee an Opinion of Counsel stating that (A) the
trust funds will not be subject to any rights of
holders of Senior Indebtedness, including, without
limitation, those arising under this Indenture, and
(B) after the 91st day following the deposit or after
the date such Opinion of Counsel is delivered, the
trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally; and
(viii) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each satisfactory in form and substance to the
Trustee, stating that all conditions precedent provided
for relating to either the defeasance under paragraph
(b) above or the covenant defeasance under paragraph
(c) above, as the case may be, have been complied with.
(e) All cash in Dollars and U.S. Government
Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for
purposes of this paragraph (e), the "Trustee") pursuant to
paragraph (d) above in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any
Paying Agent (other than the Company or any Affiliate of the
Company) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in
respect of principal and interest, but such money need not
be segregated from other funds except to the extent required
by law.
98
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 paragraph (d) above or the principal, premium, if any,
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 outstanding Notes.
Anything in this Section 8.02 to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the request, in writing, by
the Company any cash in Dollars or U.S. Government
Obligations held by it as provided in paragraph (d) above
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.
Section 8.03. Application of Trust Money. The
Trustee shall hold in trust cash in Dollars or U.S.
Government Obligations deposited with it pursuant to
Sections 8.01 and 8.02, and shall apply the deposited cash
in Dollars and U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium,
if any, and interest on the Notes.
Section 8.04. Repayment to Company or Note
Guarantors. Subject to Sections 7.08, 8.01 and 8.02, the
Trustee shall promptly pay to the Company, or if deposited
with the Trustee by any Note Guarantor, to such Note
Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with
Section 8.02, held by it at any time. The Trustee and the
Paying Agent shall pay to the Company or any Note Guarantor,
as the case may be, upon receipt by the Trustee or the
Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of
principal, premium, if any, or interest that remains
unclaimed for two years; provided that the Trustee and the
Paying Agent before being required to make any payment may,
but need not, at the expense of the Company cause to be
published once in a newspaper of general circulation in The
City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that
after a date specified therein, which shall be at least 30
days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be
99
repaid to the Company. After payment to the Company or any
Note Guarantor, as the case may be, Holders entitled to
money must look solely to the Company for payment as general
creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee
or Paying Agent with respect to such money shall thereupon
cease.
Section 8.05. Reinstatement. If the Trustee or
Paying Agent is unable to apply any cash in Dollars or U.S.
Government Obligations in accordance with this Indenture by
reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had
been made pursuant to this Indenture until such time as the
Trustee is permitted to apply all such cash in Dollars or
U.S. Government Obligations in accordance with this
Indenture; provided that if the Company has made any payment
of principal of, premium, if any, or interest on any Notes
because of the reinstatement of its obligations, the Company
or any such Note Guarantor, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to
receive such payment from the cash in Dollars or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders. The
Company, the Note Guarantors, and the Trustee may amend,
waive or supplement this Indenture or the Notes without
notice to or consent of any Holder:
(a) to cure any ambiguity, omission, defect or
inconsistency;
(b) to comply with Article Five;
(c) to add Guarantees with respect to the Notes;
(d) to secure the Notes;
(e) to add to the covenants of the Company for
the benefit of the Holders;
100
(f) to surrender any right or power conferred
upon the Company or any Note Guarantor;
(g) to make any change that does not adversely
affect the rights of any Holder; or
(h) to comply with any requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA.
After an amendment, supplement or waiver under
this Section 9.01 becomes effective, the Company shall mail
to the Holders, with a copy to the Trustee, a notice briefly
describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity
of any supplemental indenture.
Notwithstanding the foregoing and Section 9.02, on
or after the date hereof (but after the execution and
delivery of this Indenture and the issuance of the Notes and
after or concurrently with consummation of the Merger), the
Company, Holding and the Trustee shall execute and deliver
the First Supplemental Indenture attached as Exhibit B
hereto, without notice to or consent of any Noteholder.
Section 9.02. With Consent of Holders. Subject
to Section 6.04, the Company and the Note Guarantors when
authorized by Board Resolutions of their respective Boards
of Directors, and the Trustee may amend or modify this
Indenture or the Notes with the written consent of the
Holders of not less than a majority in aggregate principal
amount of the Notes then outstanding, and the Holders of not
less than a majority in aggregate principal amount of the
Notes then outstanding by written notice to the Trustee, may
waive future compliance by the Company or any Note Guarantor
with any provision of this Indenture, the Notes or the Note
Guarantees except a default in the payment of principal of,
premium, if any, or interest on the Notes.
Notwithstanding the provisions of this Section
9.02, without the consent of each Holder affected, an amend-
ment, modification or waiver, including a waiver pursuant to
Section 6.04, may not:
(a) reduce the principal amount outstanding of or
extend the Stated Maturity of any Note or alter the
redemption provisions with respect thereto;
101
(b) make the principal of, premium, if any, or
interest on any Note payable in money other than that
stated in the Note;
(c) reduce the percentage in outstanding aggre-
gate principal amount of Notes the Holders of which
must consent to an amendment, supplement or waiver of
or consent to take any action under any provision of
this Indenture, the Notes or any Note Guarantee;
(d) modify or change Section 4.14 or any
provision of this Indenture affecting the subordination
of the Notes or any Note Guarantee in a manner adverse
to the Holders;
(e) impair the right of any Holder to receive
payment of principal of, premium, if any, and interest
on such Holder's Notes on or after the due dates
therefor or to institute suit for the enforcement of
any payment on or with respect to the Notes;
(f) waive a default in the payment of the prin-
cipal of, premium, if any, or interest on, or
redemption or an offer to purchase required hereunder
with respect to, any Note or any Note Guarantee (except
for any waiver of a default in payment to the extent
resulting from a declaration of acceleration under this
Indenture, which declaration has been rescinded by the
Holders as contemplated by the third full paragraph
under Section 6.02);
(g) following the occurrence of a Change of
Control or an Asset Sale, amend, change or modify the
obligation of the Company to offer to repurchase and to
repurchase the Notes in the event of a Change of
Control or make and consummate the Excess Proceeds
Offer with respect to any Asset Sale, including by
modifying any of the provisions or definitions with
respect thereto;
(h) reduce or change the rate or time for payment
of interest on the Notes;
(i) modify this Section 9.02 or Section 6.04 or
Section 6.07; or
(j) release any Significant Note Guarantor from
any of its obligations under its Note Guarantee or this
Indenture other than in compliance with this Indenture.
102
Notwithstanding the foregoing, no amendment shall
modify any provision of this Indenture so as to affect
adversely the rights of any Senior Indebtedness or any
Guarantor Senior Indebtedness representing Credit Agreement
Obligations at the time outstanding which are entitled to
the benefits of subordination under this Indenture (or any
group or representative thereof authorized to give a
consent) without the written consent of such holders.
It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular
form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under
this Section 9.02 becomes effective, the Company shall mail
to the Holders, with a copy to the Trustee, a notice briefly
describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity
of any supplemental indenture.
Section 9.03. Compliance with Trust Indenture
Act. Every amendment of or supplement to this Indenture,
the Notes or the Note Guarantees shall comply with the TIA
as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective,
a consent to it by a Holder is a continuing consent by such
Holder and every subsequent Holder of that Note or portion
of that Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made
on any Note. However, any such Holder or subsequent Holder
may revoke the consent as to his Note or portion of a Note
prior to such amendment, supplement or waiver becoming
effective. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective.
Notwithstanding the above, nothing in this paragraph shall
impair the right of any Holder under Section 316(b) of the
TIA.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders
entitled to consent to any amendment, supplement or waiver.
If a record date is fixed, then notwithstanding the second
and third sentences of the immediately preceding paragraph,
103
those Persons who were Holders at such record date (or their
duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date.
