Exhibit 4
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X'XXXXXXXX INDUSTRIES, INC.
and each of the Guarantors PARTY HERETO
10.63% SENIOR SECURED NOTES DUE 2008
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INDENTURE
Dated as of September 29, 2003
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The Bank of New York
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................................... 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.10
(b).................................................................... 7.10
(c).................................................................... N.A.
311(a)...................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... N.A.
312(a)...................................................................... 2.05
(b).................................................................... 14.03
(c).................................................................... 14.03
313(a)...................................................................... 7.06
(b)(1)................................................................. 10.03
(b)(2)................................................................. 7.06; 7.07
(c).................................................................... 7.06; 10.03; 14.02
(d).................................................................... 7.06
314(a)...................................................................... 4.03;14.02; 14.05
(c)(1)................................................................. 14.04
(c)(2)................................................................. 14.04
(c)(3)................................................................. N.A.
(d).................................................................... 10.03; 10.04; 10.05
(e).................................................................... 14.05
(f).................................................................... N.A.
315(a)...................................................................... 7.01
(b).................................................................... 7.05;14.02
(c).................................................................... 7.01
(d).................................................................... 7.01
(e).................................................................... 6.11
316(a) (last sentence)...................................................... 2.09
(a)(1)(A).............................................................. 6.05
(a)(1)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.07
(c).................................................................... 2.12
317(a)(1)................................................................... 6.08
(a)(2)................................................................. 6.09
(b).................................................................... 2.04
318(a)...................................................................... 14.01
(b).................................................................... N.A.
(c).................................................................... 14.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions...............................................................................1
Section 1.02 Other Definitions........................................................................25
Section 1.03 Incorporation by Reference of Trust Indenture Act........................................26
Section 1.04 Rules of Construction....................................................................26
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating..........................................................................26
Section 2.02 Execution and Authentication.............................................................28
Section 2.03 Registrar and Paying Agent...............................................................28
Section 2.04 Paying Agent to Hold Money in Trust......................................................28
Section 2.05 Holder Lists.............................................................................29
Section 2.06 Transfer and Exchange....................................................................29
Section 2.07 Replacement Notes........................................................................41
Section 2.08 Outstanding Notes........................................................................41
Section 2.09 Treasury Notes...........................................................................41
Section 2.10 Temporary Notes..........................................................................42
Section 2.11 Cancellation.............................................................................42
Section 2.12 Defaulted Interest.......................................................................42
Section 2.13 CUSIP Numbers............................................................................42
Section 2.14 Original Issue Discount..................................................................42
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.......................................................................43
Section 3.02 Selection of Notes to Be Redeemed or Purchased...........................................43
Section 3.03 Notice of Redemption.....................................................................43
Section 3.04 Effect of Notice of Redemption...........................................................44
Section 3.05 Deposit of Redemption or Purchase Price..................................................44
Section 3.06 Notes Redeemed or Purchased in Part......................................................45
Section 3.07 Optional Redemption......................................................................45
Section 3.08 Mandatory Redemption.....................................................................46
Section 3.09 Offer to Purchase by Application of Excess Proceeds......................................46
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.........................................................................47
Section 4.02 Maintenance of Office or Agency..........................................................48
Section 4.03 Reports..................................................................................48
Section 4.04 Compliance Certificate...................................................................49
Section 4.05 Taxes....................................................................................50
Section 4.06 Stay, Extension and Usury Laws...........................................................50
Section 4.07 Restricted Payments......................................................................50
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries...........................53
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock...............................54
Section 4.10 Asset Sales..............................................................................57
Section 4.11 Transactions with Affiliates.............................................................59
