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XXXXXXX-XXXXXX, INC.
(successor by merger to MT Acquisition Corp.), as Issuer
and
XXXXXXX-XXXXXX HOLDING INC.,
as Note Guarantor
9 3/4% Senior Subordinated Notes due 2006
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SECOND SUPPLEMENTAL INDENTURE
Dated as of October 16, 1997
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UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
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Supplementing the Indenture dated as of October 15, 1996,
as supplemented and amended by the
First Supplemental Indenture dated as of October 15, 1996
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental
Indenture"), dated as of October 16, 1997, by and among XXXXXXX-XXXXXX, INC.
(successor by merger to MT Acquisition Corp.), as Issuer, XXXXXXX-XXXXXX HOLDING
INC., as Note Guarantor, and UNITED STATES TRUST COMPANY OF NEW YORK, a New York
banking corporation (the "Trustee").
WITNESSETH:
WHEREAS, the Issuer, the Note Guarantor and the Trustee have
entered into an Indenture dated as of October 15, 1996, as supplemented and
amended by a First Supplemental Indenture dated as of October 15, 1996 (as so
supplemented and amended, the "Indenture"), pursuant to which Indenture the
Issuer has issued and the Note Guarantor has guaranteed certain 9 3/4% Senior
Subordinated Notes due 2006 (the "Securities"); and
WHEREAS, the Issuer and the Note Guarantor desire to execute
and deliver this Second Supplemental Indenture in accordance with the provisions
of the Indenture for purposes of eliminating certain covenants of the Issuer,
modifying the provision restricting mergers and asset transfers by the Issuers,
modifying the events of default provision and making certain conforming and
other changes; and
WHEREAS, the execution and delivery of this Second
Supplemental Indenture by the Issuer and the Note Guarantor have been duly
authorized by the Issuer and the Note Guarantor; and
WHEREAS, the execution and delivery of this Second
Supplemental Indenture by the Issuer, the Note Guarantor and the Trustee have
been consented to by the Holders of a majority in principal amount of the
Securities in accordance with Section 9.02 of the Indenture; and
WHEREAS, all the conditions and requirements necessary to make
this Second Supplemental Indenture, when duly executed and delivered, a valid
and binding agreement of the Issuer and the Note Guarantor in accordance with
its terms and for the purposes herein expressed, have been performed and
fulfilled.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants contained herein and in the Indenture and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Issuer, the Note Guarantor and the Trustee hereby agree as
follows:
ARTICLE ONE
DEFINITIONS AND EFFECT
Section 1.01 Incorporation of Previous Documents. Unless
otherwise expressly provided, the provisions of the Indenture are incorporated
herein by reference.
Section 1.02 Definitions. Capitalized terms which are used but
not defined herein shall have the meanings ascribed to such terms in the
Indenture.
Section 1.03 Effect of Second Supplemental Indenture. From and
after the execution and delivery of this Second Supplemental Indenture, the
Indenture shall be deemed to be modified as herein provided, but except as
modified hereby, the Indenture shall continue in full force and effect. The
Indenture as modified hereby shall be read, taken and construed as one and the
same instrument.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 2.01 Effectiveness. This Second Supplemental Indenture
shall take effect immediately upon its execution and delivery by the Trustee and
the Issuers in accordance with the provisions of Article 9 of the Indenture;
provided, however, that the provisions of Sections 2.02, 2.03, and 2.04 of this
Second Supplemental Indenture shall not become effective unless and until the
Issuer delivers an Officer's Certificate to the Trustee substantially in the
form attached hereto as Exhibit A (the "Condition"). Simultaneously with
satisfaction of the Condition, without any further action whatsoever, the
provisions of Section 2.02, 2.03 and 2.04 of this Second Supplemental Indenture
shall become effective for all purposes.
Section 2.02 Amendments to Article 4 of the Indenture. Article
4 of the Indenture is amended by deleting Sections 4.03, 4.04, 4.05, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 in their entirety
and replacing such Sections respectively, with the following:
"Section 4.03 Corporate Existence
[intentionally omitted]";
"Section 4.04 Payment of Taxes and Other Claims.
[intentionally omitted]";
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"Section 4.05 Maintenance of Properties.
[intentionally omitted]";
"Section 4.08 Limitation on Indebtedness.