Such consent shall be effective only for actions taken
within 120 days after such record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Holder, unless it makes a
change described in any of clauses (a) through (j) of Sec-
tion 9.02; if it makes such a change, the amendment, sup-
plement or waiver shall bind every subsequent Holder of a
Note or portion of a Note that evidences the same debt as
the consenting Holder's Note.
Section 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee shall (in accordance with the specific
direction of the Company) request the Holder of the Note to
deliver it to the Trustee. The Trustee shall (in accordance
with the specific direction of the Company) place an appro-
priate notation on the Note about the changed terms and
return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the
Note shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms. Failure to make the
appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Trustee May Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Nine if the amendment,
supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver, the
Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of any amend-
ment, supplement or waiver is authorized or permitted by
this Indenture, that it is not inconsistent herewith and
that it will be valid and binding upon the Company in accor-
dance with its terms.
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ARTICLE TEN
GUARANTEE OF NOTES
Section 10.01. Note Guarantee. Subject to the
provisions of this Article Ten, Holding hereby absolutely,
unconditionally and irrevocably guarantees to each Holder of
a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, as a primary obliger
and not merely as a surety, that: (a) the principal of,
premium, if any, and interest on the Notes shall be duly and
punctually paid in full when due, whether at maturity, by
acceleration, by redemption or otherwise, and interest on
the overdue principal and (to the extent permitted by law)
interest, if any, on the Notes and all other obligations of
the Company to the Holders or the Trustee hereunder or
thereunder (including fees and expenses, including
reasonable attorneys' fees and expenses) and all other
Senior Subordinated Note Obligations shall be promptly paid
in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other
Senior Subordinated Note Obligations, the same shall be
promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration, by redemption or
otherwise. Failing payment when due of any amount so
guaranteed, or failing performance of any other obligation
of the Company to the Holders, for whatever reason, Holding
shall be obligated to pay, or to perform or cause the
performance of, the same immediately. This Note Guarantee
shall be a continuing guarantee of payment, performance and
compliance when due (and not a guarantee of collection) in
respect of all Senior Subordinated Note Obligations and
shall remain in full force and effect until the payment in
full of all Senior Subordinated Note Obligations. An Event
of Default under this Indenture or the Notes shall
constitute an event of default under this Note Guarantee,
and shall entitle the Holders of Notes to accelerate the
obligations of Holding hereunder in the same manner and to
the same extent as the obligations of the Company.
Holding hereby agrees that its obligations
hereunder shall be absolute and unconditional, irrespective
of the validity, regularity or enforceability of the Notes
or this Indenture, any extension or renewal of this
Indenture or the Notes, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, any
105
release of any other Note Guarantor, the recovery of any
judgment against the Company, any action to enforce the
same, whether or not a Note Guarantee is affixed to any
particular Note, or any other circumstance which might
otherwise constitute a legal or equitable discharge or
defense of a guarantor. Holding hereby waives the benefit
of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands
whatsoever and covenants that its Note Guarantee will not be
discharged except by complete performance of the obligations
contained in the Notes, this Indenture and this Note
Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company or to Holding,
or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or Holding, any
amount paid by the Company or Holding to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
Holding further agrees that, as between it, on the one hand,
and the Holders of Notes and the Trustee, on the other hand,
(a) subject to this Article Ten, the maturity of the
obligations guaranteed hereby may be accelerated as provided
in Article Six hereof for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (b) in the event of any
acceleration of such obligations as provided in Article Six
hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by Holding for the
purpose of this Note Guarantee.
This Note Guarantee shall remain in full force and
effect and continue to be effective should any petition be
filed by or against the Company for liquidation or reor-
ganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver
or trustee be appointed for all or any significant part of
the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance
of the Notes are, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned
by any obligee on the Notes, whether as a "voidable pref-
erence," "fraudulent transfer" or otherwise, all as though
such payment or performance had not been made. In the event
that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the
106
fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
Any term or provision of this Indenture to the
contrary notwithstanding, the maximum aggregate amount of
the obligations guaranteed hereunder by any Note Guarantor
shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates
to any Note Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
Section 10.02. Execution and Delivery by Holding
of Note Guarantee. To further evidence the Note Guarantee
set forth in Section 10.01, Holding hereby agrees that a
notation of such Note Guarantee, substantially in the form
included in the form of Note included in Exhibit A hereto,
shall be endorsed on each Note authenticated and delivered
by the Trustee after such Note Guarantee is executed and
executed by either manual or facsimile signature of an
Officer of Holding. The validity and enforceability of any
Note Guarantee shall not be affected by the fact that it is
not affixed to any particular Note.
Holding hereby agrees that its Note Guarantee set
forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a
notation of such Note Guarantee.
If an Officer of Holding whose signature is on
this Indenture or a Note no longer holds that office at the
time the Trustee authenticates such Note or at any time
thereafter, Holding's Note Guarantee of such Note shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due
delivery of the Note Guarantee set forth in this Indenture
on behalf of Holding.
Section 10.03. Additional Note Guarantors. Each
Restricted Subsidiary that is required to become a Note
Guarantor pursuant to Section 4.12 or 4.13, and each
Restricted Subsidiary that the Company causes to become a
Note Guarantor pursuant to Section 4.13 or Section 4.17,
shall promptly (a) execute and deliver to the Trustee a
supplemental indenture in form and substance reasonably
satisfactory to the Trustee, which shall subject such
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Restricted Subsidiary to the provisions of this Indenture as
a Note Guarantor on substantially the same terms as set
forth in this Article Ten with respect to the Note Guarantee
of Holding, and (b) the Company shall deliver to the Trustee
an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that such supplemental
indenture has been duly authorized, executed and delivered
by such Restricted Subsidiary and that, subject to the
applicable bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium and other
laws now or hereafter in effect affecting creditors' rights
generally and the general principles of equity (including,
without limitation, standards of materiality, good faith,
fair dealing and reasonableness), such supplemental
indenture is a valid and binding agreement of such
Restricted Subsidiary, enforceable against such Restricted
Subsidiary in accordance with its terms.
Section 10.04. Note Guarantee Obligations
Subordinated to Guarantor Senior Indebtedness. Holding
covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, that all
payments pursuant to the Note Guarantee made by or on behalf
of Holding are hereby expressly made subordinate and,
subject, in right of payment as provided in this Article
Ten, to the prior payment in full in cash or cash equiva-
xxxxx of all amounts payable under all existing and future
Guarantor Senior Indebtedness of Holding.
This Section 10.04 and the following Sections
10.05 through 10.17 of this Article Ten shall constitute a
continuing offer to all Persons who, in reliance upon such
provisions, become holders of, or continue to hold Guarantor
Senior Indebtedness of Holding and, to the extent set forth
in Section 10.06(b), holders of Designated Senior
Indebtedness; and such provisions are made for the benefit
of the holders of Guarantor Senior Indebtedness of Holding
and, to the extent set forth in Section 10.06(b), holders of
Designated Senior Indebtedness; and such holders (to such
extent) are made obligees hereunder and they or each of them
may enforce such provisions.