Section 4.12 Liens....................................................................................60
Section 4.13 Business Activities......................................................................60
Section 4.14 Corporate Existence......................................................................60
Section 4.15 Offer to Repurchase Upon Change of Control...............................................60
Section 4.16 Capital Expenditures.....................................................................62
Section 4.17 Off-Balance Sheet Transactions...........................................................62
Section 4.18 No Amendment of Subordination Provisions in Existing Subordinated Notes..................62
Section 4.19 Limitation on Sale and Leaseback Transactions............................................63
Section 4.20 Additional Note Guarantees...............................................................63
Section 4.21 Designation of Restricted and Unrestricted Subsidiaries..................................63
Section 4.22 Further Assurances Regarding Collateral..................................................64
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.................................................65
Section 5.02 Successor Corporation Substituted........................................................66
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default........................................................................66
Section 6.02 Acceleration.............................................................................67
Section 6.03 Other Remedies...........................................................................68
Section 6.04 Waiver of Past Defaults..................................................................68
Section 6.05 Control by Majority......................................................................68
Section 6.06 Limitation on Suits......................................................................69
Section 6.07 Rights of Holders of Notes to Receive Payment............................................69
Section 6.08 Collection Suit by Trustee...............................................................69
Section 6.09 Trustee May File Proofs of Claim.........................................................69
Section 6.10 Priorities...............................................................................70
Section 6.11 Undertaking for Costs....................................................................70
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee........................................................................70
Section 7.02 Rights of Trustee........................................................................71
Section 7.03 Individual Rights of Trustee.............................................................72
Section 7.04 Trustee's Disclaimer.....................................................................73
Section 7.05 Notice of Defaults.......................................................................73
Section 7.06 Reports by Trustee to Holders of the Notes...............................................73
Section 7.07 Compensation and Indemnity...............................................................73
Section 7.08 Replacement of Trustee...................................................................74
Section 7.09 Successor Trustee by Merger, etc.........................................................75
Section 7.10 Eligibility; Disqualification............................................................75
Section 7.11 Preferential Collection of Claims Against Company........................................75
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.................................75
Section 8.02 Legal Defeasance and Discharge...........................................................75
Section 8.03 Covenant Defeasance......................................................................76
Section 8.04 Conditions to Legal or Covenant Defeasance...............................................76
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. 77
Section 8.06 Repayment to Company.....................................................................78
Section 8.07 Reinstatement............................................................................78
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes......................................................79
Section 9.02 With Consent of Holders of Notes.........................................................79
Section 9.03 Compliance with Trust Indenture Act......................................................81
Section 9.04 Revocation and Effect of Consents........................................................81
Section 9.05 Notation on or Exchange of Notes.........................................................81
Section 9.06 Trustee to Sign Amendments, etc..........................................................81
ARTICLE 10.
Intercreditor Provisions
Relating to Credit Agreement
Section 10.01 Ranking of Liens.........................................................................81
Section 10.02 Payments from Proceeds of Collateral.....................................................82
Section 10.03 Foreclosure on Common Stock of the Company...............................................83
Section 10.04 Consent to License to Use Intellectual Property; Access to Information; Access to Real Property to Process
and Sell Inventory.......................................................................83
Section 10.05 Restriction on Enforcement of Subordinate Liens..........................................85
Section 10.06 Proceeds of Insurance....................................................................87
Section 10.07 Insolvency or Liquidation Proceedings....................................................88
Section 10.08 Amendment of Intercreditor Provisions....................................................90
Section 10.09 Waiver of Certain Subrogation, Marshalling, Appraisal and Valuation Rights...............91
Section 10.10 Obligations Not Subordinated.............................................................93
Section 10.11 Enforcements.............................................................................94
Section 10.12 Relative Rights..........................................................................94
ARTICLE 11.
COLLATERAL AND SECURITY
Section 11.01 Security Documents.......................................................................94
Section 11.02 Note Collateral and Credit Agreement Collateral; Priority Liens and Subordinate Liens....95
Section 11.03 Authorization of Actions to Be Taken.....................................................96
Section 11.04 Release of Liens Securing Note Obligations...............................................97
Section 11.05 Further Assurances; Inspection; Expense Reimbursement; Indemnity......................97
Section 11.06 Amendment of Note Security Documents.....................................................99
ARTICLE 12.
