EXHIBIT 4.1
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MT Acquisition Corp., as Issuer
and
Mettler-Toledo Holding Inc., as Note Guarantor,
and
United States Trust Company of New York, as Trustee
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INDENTURE
Dated as of October 15, 1996
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$135,000,000
9 3/4% Senior Subordinated Notes due 2006
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TABLE OF CONTENTS
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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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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; Notice of Default.................. 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
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.................................... 83
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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............................... 89
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.............................. 93
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......................... 95
Section 8.03. Application of Trust Money................................. 99
Section 8.04. Repayment to Company or Note Guarantors.................... 99
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
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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................................. 108
Section 10.04. Note Guarantee Obligations Subordinated to
Guarantor Senior Indebtedness.............................. 108
Section 10.05. Payment Over of Proceeds upon Dissolution,
etc. ...................................................... 109
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 10.11. No Waiver of Subordination Provisions...................... 114
Section 10.12. Notice to Trustee.......................................... 115
Section 10.13. Reliance on Judicial Order or Certificate of
Liquidating Agent Regarding Dissolution, etc. ............. 116
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
Section 10.16. No Suspension of Remedies.................................. 117
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
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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 11.08. No Waiver of Subordination Provisions..................... 124
Section 11.09. Notice to Trustee......................................... 125
Section 11.10. Reliance 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............ 127
Section 11.12. Article Applicable to Paying Agents....................... 127
Section 11.13. No Suspension of Remedies................................. 127
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Trust Indenture Act of 1939............................... 127
Section 12.02. Notices................................................... 128
Section 12.03. Communication by Holders with Other Holders............... 129
Section 12.04. Certificate and Opinion as to Conditions
Precedent................................................. 129
Section 12.05. Statements Required in Certificate or Opinion............. 129
Section 12.06. Rules by Trustee, Paying Agent, Registrar................. 130
Section 12.07. Legal Holiday............................................. 130
Section 12.08. Governing Law............................................. 130
Section 12.09. No Recourse Against Others................................ 130
Section 12.10. Successors................................................ 130
Section 12.11. Multiple Originals........................................ 130
Section 12.12. Separability.............................................. 131
Section 12.13. Table of Contents, Headings, etc. ........................ 131
Section 12.14. Benefits of Indenture..................................... 131
SIGNATURES................................................................ 132
SCHEDULE 1 Existing Liens
SCHEDULE 2 Existing Indebtedness
EXHIBIT A Form of Note
EXHIBIT B Form of First Supplemental Indenture
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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
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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
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
INDENTURE, dated as of October 15, 1996, between MT ACQUISITION
CORP., a corporation incorporated under the laws of the State of Delaware
(together with its successors, the "Company"), as issuer, METTLER-TOLEDO 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
9 3/4% 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 fur Prazisioninstrumente, 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
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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 designated
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
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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 Moody's 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 Moody's 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,
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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 Mettler-Toledo, 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
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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
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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
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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
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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 Mettler-Toledo 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 114 West 47th Street, New
York, New York 10036, 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, Merrill Lynch
Capital Corporation, as agent and arranger, The Bank of Nova Scotia, as
administrative agent, Credit Suisse and Lehman 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
13
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 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 Title 11,
United States 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,
14
rely upon an Officers' Certificate of such Note Guarantor) 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 Mettler-Toledo 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
15
Debt of such Person, (e) all Indebtedness referred to in the 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
16
Company or such Restricted Subsidiary had directly incurred or otherwise assumed
such Guaranteed Indebtedness.
"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.
17
"Issue Date" means the date on which the Notes are originally
issued.
"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
Mettler-Toledo, Inc. immediately upon consummation of the Acquisition.
"Moody's" means Moody's 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
18
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 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.
19
"Offer Period" has the meaning set forth in Section 4.18(c).
"Officer" means the Chairman of the Board, Chief Executive Officer,
Chief Financial Officer (or Head, Finance and Control), 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 Section 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,
20
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 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.
21
"Permitted Junior Securities" means, (i) for purposes of Article
Eleven (so long as the effect of any 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 Indebtedness 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 reorganization 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 readjustment, 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
22
the foregoing clauses (i) through (vi), provided that any such extension,
renewal or replacement shall be no more 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 particular 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
23
be confined solely to such property, (ii) at no time shall the aggregate
principal amount of the Indebtedness secured 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.