Section 10.05. Payment Over of Proceeds upon
Dissolution, etc. In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to Holding or
its assets, or (b) any liquidation, dissolution or other
winding-up of Holding, whether voluntary or involuntary, or
108
(c) any assignment for the benefit of creditors or other
marshalling of assets or liabilities of Holding, then and in
any such event:
(1) the holders of all Guarantor Senior Indebt-
edness of Holding shall be entitled to receive payment
in full in cash or cash equivalents, or provision
acceptable to the requisite holders of Guarantor Senior
Indebtedness of Holding made for such payment, of all
amounts due on or in respect of all such Guarantor
Senior Indebtedness before the Holders are entitled to
receive any payment or distribution, whether in cash,
property or securities (excluding Permitted Junior
Securities) on account of the Senior Subordinated Note
Obligations or for the acquisition of any of the Notes;
and
(2) any payment or distribution of assets of
Holding of any kind or character, whether in cash,
property or securities (excluding Permitted Junior
Securities), by set-off or otherwise, to which the
Holders or the Trustee would be entitled but for the
subordination provisions of this Article Ten 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 otherwise, directly to the holders of
Guarantor Senior Indebtedness of Holding or their
representative or representatives or to the trustee or
trustees under any indenture under which any instru-
ments evidencing any of such Guarantor Senior Indebt-
edness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of such
Guarantor Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full
in cash or cash equivalents of all such Guarantor
Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the
holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the fore-
going provisions of this Section 10.05, the Trustee or
the Holder of any Note shall have received any payment
or distribution of assets of Holding of any kind or
character, whether in cash, property or securities, in
respect of any Senior Subordinated Note Obligations
under this Note Guarantee before all Guarantor Senior
Indebtedness of Holding is paid in full in cash or cash
equivalents or payment thereof provided for, then and
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in such event such payment or distribution (excluding
Permitted Junior Securities) shall be paid over or
delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of
assets of Holding for application to the payment of all
such Guarantor Senior Indebtedness remaining unpaid, to
the extent necessary to pay all of such Guarantor
Senior Indebtedness in full in cash or cash equiv-
alents, after giving effect to any concurrent payment
or distribution to or for the holders of such Guarantor
Senior Indebtedness.
The consolidation of Holding with, or the merger
of Holding with or into, another Person or the liquidation
or dissolution of Holding following the conveyance, transfer
or lease of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set
forth in this Indenture shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and
liabilities of Holding for the purposes of this Indenture if
the Person formed by such consolidation or the surviving
entity of such merger or the Person which acquires by
conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as
a part of such consolidation, merger, conveyance, transfer
or lease, comply with the conditions set forth in this
Indenture.
Section 10.06. Suspension of Note Guarantee Obli-
gations When Guarantor Senior Indebtedness in Default.
(a) Unless Section 10.05 shall be applicable, after the
occurrence of a Payment Default no payment or distribution
of any assets of Holding of any kind or character shall be
made by or on behalf of Holding on account of the Senior
Subordinated Note Obligations or on account of the purchase,
redemption, defeasance or other acquisition of the Senior
Subordinated Note Obligations or any of the obligations of
Holding under this Note Guarantee unless and until such
Payment Default shall have been cured or waived or shall
have ceased to exist or the Senior Indebtedness as to which
such Payment Default relates shall have been discharged or
paid in full in cash or cash equivalents, after which,
subject to Section 10.05 (if applicable), Holding shall
resume making any and all required payments in respect of
its obligations under this Note Guarantee.
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(b) Unless Section 10.05 shall be applicable,
during any Payment Blockage Period in respect of the Notes,
no payment or distribution of any assets of Holding of any
kind or character shall be made by or on behalf of Holding
on account of the Senior Subordinated Note Obligations or on
account of the purchase, redemption, defeasance or other
acquisition of the Senior Subordinated Note Obligations or
on account of any of the other obligations of Holding under
this Note Guarantee, provided that the foregoing prohibition
shall not apply unless such Payment Blockage Period has been
instituted under Section 11.03(b) by a Senior Representative
acting for holders of Designated Senior Indebtedness which
also constitutes Guarantor Senior Indebtedness. Upon the
termination of any Payment Blockage Period, subject to
Section 10.05 (if applicable), Holding shall resume making
any and all required payments in respect of its obligations
under this Note Guarantee.
(c) In the event that, notwithstanding the fore-
going, the Trustee or the Holder of any Note shall have
received any payment from Holding prohibited by the fore-
going provisions of this Section 10.06, then and in such
event such payment shall be paid over and delivered forth-
with to the Senior Representative initiating the Payment
Blockage Period, in trust for distribution to the holders of
Guarantor Senior Indebtedness of Holding or, if no amounts
are then due in respect of Guarantor Senior Indebtedness of
Holding, prompt return to Holding, or as a court of
competent jurisdiction shall direct.
Section 10.07. Release of Note Guarantee.
(a) Concurrently with the payment in full of all Senior
Subordinated Note Obligations, then Holding shall be
released from and relieved of its obligations under this
Article Ten. Upon the delivery by the Company to the
Trustee of an Officers' Certificate and, if requested by the
Trustee, an Opinion of Counsel stating that the transaction
giving rise to the release of this Note Guarantee was made
by the Company in accordance with the provisions of this
Indenture and the Notes, the Trustee shall execute any
documents reasonably required in order to evidence the
release of Holding from its obligations under this Note
Guarantee. If any of the Senior Subordinated Note
Obligations are revived and reinstated after the termination
of this Note Guarantee, then all of the obligations of
Holding under this Note Guarantee shall be revived and
reinstated as if this Note Guarantee had not been terminated
until such time as the Senior Subordinated Note Obligations
are paid in full, and Holding shall enter into an amendment
111
to this Note Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
(b) Any Restricted Subsidiary that becomes a Note
Guarantor pursuant to Section 4.12, 4.13 or 4.17 shall be
released and relieved of its obligations under its Note
Guarantee in accordance with the terms thereof, as provided
in Section 4.12 or 4.13.
Section 10.08. Waiver of Subrogation. Holding
hereby irrevocably waives any claim or other rights which it
may now or hereafter acquire against the Company that arise
from the existence, payment, performance or enforcement of
Holding's obligations under this Note Guarantee and this
Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification,
and any right to participate in any claim or remedy of any
Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract,
statute or common law. If any amount shall be paid to
Holding in violation of the preceding sentence and the Notes
shall not have been paid in full, such amount shall have
been deemed to have been paid to Holding for the benefit of,
and held in trust for the benefit of, the Holders of the
Notes, and shall, subject to the subordination provisions of
this Article and to Article Eleven, forthwith be paid to the
Trustee for the benefit of such Holders to be credited and
applied upon the Notes, whether matured or unmatured, in
accordance with the terms of this Indenture.
Section 10.09. Provisions Solely to Define
Relative Rights. The subordination provisions of this
Article Ten are and are intended solely for the purpose of
defining the relative rights of the Holders of the Notes on
the one hand and the holders of Guarantor Senior Indebt-
edness of Holding and, to the extent set forth in Section
10.06, holders of Designated Senior Indebtedness on the
other hand. Nothing contained in this Article Ten or else-
where in this Indenture or in the Notes is intended to or
shall (a) impair, as among Holding, its creditors other than
holders of its Guarantor Senior Indebtedness and the Holders
of the Notes, the obligation of Holding, which is absolute
and unconditional, to make payments to the Holders in
respect of its obligations under this Note Guarantee as and
when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against
Holding of the Holders of the Notes and creditors of Holding
other than the holders of the Guarantor Senior Indebtedness
of Holding; or (c) prevent the Trustee or the Holder of any
112
Note from exercising all remedies otherwise permitted by
applicable law upon Default or an Event of Default under
this Indenture, subject to the rights, if any, under the
subordination provisions of this Article Ten of the holders
of Guarantor Senior Indebtedness of Holding hereunder and,
to the extent set forth in Section 10.06, holders of
Designated Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for
the benefit of creditors or other marshaling of assets and
liabilities of Holding referred to in Section 10.05, to
receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliv-
erable to the Trustee or such Holder, or (2) under the
conditions specified in Section 10.06, to prevent any pay-
ment prohibited by such Section or enforce their rights
pursuant to Section 10.06(c).