NOTE GUARANTEES
Section 12.01 Guarantee................................................................................99
Section 12.02 Limitation on Guarantor Liability.......................................................100
Section 12.03 Execution and Delivery of Note Guarantee................................................101
Section 12.04 Guarantors May Consolidate, etc., on Certain Terms......................................101
Section 12.05 Releases................................................................................102
ARTICLE 13.
satisfaction and discharge
Section 13.01 Satisfaction and Discharge..............................................................102
Section 13.02 Application of Trust Money..............................................................103
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls............................................................104
Section 14.02 Notices.................................................................................104
Section 14.03 Communication by Holders of Notes with Other Holders of Notes...........................105
Section 14.04 Certificate and Opinion as to Conditions Precedent......................................105
Section 14.05 Statements Required in Certificate or Opinion...........................................105
Section 14.06 Rules by Trustee and Agents.............................................................106
Section 14.07 No Personal Liability of Directors, Officers, Employees and Stockholders................106
Section 14.08 Governing Law...........................................................................106
Section 14.09 No Adverse Interpretation of Other Agreements...........................................106
Section 14.10 Successors..............................................................................106
Section 14.11 Severability............................................................................106
Section 14.12 Counterpart Originals...................................................................106
Section 14.13 Table of Contents, Headings, etc........................................................106
Section 14.14 Waiver of Jury Trial....................................................................107
EXHIBITS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTE GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G FORM OF PLEDGE AND SECURITY AGREEMENT
INDENTURE dated as of September 29, 2003 among X'Xxxxxxxx Industries, Inc., a Delaware corporation (the "Company"), the
Guarantors (as defined) and The Bank of New York, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders (as defined) of the 10.63% Senior Secured Notes due 2008 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of Exhibit A1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will
be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Accounts" means all "accounts," as such term is defined in the NYUCC, now or hereafter acquired by any Obligor arising from
the sale of inventory or from services rendered in its ordinary course of business, including (a) all of such Obligor's rights in, to
and under all receipts for goods or services, (b) all of such Obligor's rights to any goods represented by any of the foregoing
(including unpaid sellers' rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed and
repossessed goods) and (c) all collateral security of any kind, now or hereafter in existence, given by any Account Debtor or other
Person with respect to any of the foregoing.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a
Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
"Additional Interest" means all Additional Interest then owing pursuant to the Registration Rights Agreement.
"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 purposes of this definition, "control," as used with respect to
any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control with" shall have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional paying agent.
"Applicable Premium" means, with respect to any Note on any date (the "calculation date"), the greater of:
(1) 1.0% of the principal amount of such Note; or
(2) the excess of:
(A) the present value at such calculation date of:
(i) the redemption price of such Note at October 1, 2006 (such redemption price being set forth in the table above under
the caption "Optional Redemption") plus
(ii) all required interest payments due on such Note through October 1, 2006 (excluding accrued but unpaid interest),
computed using a discount rate equal to the Treasury Rate plus 50 basis points over
(B) the principal amount of such note, if greater.
"Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Note,
the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition (a "Disposition") of any assets or rights (including, without
limitation, by way of a sale and leaseback) (provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by Sections
3.09, 4.15 and 5.1 and not by Section 4.10); and
(2) the issue or sale by the Company or any of its Restricted Subsidiaries of Equity Interests of any of the Company's
Subsidiaries, in the case of either clause (1) or (2), whether in a single transaction or a series of related transactions:
(A) that have a Fair Market Value in excess of $1.0 million, or
(B) for net proceeds in excess of $1.0 million.
Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:
(1) a disposition of assets by the Company to a Restricted Subsidiary or by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary;
(2) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(3) a Restricted Payment that is permitted by Section 4.7 hereof;
(4) a disposition of assets in the ordinary course of business;
(5) foreclosures on assets;
(6) the licensing of intellectual property; and
(7) the sale or other disposition of damaged, worn-out or obsolete assets in the ordinary course of business.
"Asset Sales Proceeds Account" means one or more deposit accounts established and maintained by and in the name of the
Trustee and under the sole dominion and control of the Trustee for the purpose of holding any Net Proceeds from the sale or other
disposition of property or assets constituting Note Priority Lien Collateral.
"Attributable Debt" in respect of a sale and leaseback transaction means, at the time of determination, the present value of
the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback
transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the
amount of Indebtedness represented thereby will be determined in accordance with the definition of "Capital Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in
calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such
"person" shall be deemed to have beneficial ownership of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to
act on behalf of such board;
(2) with respect to a partnership, the Board of Directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing
members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
"Borrowing Base" means, as of any date, an amount equal to the sum of:
(1) 75% of the book value of all accounts receivable owned by the Company and its Restricted Subsidiaries as of the end
of the most recent fiscal quarter preceding such date that were not more than 180 days past due; plus
(2) 50% of the book value of all inventory owned by the Company and its Restricted Subsidiaries as of the end of the
most recent fiscal quarter preceding such date,
in each case, calculated in accordance with GAAP; provided that in the event of any merger, acquisition or other similar business
combination occurring after the end of the most recent fiscal quarter, then the Borrowing Base shall be calculated giving pro forma
effect to such merger, acquisition or other similar business combination as if such merger, acquisition or other similar business
combination had occurred as of the end of the most recent fiscal quarter preceding the date of determination.