24
"Related Currency and Interest Rate Protection Obligations" means
all monetary obligations of every nature 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
25
outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Notes. Without 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. Notwithstanding 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 Title 11, United States 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,
26
rely upon an Officers' Certificate of the Company) 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 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
27
Regulation S-X under the Securities Act and the Exchange Act, as such Rule is in
effect on the Issue Date, provided 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
28
or any Note Guarantee or (ii) Indebtedness of any Restricted Subsidiary (other
than a Note Guarantor) that is 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 Mettler-Toledo 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
29
any Capital Stock of, or owns, or holds any Lien on, any property of the Company
or any other Subsidiary of the 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
30
interest in such obligations) of the United States of America (including any
agency or instrumentality thereof) for the payment of which the full faith and
credit of the United States of America is pledged and which are not callable or
redeemable at the issuer's option.
"U.S. 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 provision 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 meanings:
"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 Indenture 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 identification 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 conclusive 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 $135,000,000 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 $135,000,000, 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 authentication 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 benefit of the Holders or the Trustee all money
held by the Paying Agent for the payment of principal of, premium, if any, 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 or a nominee thereof,
as the case may be, 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 wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, such Holder must provide an indemnity
bond or other indemnity, sufficient in the judgment of both the Company and the
Trustee, to protect the Company, the Trustee or any Agent
38
from any loss which any of them may suffer if a Note is 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 outstanding 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 outstanding 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 sufficient to pay all of the principal, premium, if any, 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 Indenture, 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-
39
itive Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary 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 delivered 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 represented by such Notes unless
and until the same are surrendered 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 generally in use), and if so, the Trustee may use the
CUSIP numbers in notices of redemption or exchange as a convenience 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 immediately available funds money sufficient to make cash payments,
if any, due on such Interest Payment Date or Maturity Date, as the case may be,
in a timely manner which permits the Paying Agent to remit payment to the
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 Officers' Certificate,
stating that such redemption will comply with the provisions hereof and of the
Notes, of any redemption 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 redemption 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 Noteholder;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption 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 paragraph, 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, premium, if any, 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 location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the 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 rescission shall in any
manner relieve the Company of its obligation 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 114 West 47th Street, New York, New York 10036, 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; Notice of Default. (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, premium, if any, 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 and listed on Schedule 2 to this Indenture
(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 Subordinated 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.
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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
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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
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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 Indebteness 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
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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
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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.
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(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 and Holding agree, 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 Mettler-Toledo,
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 Mettler-Toledo,
76
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
77
(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
78
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, state or foreign 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
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of a decree or order for relief in respect of the 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
immediately, 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
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declaration or other act on the part of the Trustees or any Holder.
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
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compensation, expenses, disbursements, and advances of the Trustee,
its agents and counsel,
(ii) all overdue interest on all Notes,
(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 collect 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 Indenture 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.
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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 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
determines 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 satisfactory to it in its sole discretion against any loss or
expense caused by its following such direction; and provided, 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;
83
(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 outstanding 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 Payment. Notwithstanding
any other provision in this Indenture, 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, premium, if any, 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
84
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 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, arrangement, 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 collects 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 preference 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 Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court may in its discretion
85
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to any suit by the
Trustee, any suit by a Holder pursuant to Section 6.07, or a suit by Holders of
more than 10% in aggregate principal amount of the outstanding 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 determined 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
86
furnished to the Trustee and conforming to the requirements 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.
(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-
87
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 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 authorization 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 counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion 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.
88
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 otherwise 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.
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).
89
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.
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 services in connection
with an Event of Default specified in
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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.
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
91
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 Indenture. A successor
Trustee shall mail notice of its succession to each Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, 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 pursuant 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.
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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 publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign imme diately in the manner and with the effect
hereinafter specified 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 Obligations. 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
93
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 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.
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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 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 paragraph (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)
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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 paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations 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,
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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
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 Obligations 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 defeasance 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 subject to Federal income tax on the same
amounts, in the
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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 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
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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,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to 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
99
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 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;
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(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;
(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.
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Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment, 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;
(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 aggregate 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 principal 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;
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(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.
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
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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, 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 Section 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 appropriate 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
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satisfactory to it and to receive, and shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel, each stating that the
execution of any amendment, 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 accordance with its terms.
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
105
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 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 reorganization, 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
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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 preference," "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 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
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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 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 equivalents 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
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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
(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 Indebtedness 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 instruments evidencing any of such Guarantor
Senior Indebtedness 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
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effect to any concurrent payment or distribution to the holders of such
Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing 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 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 equivalents, 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 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
Article 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, assume
the Note Guarantee of Holding.