The failure by Holding to make a payment in
respect of its obligations under this Note Guarantee by
reason of any provision of this Article Ten shall not be
construed as preventing the occurrence of a Default or an
Event of Default hereunder.
Section 10.10. Trustee to Effectuate
Subordination. Each Holder of a Note by his acceptance
thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Ten
and appoints the Trustee his attorney-in-fact for any and
all such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of
Holding whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for
the unpaid balance of the indebtedness of Holding owing to
such Holder in the form required in such proceedings and the
causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration
of the time to file such a claim, the holders of Guarantor
Senior Indebtedness, or any Senior Representative, may file
such a claim on behalf of Holders of the Notes.
Section 10.11. No Waiver of Subordination
Provisions. (a) No right of any present or future holder
of any Guarantor Senior Indebtedness or Designated 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
Holding or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company or
113
Holding with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection
(a) of this Section 10.11, the holders of Guarantor Senior
Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of
the Notes, without incurring responsibility to the Holders
of the Notes and without impairing or releasing the subordi-
nation provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of such
Guarantor Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, such
Guarantor Senior Indebtedness or any Senior Indebtedness as
to which such Guarantor Senior Indebtedness relates or any
instrument evidencing the same or any agreement under which
such Guarantor Senior Indebtedness or such Senior Indebted-
ness is outstanding; (2) sell, exchange, release or other-
wise deal with any property pledged, mortgaged or otherwise
securing such Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor Senior Indebtedness
relates; (3) release any Person liable in any manner for the
collection or payment of such Guarantor Senior Indebtedness
or any Senior Indebtedness as to which such Guarantor Senior
Indebtedness relates; and (4) exercise or refrain from
exercising any rights against Holding and any other Person;
provided that in no event shall any such actions limit the
right of the Holders of the Notes to take any action to
accelerate the maturity of the Notes pursuant to Article Six
hereof or to pursue any rights or remedies hereunder or
under applicable laws if the taking of such action does not
otherwise violate the terms of this Indenture.
Section 10.12. Notice to Trustee. (a) The
Company and Holding shall give prompt written notice to the
Trustee of any fact known to Holding which would prohibit
the making of any payment to or by the Trustee in respect of
the Notes. Notwithstanding the subordination provisions of
this Article 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 Notes, unless and
until the Trustee shall have received written notice thereof
at its Corporate Trust Office from the Company, Holding or a
holder of its Guarantor Senior Indebtedness or from any
representative, trustee, fiduciary or agent therefor; and,
prior to the receipt of any such written notice, the
114
Trustee, subject to the provisions of this Section 10.12,
shall be entitled in all respects to assume that no such
facts exist; provided that if the Trustee shall not have
received the notice provided for in this Section 10.12 at
least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose
under this Indenture (including, without limitation, the
payment of the principal of or interest on any Note), then,
anything herein contained to the contrary notwithstanding
but without limiting the rights and remedies of the holders
of such Guarantor Senior Indebtedness or any representative,
trustee, fiduciary or agent thereof, 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; nor shall the Trustee be charged with
knowledge of the curing of any such default or the
elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an
Officers' Certificate to such effect.
(b) Subject to the provisions of Section 7.01,
the Trustee shall be entitled to rely on the delivery to it
of a written notice to the Trustee, by a Person representing
himself to be a holder of Guarantor Senior Indebtedness (or
a representative, trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that
further evidence is required with respect to the right of
any Person as a holder of Guarantor Senior Indebtedness to
participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to
the amount of Guarantor Senior Indebtedness held by such
Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this
Article Ten, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to
receive such payment.
Section 10.13. Reliance on Judicial Order or
Certificate of Liquidating Agent Regarding Dissolution, etc.
Upon any payment or distribution of assets of Holding
referred to in this Article Ten, the Trustee, subject to the
provisions of Section 7.01, and the Holders shall be
entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency,
115
bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the
benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the
holders of Guarantor Senior Indebtedness and other
Indebtedness of Holding, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article
Ten; provided that the foregoing shall apply only if such
court has been fully apprised of the provisions of this
Article Ten. The Trustee is not responsible for determining
whether or not the court has been fully apprised of the
provisions of this Article Ten.
Section 10.14. Rights of Trustee as a Holder of
Guarantor 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 Ten
with respect to any Guarantor Senior Indebtedness which may
at any time be held by the Trustee, to the same extent as
any other holder of such Guarantor Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder. Nothing in this Article Ten
shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.08.
Section 10.15. Article Ten 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
Ten 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
Ten in addition to or in place of the Trustee; provided that
Section 10.14 shall not apply to the Company or any Affil-
iate of the Company if it or such Affiliate acts as Paying
Agent.
Section 10.16. No Suspension of Remedies.
Nothing contained in this Article Ten shall limit the right
of the Trustee or the Holders of Notes to take any action to
accelerate the maturity of the Notes pursuant to Article Six
or to pursue any rights or remedies hereunder or under
applicable law, subject to the rights, if any, under this
116
Article Ten of the holders, from time to time, of Guarantor
Senior Indebtedness.
Section 10.17. Trustee's Relation to Guarantor
Senior Indebtedness. With respect to the holders of
Guarantor Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article
Ten (and in Article Eleven with respect to Senior
Indebtedness), and no implied covenants or obligations with
respect to the holders of Guarantor Senior Indebtedness
shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness and the Trustee
shall not be liable to any holder of Guarantor Senior
Indebtedness if it shall mistakenly in the absence of gross
negligence or willful misconduct pay over or deliver to
Holders, Holding or any other Person moneys or assets to
which any holder of Guarantor Senior Indebtedness shall be
entitled by virtue of this Article Ten or otherwise.
Section 10.18. Subrogation. Upon the payment in
full in cash or cash equivalents of all amounts payable
under or in respect of Guarantor Senior Indebtedness, the
Holders shall be subrogated to the rights of the holders of
such Guarantor Senior Indebtedness to receive payments or
distributions of assets of Holding made on such Guarantor
Senior Indebtedness until all amounts due under this Note
Guarantee shall be paid in full; and for the purposes of
such subrogation, no payments or distributions to holders of
such Guarantor Senior Indebtedness of any cash, property or
securities to which Holders of the Notes would be entitled
except for the provisions of this Article Ten, and no
payment pursuant to the provisions of this Article Ten to
holders of such Guarantor Senior Indebtedness by the
Holders, shall, as among Holding, its creditors other than
holders of such Guarantor Senior Indebtedness and the
Holders, be deemed to be a payment by Holding to or on
account of such Guarantor Senior Indebtedness) it being
understood that the provisions of this Article Ten are
solely for the purpose of defining the relative rights of
the holders of such Guarantor Senior Indebtedness, on the
one hand, and the Holders, on the other hand.
If any payment or distribution to which the
Holders would otherwise have been entitled but for the
provisions of this Article Ten shall have been applied,
pursuant to the provisions of this Article Ten, to the
payment of all amounts payable under Guarantor Senior
117
Indebtedness, then and in such case, the Holders shall be
entitled to receive from the holders of such Guarantor
Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of Guarantor Senior
Indebtedness in excess of the amount sufficient to pay all
amounts payable under or in respect of such Guarantor Senior
Indebtedness in full.
ARTICLE ELEVEN
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior
Indebtedness. The Company covenants and agrees, and each
Holder of a Note, by his acceptance thereof, likewise cove-
nants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article Eleven, the Indebt-
edness represented by the Notes and the payment of the
Senior Subordinated Note Obligations are hereby expressly
made subordinate and subject in right of payment as provided
in this Article to the prior payment in full in cash or cash
equivalents of all amounts payable under all existing and
future Senior Indebtedness.