[intentionally omitted]";
"Section 4.09 Limitation on Restricted Payments
[intentionally omitted]";
"Section 4.10 Limitation on Transactions with
Affiliates
[intentionally omitted]";
"Section 4.11 Limitation on Certain Liens
[intentionally omitted]";
"Section 4.12 Limitation on Certain Guarantees.
[intentionally omitted]";
"Section 4.13 Certain Future Note Guarantors.
[intentionally omitted]";
"Section 4.15 Limitation on the Sale or Issuance
of Preferred Stock of Restricted Subsidiaries.
[intentionally omitted]";
"Section 4.16 Limitation on Dividend and Other
Payment Restrictions Affecting Restricted Subsidiaries.
[intentionally omitted]";
"Section 4.17 Restriction on Transfer of Assets
to Subsidiaries.
[intentionally omitted]";
"Section 4.18 Limitation on Disposition of
Proceeds of Asset Sales.
[intentionally omitted]";
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"Section 4.19 Change of Control.
[intentionally omitted]"; and
"Section 4.20 Reporting Requirements.
[intentionally omitted]".
Section 2.03 Amendments to Article 5 of the Indenture. Section
5.01 of the Indenture is amended by deleting clause (a)(ii)(y) in its entirety
and replacing such clause with the following:
"(y) [intentionally omitted]".
Section 2.04 Amendments to Article 6 of the Indenture. Section
6.01 of the Indenture is amended by deleting clauses (iii), (v), (vi) and (vii)
in their entirety and replacing such clauses with the following.
"(iii) [intentionally omitted]";
"(v) [intentionally omitted]";
"(vi) [intentionally omitted]"; and
"(vii) [intentionally omitted]".
ARTICLE THREE
THE TRUSTEE
Section 3.01 Acceptance by Trustee. The Trustee hereby accepts
the amendments to the Indenture effected by this Second Supplemental Indenture
and agrees to execute the trusts created by the Indenture as hereby amended, but
only upon the terms and conditions in the Indenture and in this Second
Supplemental Indenture. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture, for the due execution hereof by the Issuer and the Note
Guarantor or for or in respect of the recitals contained herein, all of which
recitals are made by the Issuer and the Note Guarantor solely.
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ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 4.01 Further Assurances. The parties hereto will
execute and deliver such further instruments and do such further acts and things
as may be reasonably required to carry out the intent and purpose of this Second
Supplemental Indenture and the Indenture.
Section 4.02 Governing Law. This Second Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York (regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws) as to all matters, including, without
limitation, matters of validity, construction, effect, performance and remedies.
Section 4.03 Counterparts. This Second Supplemental Indenture
may be executed in any number of counterparts, each of which, when so executed
and delivered, shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 4.04 Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
Section 4.05 Successors and Assigns. All covenants and
agreements of the Issuer and the Note Guarantor in this Second Supplemental
Indenture shall bind each of the Issuer's and the Note Guarantor's respective
successors and assigns, whether so expressed or not. All covenants and
agreements of the Trustee in this Second Supplemental Indenture shall bind its
successor and assigns, whether so expressed or not.
Section 4.06 Severability Clause. In case any provision of
this Second Supplemental Indenture should 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 4.07 Conflict with Trust Indenture Act. If any
provision of this Second Supplemental Indenture limits, qualifies or conflicts
with a provision of the Trust Indenture Act of 1939, as amended (the "TIA") that
is required under the TIA to be a part of and govern this Second Supplemental
Indenture, the latter provision shall control. If any provision of this Second
Supplemental Indenture modifies or excludes any provisions of the TIA that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Second Supplemental Indenture as so modified or to be excluded, as the case
may be.
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IN WITNESS WHEREOF, each of the Issuer, the Note Guarantor and
the Trustee has caused this Second Supplemental Indenture to be executed on its
behalf by its duly authorized officer, all as of the day and year first above
written.
XXXXXXX-XXXXXX, INC.
(successor by merger to
MT Acquisition Corp.)
By: /s/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
XXXXXXX-XXXXXX HOLDING INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title:Chief Financial Officer
UNITED STATES TRUST COMPANY
Of New York, as Trustee
By: /s/ Xxxxxxxx Xxxxxxx
____________________________
Name: Xxxxxxxx Xxxxxxx
Title:Assistant Vice President
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