Section 10.06. Suspension of Note Guarantee Obligations 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
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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.
(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 foregoing, the Trustee
or the Holder of any Note shall have received any payment from Holding
prohibited by the foregoing provisions of this Section 10.06, then and in such
event such payment shall be paid over and delivered forthwith 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
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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 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 from and relieved of its
obligations under its Note Guarantee in accordance with the terms thereof, as
provided in Section 4.12 or 4.13, or upon payment in full of all Senior
Subordinated Note Obligations, subject to the terms thereof which in such
respect shall be substantially the same as set forth in the foregoing paragraph
(a) with respect to the Note Guarantee of Holding.
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 Indebtedness of Holding and, to the
extent set forth in Section
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10.06, holders of Designated Senior Indebtedness on the other hand. Nothing
contained in this Article Ten or elsewhere 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 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 deliverable to the Trustee
or such Holder, or (2) under the conditions specified in Section 10.06, to
prevent any payment 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
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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 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 subordination 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 Indebtedness is outstanding; (2) sell,
exchange, release or otherwise 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.
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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 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
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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, 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
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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 Affiliate 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 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
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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 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 covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article Eleven, the Indebtedness 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 provisions.
Section 11.02. Payment over of Proceeds upon Dissolution, etc. In
the event of (a) any insolvency or
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bankruptcy case or proceeding, or any receivership, liquidation, 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 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 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 Senior
Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the 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 Indebtedness; and
(3) in the event that, notwithstanding the foregoing 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
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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 equivalents, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebt-
edness.
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, reorganization, 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 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 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
Obligations 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, including any missed payments.
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(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 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
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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).
(c) In the event that, notwithstanding the foregoing, 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 Indebtedness, 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 otherwise.
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
122
of such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on the Notes shall be paid in full
in cash or cash equivalents. 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 provisions 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.
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 Indebtedness 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 Relative 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 Indenture 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 obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the Notes
the principal of, premium, 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 remedies
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
123
Senior Indebtedness (1) in any case, proceeding, dissolution, 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 deliverable to the Trustee or such Holder, or
(2) under the conditions specified in Section 11.03, to prevent any payment
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 provision of this Article Eleven shall not be
construed as preventing the occurrence of a Default or an Event of Default
hereunder.
Section 11.07. 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 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 Provisions. (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 Indebtedness may, at any time and from
time to time, without the
124
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 subordination provided in this Article Eleven or the obligations
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 agreement 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 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, premium,
if any, or interest on any Note), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness or any trustee, fiduciary or agent thereof, the
Trustee shall have full power and authority to receive such money and to apply
the
125
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 determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Eleven, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of 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 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, 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
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
126
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 Indebtedness, 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.
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 Section 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. Nothing 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.
127
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 communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail, postage prepaid, addressed as follows:
If to the Company or any Note Guarantor to:
Mettler-Toledo, Inc.
Im Langacher
P.O. Box MT-100
CH-8606
Greifensee, Switzerland
Attention: Chief Executive Officer
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Timothy E. Peterson
If to the Trustee to:
United States Trust Company of
New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust Division
The parties hereto by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, postage prepaid, to a Holder,
including any notice delivered in connection 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.
128
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency 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 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 certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation
129
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 officials.
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
130
copies together represent the same agreement. One signed copy is enough to prove
this Indenture.
Section 12.12. Separability. In case any provision 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 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 Indenture 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: /s/ Robert Spoerry
-------------------------------
Name: Robert Spoerry
Title: President and Cheif
Executive Officer
METTLER-TOLEDO HOLDING INC.
By: /s/ Robert Spoerry
--------------------------------
Name: Robert Spoerry
Title: President and Cheif
Executive Officer
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ Patricia Sterner
--------------------------------
Name: Patricia Sterner
Title: Assistant Vice President
132
SCHEDULE 1
Existing Liens
Various equipment and automobile liens filed against Mettler-Toledo S.A.
(France)
SCHEDULE 2
Existing Indebtedness
US$-Equivalent
Indebtedness
Company Bank Currency Outstanding
------- ---- -------- -------------
Mettler-Toledo A/S Skandinaviska ENS SEK $1,308,000
Mettler-Toledo S.A.E. Banco BBV ESP 874,000
Mettler-Toledo S.p.A. Popodare di Milano ITL 490,000
Mettler-Toledo S.p.A. Popodare di Lecco ITL 126,000
Mettler-Toledo S.p.A. Ricevulez Bancarie ITL 670,000
Mettler-Toledo (S.E.A.)