This Article Eleven shall constitute a continuing
offer to all Persons who, in reliance upon such provisions,
become holders of, or continue to hold Senior Indebtedness;
and such provisions are made for the benefit of the holders
of Senior Indebtedness; and such holders are made obligees
hereunder and they or each of them may enforce such pro-
visions.
Section 11.02. Payment over of Proceeds upon
Dissolution, etc. In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership, liqui-
dation, reorganization or other similar case or proceeding
in connection therewith, relating to the Company or to its
assets, or (b) any liquidation, dissolution or other
winding-up of the Company, whether voluntary or involuntary,
or (c) any assignment for the benefit of creditors or other
marshalling of assets or liabilities of the Company, then
and in any such event:
(1) the holders of Senior Indebtedness shall be
entitled to receive payment in full in cash or cash
equivalents or provision acceptable to the requisite
holders of Senior Indebtedness made for such payments,
of all amounts due on or in respect of Senior
118
Indebtedness before the Holders are entitled to receive
any payment or distribution, whether in cash, property
or securities (excluding Permitted Junior Securities)
on account of Senior Subordinated Note Obligations or
for the acquisition of any of the Notes; and
(2) any payment or distribution of assets of the
Company of any kind or character, whether in cash,
property or securities (excluding Permitted Junior
Securities), by set-off or otherwise, to which the
Holders or the Trustee would be entitled but for the
provisions of this Article shall be paid by the liqui-
dating trustee or agent or other Person making such
payment or distribution, whether a trustee in bank-
ruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instru-
ments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, to the extent
necessary to make payment in full in cash or cash
equivalents of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebt-
edness; and
(3) in the event that, notwithstanding the fore-
going provisions of this Section 11.02, the Trustee or
the Holder of any Note shall have received any payment
or distribution of properties or assets of the Company
of any kind or character, whether in cash, property or
securities, by set off or otherwise in respect of any
Senior Subordinated Note Obligations before all Senior
Indebtedness is paid or provided for in full in cash or
cash equivalents, then and in such event such payment
or distribution (excluding Permitted Junior Securities)
shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full in cash or cash equiv-
alents, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebt-
edness.
119
The consolidation of the Company with, or the
merger of the Company with or into, another Person or the
liquidation or dissolution of the Company following the
conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the
terms and conditions set forth in Article Five hereof shall
not be deemed a dissolution, winding-up, liquidation, reor-
ganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the
purposes of this Article if the Person formed by such con-
solidation or the surviving entity of such merger or the
Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the
case may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions
set forth in such Article Five.
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default. (a) Unless Section 11.02 shall be
applicable, upon the occurrence of a Payment Default, no
direct or indirect payment or distribution of any assets of
the Company of any kind or character shall be made by or on
behalf of the Company on account of the Senior Subordinated
Note Obligations or on account of the purchase or redemption
or other acquisition of any Senior Subordinated Note Obli-
gations unless and until such Payment Default shall have
been cured or waived or shall have ceased to exist or such
Senior Indebtedness shall have been discharged or paid in
full in cash in cash equivalents, after which, subject to
Section 11.02 (if applicable), the Company shall resume
making any and all required payments in respect of the Notes
and the other Senior Subordinated Note Obligations, includ-
ing any missed payments.
(b) Unless Section 11.02 shall be applicable,
upon (1) the occurrence of a Non-payment Default and (2)
receipt by the Trustee and the Company from a Senior
Representative of written notice of such occurrence stating
that such notice is a Payment Blockage Notice pursuant to
Section 11.03(b) of this Indenture, no payment or
distribution of any assets of the Company of any kind or
character shall be made by or on behalf of the Company on
account of any Senior Subordinated Note Obligations or on
account of the purchase or redemption or other acquisition
of Senior Subordinated Note Obligations for a period
("Payment Blockage Period") commencing on the date of
receipt by the Trustee of such notice unless and until the
earlier to occur of the following events (subject to any
blockage of payments that may then be in effect under
120
Section 11.02 or subsection (a) of this Section 11.03):
(i) 179 days shall have elapsed since receipt of such
notice, (ii) the date on which such Non-payment Default is
cured or waived or ceases to exist (provided that no other
Payment Default or Non-payment Default has occurred or is
then continuing after giving effect to such cure or waiver),
(iii) the date on which such Designated Senior Indebtedness
is discharged or paid in full in cash or cash equivalents or
(iv) the date on which such Payment Blockage Period shall
have been terminated by express written notice to the
Company or the Trustee from the Senior Representative
initiating such Payment Blockage Period, after which,
subject to Section 11.02 (if applicable), the Company shall
promptly resume making any and all required payments in
respect of the Senior Subordinated Note Obligations,
including any missed payments. Notwithstanding any other
provision of this Indenture, only one Payment Blockage
Period, whether with respect to the Notes, any Note
Guarantee or the Notes and the Note Guarantees collectively,
may be commenced within any 360 consecutive day period. No
Non-payment Default with respect to Designated Senior
Indebtedness that existed or was continuing on the date of
the commencement of any Payment Blockage Period with respect
to the Designated Senior Indebtedness initiating such
Payment Blockage Period (other than any such Non-payment
Default which was not and could not reasonably be expected
to have been known by the holders or the Senior
Representative) will be, or can be, made the basis for the
commencement of a second Payment Blockage Period, whether or
not within a period of 360 consecutive days, unless such
default has been cured or waived for a period of not less
than 90 consecutive days (it being acknowledged that any
subsequent action, or any breach of any financial covenant
for a period commencing after the date of commencement of
such Payment Blockage Period, that, in either case, would
give rise to a Non-payment Default pursuant to any provision
under which a Non-payment Default previously existed or was
continuing shall constitute a new Non-payment Default for
this purpose; provided that, in the case of a breach of a
particular financial covenant, the Company shall have been
in compliance for at least one full period commencing after
the date of commencement of such Payment Blockage Period).
In no event shall a Payment Blockage Period extend beyond
179 days from the date of the receipt by the Trustee of the
notice referred to in clause (2) hereof and there must be a
181 consecutive day period in any 360 day period during
which no Payment Blockage Period is in effect pursuant to
this Section 11.03(b).
121
(c) In the event that, notwithstanding the fore-
going, the Trustee or the Holder of any Note shall have
received any payment or distribution prohibited by the
foregoing provisions of this Section 11.03, then and in such
event such payment or distribution shall be paid over and
delivered forthwith to the Senior Representatives or as a
court of competent jurisdiction shall direct for application
to the payment of any due and unpaid Senior Indebtedness, to
the extent necessary to pay all such due and unpaid Senior
Indebtedness in cash or cash equivalents, after giving
effect to any concurrent payment to or for the holders of
Senior Indebtedness.
Section 11.04. Trustee's Relation to Senior
Indebtedness. With respect to the holders of Senior Indebt-
edness, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically
set forth in this Article Eleven (and in Article Ten with
respect to any Guarantor Senior Indebtedness), and no
implied covenants or obligations with respect to the holders
of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and
the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall mistakenly pay over or deliver to
Holders, the Company, any Note Guarantor or any other Person
moneys or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article Eleven or other-
wise.
Section 11.05. Subrogation to Rights of Holders
of Senior Indebtedness. Upon the payment in full in cash or
cash equivalents of all Senior Indebtedness, the Holders of
the Notes shall be subrogated to the rights of the holders
of such Senior Indebtedness to receive payments and dis-
tributions of cash, property and securities applicable to
the Senior Indebtedness until the principal of and interest
on the Notes shall be paid in full in cash or cash equiv-
alents. For purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness of any
cash, property or securities to which the Holders of the
Notes or the Trustee would be entitled except for the pro-
visions of this Article, and no payments over pursuant to
the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Notes or the Trustee shall,
as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Notes, be deemed
to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
122
If any payment or distribution to which the
Holders would otherwise have been entitled but for the
provisions of this Article Eleven shall have been applied,
pursuant to the provisions of this Article Eleven, to the
payment of all amounts payable under the Senior Indebtedness
of the Company, then and in such case the Holders shall be
entitled to receive from the holders of such Senior Indebt-
edness at the time outstanding any payments or distributions
received by such holders of such Senior Indebtedness in
excess of the amount sufficient to pay all amounts payable
under or in respect of such Senior Indebtedness in full in
cash or cash equivalents.
Section 11.06. Provisions Solely to Define Rela-
tive Rights. The provisions of this Article Eleven are and
are intended solely for the purpose of defining the relative
rights of the Holders of the Notes on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing
contained in this Article Eleven or elsewhere in this Inden-
ture or in the Notes is intended to or shall (a) impair, as
among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Notes, the obli-
gation of the Company, which is absolute and unconditional,
to pay to the Holders of the Notes the principal of, pre-
mium, if any, and interest on the Notes as and when the same
shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company of the
Holders of the Notes and creditors of the Company other than
the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Note from exercising all reme-
dies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the
rights, if any, under this Article Eleven of the holders of
Senior Indebtedness (1) in any case, proceeding, dis-
solution, liquidation or other winding up, assignment for
the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 11.02, to
receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliv-
erable to the Trustee or such Holder, or (2) under the
conditions specified in Section 11.03, to prevent any pay-
ment prohibited by such Section or enforce their rights
pursuant to Section 11.03(c).
The failure to make a payment on account of any
Senior Subordinated Note Obligations by reason of any pro-
vision of this Article Eleven shall not be construed as
preventing the occurrence of a Default or an Event of
Default hereunder.
123
Section 11.07. Trustee to Effectuate Sub-
ordination. Each Holder of a Note by his acceptance thereof
authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate
the subordination provided in this Article Eleven and
appoints the Trustee his attorney-in-fact for any and all
such purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of the Company
whether in bankruptcy, insolvency, receivership proceedings,
or otherwise, the timely filing of a claim for the unpaid
balance of the Indebtedness of the Company owing to such
Holder in the form required in such proceedings and the
causing of such claim to be approved. If the Trustee does
not file such a claim prior to 30 days before the expiration
of the time to file such a claim, the holders of Senior
Indebtedness, or any Senior Representative, may file such a
claim on behalf of Holders of the Notes.
Section 11.08. No Waiver of Subordination Pro-
visions. (a) No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without limiting the generality of subsection
(a) of this Section 11.08, the holders of Senior Indebt-
edness may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of
the Notes and without impairing or releasing the sub-
ordination provided in this Article Eleven or the obli-
gations hereunder of the Holders of the Notes to the holders
of Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Indebt-
edness or any instrument evidencing the same or any agree-
ment under which Senior Indebtedness is outstanding;
(2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner
for the collection or payment of Senior Indebtedness; and
(4) exercise or refrain from exercising any rights against
the Company and any other Person; provided that in no event
shall any such actions limit the right of the Holders of the
124
Notes to take any action to accelerate the maturity of the
Notes pursuant to Article Six hereof or to pursue any rights
or remedies hereunder or under applicable laws if the taking
of such action does not otherwise violate the terms of this
Indenture.
Section 11.09. Notice to Trustee. (a) 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
Notes. Notwithstanding the provisions of this Article
Eleven 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 Notes, unless and until the
Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to
the provisions of this Section 11.09, shall be entitled in
all respects to assume that no such facts exist; provided
that if the Trustee shall not have received the notice
provided for in this Section 11.09 at least two Business
Days prior to the date upon which by the terms hereof any
money may become payable for any purpose under this Inden-
ture (including, without limitation, the payment of the
principal of or interest on any Note), then, anything herein
contained to the contrary notwithstanding but without limit-
ing the rights and remedies of the holders of Senior Indebt-
edness or any trustee, fiduciary or agent thereof, 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; nor shall the Trustee be
charged with knowledge of the curing of any such default or
the elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an
Officers' Certificate to such effect.
(b) Subject to the provisions of Section 7.01,
the Trustee shall be entitled to rely on the delivery to it
of a written notice to the Trustee by a Person representing
himself to be a holder of Senior Indebtedness (or a
representative, trustee, fiduciary or agent therefor) to
establish that such notice has been given by a holder of
Senior Indebtedness (or a representative, trustee, fiduciary
or agent therefor). In the event that the Trustee deter-
mines in good faith that further evidence is required with
125
respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution
pursuant to this Article Eleven, the Trustee may request
such Person to furnish evidence to the reasonable satis-
faction of the Trustee as to the amount of Senior Indebted-
ness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under
this Article Eleven, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to
receive such payment.
Section 11.10. Reliance on Judicial Order or
Certificate of Liquidating Agent. Upon any payment or
distribution of assets of the Company referred to in this
Article Eleven, the Trustee, subject to the provisions of
Section 7.01, and the Holders, shall be entitled to rely
upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receiv-
ership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered
to the Trustee or to the Holders, for the purpose of ascer-
taining the Persons entitled to participate in such payment
or distribution, the holders of Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article; provided that the foregoing shall apply only if
such court has been fully apprised of the provisions of this
Article Eleven. The Trustee is not responsible for
determining whether or not the court has been fully apprised
of the provisions of this Article Eleven.
Section 11.11. Rights of Trustee as a 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 Eleven 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 Indebt-
edness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in
this Article Eleven shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.08.
126
Section 11.12. 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
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 Eleven in
addition to or in place of the Trustee; provided that Sec-
tion 11.11 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent.
Section 11.13. No Suspension of Remedies. Noth-
ing contained in this Article Eleven shall limit the right
of the Trustee or the Holders of Notes to take any action to
accelerate the maturity of the Notes pursuant to Article Six
or to pursue any rights or remedies hereunder or under
applicable law, subject to the rights, if any, under this
Article Eleven of the holders, from time to time, of Senior
Indebtedness.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Trust Indenture Act of 1939. This
Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the
extent applicable, be governed by such provisions.
If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or
excluded, as the case may be.
Section 12.02. Notices. Any notice or com-
munication shall be sufficiently given if in writing and
delivered in person or mailed by first class mail, postage
prepaid, addressed as follows:
127
If to the Company or any Note Guarantor to:
Xxxxxxx-Xxxxxx, Inc.
Xx Xxxxxxxxx
X.X. Xxx XX-000
XX-0000
Xxxxxxxxxx, Xxxxxxxxxxx
Attention: Chief Executive Officer
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
If to the Trustee to:
United States Trust Company of
New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
The parties hereto by notice to the other parties
may designate additional or different addresses for sub-
sequent notices or communications.
Any notice or communication mailed, postage pre-
paid, to a Holder, including any notice delivered in con
nection with TIA Section 310(b), TIA Section 313(c), TIA
Section 314(a) and TIA Section 315(b), shall be mailed by
first class mail to such Holder at the address of such
Holder as it appears on the Notes register maintained by the
Registrar and shall be sufficiently given to such Holder if
so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to
the Trustee.
Failure to mail a notice or communication to a
Noteholder or any defect in it shall not affect its suf-
ficiency with respect to other Holders. Except for a notice
to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee
receives it.
Section 12.03. Communication by Holders with
Other Holders. Holders may communicate pursuant to TIA
128
Section 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to
Conditions Precedent. Upon any request or application by
the Company to the Trustee to take or refrain from taking
any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate in form and
substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel in form and substance
satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent
have been complied with.
Section 12.05. Statements Required in Certificate
or Opinion. Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the Person making such cer-
tificate or opinion has read such covenant or con-
dition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of such
Person, he has made such examination or investigation
as is reasonably necessary to enable him to express an
informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has
been complied with; provided that with respect to
matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public offi-
cials.