Pte. Ltd. DBS Bank SGD 417,000
Mettler-Toledo (S.E.A.)
Pte. Ltd. Standard Chartered SGD 47,000
Mettler-Toledo
(Thailand) Ltd. Bangkok Bank THB 307,000
Changzhou Toledo
Electronic Scale Ltd Communication Bank CNY 311,000
Changzhou Toledo
Electronic Scale Ltd Bank of China CNY 2,262,000
----------
Total $6,812,000
==========
EXHIBIT A
[Form of Face of Note]
[INCLUDE IF NOTE IS A GLOBAL NOTE DEPOSITED WITH THE DEPOSITORY --
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 ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 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.]
MT ACQUISITION CORP.
(to be assumed by METTLER-TOLEDO, INC.)
9 3/4% Senior Subordinated Note due 2006
CUSIP No. 592685AA9
No. $
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 the Indenture hereinafter referred to), for value
received, hereby promises to pay to or registered assigns, the principal sum of
$___ on October 1, 2006, at the office or agency of the Company referred to
below, and to pay interest thereon on April 1 and October 1, in each year,
commencing on April 1, 1997, accruing from October 15, 1996 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at the rate of 9 3/4% 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 the Indenture referred to on
the reverse 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,
A-1
which shall be March 15 or September 15 (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 the Indenture.
Payment of the principal of, premium, if any, 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, subject to Section 2.14 of the Indenture.
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 the 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:
A-3
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
Date of Authentication:
A-4
[Form of Reverse of Note]
1. Indenture. This Note is one of a duly authorized issue of Notes
of the Company designated as its 9 3/4% Senior Subordinated Notes due 2006,
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $135,000,000, which may be issued under an
indenture (herein called the "Indenture") dated as of October 15, 1996, between
MT Acquisition Corp., a Delaware corporation, as issuer (together with its
successors, the "Company"), Mettler-Toledo 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 the 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 provisions of this Note
or of the 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 the 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 the 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 the
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
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 the 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
A-5
be so subordinate and subject in right of payment upon any defeasance of this
Note referred to in Paragraph 7 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 October 1, 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 October 1 of the years indicated below:
Redemption
Year Price
--------------------------- --------------
2001.................................... 104.875%
2002.................................... 103.250%
2003.................................... 101.625%
2004 and thereafter..................... 100.000%
plus accrued and unpaid interest, if any, to the Redemption Date, all as
provided in the Indenture.
(b) Optional Redemption Upon Public Equity Offering. In addition, at
any time and from time to time on or prior to December 1, 1999, the Company may
redeem in the aggregate up to $47,250,000 of the original principal 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 109% of the principal amount thereof plus accrued
and unpaid interest, if any, to the Redemption Date; provided that not less than
$87,750,000 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
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 Predecessor
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
A-6
in accordance with the Indenture shall cease to bear interest from and after the
Redemption Date.
(d) Partial Redemption. In the event of redemption 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 the 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 the
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 permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the 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 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 the Indenture and certain past Defaults under the
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 thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the
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Notes are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
As provided in the Indenture and subject to certain 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 accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, 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 registration 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 purposes, whether or not
this Note shall be overdue, and 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 CON FLICTS OF LAW
THEREOF.
12. Selection and Notice. 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 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 redemption 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 redemption 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
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unredeemed portion thereof will be issued in the name of the Holder thereof upon
surrender 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:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and
not as tenants in common
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.
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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 and the payment or performance of all other
obligations of the Company under the Indenture and this Note, all in accordance
with and subject to the terms of this Note and Article Ten of the Indenture.
This Note Guarantee is subject to release upon the terms set forth in the
Indenture.
METTLER-TOLEDO HOLDING INC.
By:_________________________________________
Name:
Title:
[SEAL]
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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 purchased 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: ______________________
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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: ______________________
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EXHIBIT B
FORM OF FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of October 15, 1996 (this
"Supplemental Indenture"), among METTLER-TOLEDO, INC., a corporation
incorporated under the laws of the State of Delaware (together with its
successors, the "Company"), METTLER-TOLEDO 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
$135,000,000 of 9 3/4% 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.
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.
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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 pur poses, 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.
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