129
Section 12.06. Rules by Trustee, Paying Agent,
Registrar. The Trustee may make reasonable rules for action
by or at a meeting of Noteholders. The Paying Agent or
Registrar may make reasonable rules for its functions.
Section 12.07. Legal Holiday. "Legal Holiday" is
a Saturday, a Sunday or a day on which banking institutions
are not required to be open in the State of New York. If a
payment date is a Legal Holiday, payment shall be made on
the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date
shall not be affected.
Section 12.08. Governing Law. THIS INDENTURE AND
THE NOTES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
Section 12.09. No Recourse Against Others. No
director, officer, employee, incorporator or stockholder, as
such, of the Company, Holding, any Note Guarantor or any
Subsidiary of the foregoing shall have any liability for any
obligations of the Company under the Notes or this Indenture
or of a Note Guarantor under any Note Guarantee or for any
claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability.
Section 12.10. Successors. All agreements of the
Company and Holding in this Indenture, the Notes and the
Note Guarantee of Holding shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its
successors.
Section 12.11. Multiple Originals. The parties
may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all such executed
copies together represent the same agreement. One signed
copy is enough to prove this Indenture.
Section 12.12. Separability. In case any pro-
vision in this Indenture, the Notes or any Note Guarantee
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 12.13. Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of
130
the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 12.14. Benefits of Indenture. Nothing in
this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their
successors hereunder, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Inden-
ture except to holders of Senior Indebtedness and Guarantor
Senior Indebtedness.
131
This Indenture may be signed in any number of
counterparts with the same effect as if the signatures to
each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year
first above written.
MT ACQUISITION CORP.
By:___________________________________
Name:
Title:
XXXXXXX-XXXXXX HOLDING INC.
By:___________________________________
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:___________________________________
Name:
Title:
132
SCHEDULE 1
Existing Liens
[to come]
EXHIBIT A
MT ACQUISITION CORP.
(to be assumed by Xxxxxxx-Xxxxxx, Inc.)
% Senior Subordinated Note due 2006
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE
COMPANY OR THEIR AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
CUSIP No.
No. $115,000,000
MT ACQUISITION CORP., a corporation incorporated
under the laws of the State of Delaware (herein called the
"Company," which term includes any successor corporation
under this Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or
registered assigns, the principal sum of $115,000,000 on
, 2006, at the office or agency of the Company
referred to below, and to pay interest thereon on
and , in each year, commencing on ,
1996, accruing from , 1996 or from the most recent
Interest Payment Date to which interest has been paid or
duly provided for, at the rate of % per annum, until the
principal hereof is paid or duly provided for. Interest
shall be computed on the basis of a 360-day year comprised
of twelve 30-day months.
The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as
provided in this Indenture referred to on the reverse
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hereof, be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which
shall be or (whether or not a Business
Day), as the case may be, next preceding such Interest
Payment Date (each a "Regular Record Date"). Any such
interest not so punctually paid, or duly provided for, and
interest on such defaulted interest at the rate borne by the
Notes, to the extent lawful, shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may
be paid to the Person in whose name this Note (or one or
more Predecessor Notes) is registered at the close of
business on a special record date for the payment of such
defaulted interest to be fixed by the Trustee, notice of
which shall be given to Holders of Notes not less than 10
days prior to such special record date, or may be paid at
any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in such
Indenture.
Payment of the principal of and interest on this
Note will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan in
The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and
private debts; provided that payment of interest may be made
at the option of the Company by check mailed to the address
of the Person entitled thereto as such address shall appear
on the Note register maintained by the Registrar.
Reference is hereby made to the further provisions
of this Note set forth on the reverse hereof.
Unless the certificate of authentication hereon
has been duly executed by the Trustee referred to on the
reverse hereof by manual signature, and a seal has been
affixed hereon, this Note shall not be entitled to any
benefit under this Indenture, or be valid or obligatory for
any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: October , 1996 MT ACQUISITION CORP.
By:___________________________________
Name:
Title:
[SEAL]
By:___________________________________
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the
within-mentioned Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:___________________________________
Authorized Signatory
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(Reverse of Note)
1. Indenture. This Note is one of a duly autho-
rized issue of Notes of the Company designated as its %
Senior Subordinated Notes due 2006, limited (except as
otherwise provided in this Indenture referred to below) in
aggregate principal amount to $115,000,000, which may be
issued under an indenture (herein called the "Indenture")
dated as of October , 1996, between MT Acquisition Corp.,
a Delaware corporation, as issuer (together with its
successors, the "Company"), Xxxxxxx-Xxxxxx Holding Inc., a
Delaware corporation, as a Note Guarantor and United States
Trust Company of New York, as trustee (the "Trustee," which
term includes any successor Trustee under this Indenture),
to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and
immunities thereunder of the Company, any Note Guarantor,
the Trustee and the Holders of the Notes, and of the terms
upon which the Notes are, and are to be, authenticated and
delivered.
All terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
No reference herein to the Indenture and no pro-
visions of this Note or of this Indenture shall alter or
impair the absolute or unconditional obligation of the
Company and any Note Guarantor to pay the principal of,
premium, if any and interest on this Note at the times,
place, and rate, and in the coin or currency, herein
prescribed.
2. Note Guarantees. This Note is entitled to a
certain senior subordinated Note Guarantee made for the
benefit of the Holders. Reference is hereby made to Article
Ten of this Indenture for terms relating to the Note
Guarantee.
3. Subordination. The Indebtedness evidenced by
the Notes is, to the extent and in the manner provided in
this Indenture, subordinate and subject in right of payment
to the prior payment in full in cash or cash equivalents of
all Senior Indebtedness and Guarantor Senior Indebtedness,
as defined in this Indenture, and this Note is issued
subject to such provisions. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such
A-5
provisions, (b) authorizes and directs the Trustee, on
behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as
provided in this Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided
that the Indebtedness evidenced by this Note shall cease to
be so subordinate and subject in right of payment upon any
defeasance of this Note referred to in Paragraph 8 below.
4. Redemption.
(a) Optional Redemption. The Notes are subject
to redemption, at the option of the Company, as a whole or
in part, in principal amounts of $1,000 or any integral
multiple of $1,000, at any time on or after , 2001
upon not less than 30 nor more than 60 days' prior notice at
the following Redemption Prices (expressed as percentages of
the principal amount) if redeemed during the 12-month period
beginning on of the years indicated below:
Redemption
Year Price
-------------------------------------- ------------------------------
2001............................................................................. %
2002............................................................................. %
2003............................................................................. %
2004 and thereafter.............................................................. 100%
plus accrued and unpaid interest, if any, to the Redemption
Date, all as provided in this Indenture.
(b) Optional Redemption Upon Public Equity Offer-
ing. In addition, at any time and from time to time on or
prior to , 1999, the Company may redeem in the
aggregate up to $40,000,000 of the original amount of the
Notes with the proceeds of one or more Public Equity
Offerings, in each case which yields gross proceeds to the
Company (before discounts, commissions and expenses) of at
least $65,000,000 and following which there is a Public
Market, at a redemption price equal to __% of the principal
amount thereof plus accrued and unpaid interest, if any, to
the Redemption Date; provided that not less than $75,000,000
in aggregate principal amount of Notes must remain
outstanding following such redemption. In order to effect
the foregoing redemption with the proceeds of a Public
Equity Offering, the redemption must be made within 60 days
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of the date of the consummation of any such Public Equity
Offering.
(c) Interest Payments. In the case of any
redemption of Notes, interest installments whose Stated
Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Notes, or one or more Pre-
decessor Notes, of record at the close of business on the
relevant Record Date referred to on the face hereof. Notes
(or portions thereof) for whose redemption and payment
provision is made in accordance with this Indenture shall
cease to bear interest from and after the Redemption Date.
(d) Partial Redemption. In the event of redemp-
tion of this Note in part only, a new Note or Notes for the
unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
5. Offers to Purchase. Sections 4.18 and 4.19 of
the Indenture provide that following any Asset Sale and,
upon the occurrence of a Change of Control, and subject to
further limitations contained therein, the Company shall
make an offer to purchase certain amounts of the Notes in
accordance with the procedures set forth in this Indenture.
6. Defaults and Remedies. If an Event of Default
shall occur and be continuing, the principal of all of the
outstanding Notes, plus all accrued and unpaid interest, if
any, to and including the date the Notes are paid, may be
declared due and payable in the manner and with the effect
provided in this Indenture.
7. Defeasance. The Indenture contains provisions
(which provisions apply to this Note) for defeasance at any
time of (a) the entire indebtedness on this Note and (b)
certain restrictive covenants and related Defaults and
Events of Default, in each case upon compliance by the
Company with certain conditions set forth therein.
8. Amendments and Waivers. The Indenture per-
mits, 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
under this Indenture at any time by the Company, any Note
Guarantor and the Trustee with the consent of the Holders of
not less than a majority in aggregate principal amount of
the Notes at the time outstanding. The Indenture also
contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at
A-7
the time outstanding, on behalf of the Holders of all the
Notes, to waive compliance by the Company and any Note
Guarantor with certain provisions of this Indenture and
certain past Defaults under this Indenture and this Note and
their consequences. Any such consent or waiver by or on
behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made
upon this Note.
9. Denominations, Transfer and Exchange. The
Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple there-
of. As provided in this Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable
for a like aggregate principal amount of Notes of a dif-
ferent authorized denomination, as requested by the Holder
surrendering the same.
As provided in this Indenture and subject to cer-
tain limitations therein set forth, the transfer of this
Note is registrable on the Note register of the Company,
upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for such
purpose in the Borough of Manhattan in The City of New York
or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accom-
panied by a written instrument of transfer in form satis-
factory to the Company and the Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writ-
ing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No service charge shall be made for any regis-
tration of transfer or exchange or redemption of Notes, but
the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection
therewith.
10. Persons Deemed Owners. Prior to and at the
time of due presentment of this Note 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 Note is registered as the owner hereof for all pur-
poses, whether or not this Note shall be overdue, and
A-8
neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
11. Governing Law. THIS NOTE SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
12. Selection and Notice. In the event that less
than all of the Notes are to be redeemed at any time, selec-
tion of such Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are
listed or, if the Notes are not then listed on a national
securities exchange, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate;
provided that no Notes of an original principal amount of
$1,000 or less shall be redeemed in part. Notice of redemp-
tion shall be mailed by first-class mail at least 30 but not
more than 60 days before the redemption date to each Holder
of Notes to be redeemed at its registered address. If any
Note is to be redeemed in part only, the notice of redemp-
tion that relates to such Note shall state the portion of
the principal amount thereof to be redeemed. A new Note in
a principal amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof upon sur-
render for cancellation of the original Note. On and after
the redemption date, interest will cease to accrue on Notes
or portions thereof called for redemption and accepted for
payment.
13. Abbreviations. The following abbreviations,
when used in the inscription on the face of this Note, shall be
construed as though they were written out in full according to
applicable laws or regulations:
(i) TEN COM - as tenants in common;
(ii) TEN ENT - as tenants by the entireties;
(iii) JT TEN - as joint tenants with right of
survivorship and not as tenants in common;
(iv) UNIF GIFT MIN ACT - Custodian
------- -------
(Cust.) (Minor)
Under Uniform Gifts to Minors Act
-----------------
(State)
Additional abbreviations may also be used though not in the above list.
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the
Company pursuant to Section 4.18 or 4.19 of the Indenture,
check the appropriate box:
Section 4.18 [ ]
Section 4.19 [ ]
If you wish to have a portion of this Note pur-
chased by the Company pursuant to Section 4.18 or 4.19 of
the Indenture, state the amount:
$______________
Date: __________________ Your Signature: _________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ______________________
A-10
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
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and
irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company.
The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: __________________ Your Signature: _________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:______________________________
A-11
SENIOR SUBORDINATED NOTE GUARANTEE
For value received, the undersigned hereby
absolutely, unconditionally and irrevocably guarantees, as a
primary obligor and not merely as a surety, to the Holder of
this Note the payments of principal of, premium, if any, and
interest on this Note as set forth in Article Ten of the
Indenture. This Note Guarantee is subject to release upon
the terms set forth in the Indenture.
XXXXXXX-XXXXXX HOLDING INC.
By:_______________________________
Name:
Title:
A-12
EXHIBIT B
FORM OF FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of October
, 1996 (this "Supplemental Indenture"), among XXXXXXX-
XXXXXX, INC., a corporation incorporated under the laws of
the State of Delaware (the "Company"), XXXXXXX-XXXXXX
HOLDING INC., a corporation incorporated under the laws of
the State of Delaware (the "Note Guarantor"), and UNITED
STATES TRUST COMPANY OF NEW YORK, as trustee under the
indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS the corporation formerly named MT
Acquisition Corp. ("MT Acquisition"), the Note Guarantor and
the Trustee have heretofore executed and delivered an
indenture, dated as of the date hereof (as amended, the
"Indenture"), providing for the issuance of an aggregate
principal amount of $115,000,000 of % Senior Subordinated
Notes due 2006 of the Company (the "Notes");
WHEREAS immediately after the execution of the
Indenture and the issuance of the Notes, MT Acquisition was
merged with and into the Company in the Merger, with the
Company as the surviving corporation; and
WHEREAS, pursuant to Sections 5.01 and 9.01 of the
Indenture, the Company, the Note Guarantor and the Trustee
are authorized to execute and deliver this Supplemental
Indenture;
NOW, THEREFORE, each party hereto agrees as
follows for the benefit of each other party and for the
equal and ratable benefit of the Holders of the Notes as
follows:
1. Definitions. Capitalized terms used herein
without definition shall have the meanings assigned to them
in the Indenture. For all purposes of this Supplemental
Indenture, except as otherwise expressly provided or unless
the context otherwise requires: (i) the terms and
expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture;
and (ii) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Supplemental
Indenture as a whole and not to any particular section or
other subdivision hereof.
B-1
2. Express Assumption. The Company hereby
acknowledges and agrees that as a result of it being the
surviving corporation in the Merger with MT Acquisition it
has succeeded to all the obligations of MT Acquisition under
the Notes and the Indenture. The Company hereby expressly
assumes all the obligations of MT Acquisition under the
Notes and the Indenture.
3. Ratification of Indenture; Supplemental
Indenture Part of Indenture. Except as expressly amended
hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of the Indenture
for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE
AND THE NOTES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.
5. Trustee Makes No Representation. The Trustee
makes no representation as to the validity or sufficiency of
this Supplemental Indenture.
6. Multiple Originals. The parties may sign any
number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all such executed
copies together represent the same agreement. One signed
copy is enough to prove this Indenture.
7. Effect of Headings. The Section headings of
this Supplemental Indenture have been inserted for
convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of
the terms or provisions thereof.
B-2
This Supplemental Indenture may be signed in any
number of counterparts with the same effect as if the
signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be
deemed an original of this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed as of the
day and year first above written.
XXXXXXX-XXXXXX, INC.
By:_______________________________
Name:
Title:
XXXXXXX-XXXXXX HOLDING INC.
By:_______________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee,
By:_______________________________
Name:
Title:
B-3