"Broker-Dealer" has the meaning set forth in the Registration Rights Agreement.
"BRS" means Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.L.C., a Delaware limited liability company.
"Business Day" means any day other than a Legal Holiday.
"Capital Expenditure" means, for any period, with respect to any Person, the aggregate of all expenditures by such Person
and its Restricted Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions
to equipment (including replacements, capitalized repairs and improvements during such period) which should be capitalized under GAAP
on a consolidated balance sheet of such Person and its Restricted Subsidiaries.
"Capital Lease Obligation" means, at the time any determination is to be made, the amount of the liability in respect of a
capital lease that would at that time be required to be capitalized on a balance sheet 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 prior to the first date upon
which such lease may be prepaid by the lessee without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or
membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities
convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) Government Securities having maturities of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and overnight bank deposits, in each case with
any lender party to a Credit Facility or with any domestic commercial bank having capital and surplus in excess of $500
million and a Xxxxxxxx Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven days for underlying securities of the types described in
clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3)
above;
(5) commercial paper having the rating of "P-2" (or higher) from Xxxxx'x Investors Service, Inc. or "A-3" (or higher)
from Standard & Poor's Corporation and in each case maturing within six months after the date of acquisition; and
(6) any fund investing exclusively in investments of which constitute Cash Equivalents of the kinds described in clauses
(1) through (5) of this definition.
"Change of Control" means the occurrence of any of the following:
(1) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or
a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange Act) other than a Principal or a Related
Party of a Principal;
(2) the adoption of a plan relating to the liquidation or dissolution of the Company;
(3) the consummation of any transaction the result of which is that any "person" (as such term is defined in Sections
13(d) and 14(d) of the Exchange Act), other than one or more Principals or their Related Parties or a Permitted Group
becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of X'Xxxxxxxx Holdings, provided,
that the Principals and Related Parties Beneficially Own, directly or indirectly, in the aggregate a lesser percentage of
the total voting power of the Voting Stock of X'Xxxxxxxx Holdings than such other person and do not have the right or
ability by voting power, contract or otherwise, to elect or designate for election a majority of the Board of Directors of
X'Xxxxxxxx Holdings;
(4) the first day on which a majority of the members of the Board of Directors of X'Xxxxxxxx Holdings are not Continuing
Directors; or
(5) the first day on which the Company ceases to be a Wholly Owned Subsidiary of X'Xxxxxxxx Holdings.
"Clearstream" means Clearstream Banking, S.A.
"Collateral" means all property upon which a Lien is at any time granted to secure any Secured Obligation.
"Company" means X'Xxxxxxxx Industries, Inc., and any and all successors thereto.
"Consolidated Cash Flow" means, with respect to any Person for any period, the Consolidated Net Income of such Person for
such period, plus:
(1) an amount equal to any extraordinary loss plus any net loss realized by such Person or any of its Restricted
Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net
Income; plus
(2) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to
the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
(3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent such Fixed Charges
were deducted in computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash charges (excluding any such non-cash charge to
the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid
cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent
that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income;
plus
(5) any extraordinary charges, as defined by GAAP, for such period to the extent that such charges were deducted in
computing such Consolidated Net Income; plus
(6) amounts accrued pursuant to the Management Services Agreement to the extent such amounts were deducted in computing
Consolidated Net Income but were not paid in cash; plus
(7) with respect to the Company and its Restricted Subsidiaries, the amount of RadioShack Payments paid in respect of
such period; minus
(8) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the
ordinary course of business; minus
(9) the amount of any cash payments made pursuant to the Management Services Agreement whether or not such amount was
deducted in computing Consolidated Net Income.
"Consolidated Interest Expense" means, with respect to any Person for any period, the sum of, without duplication:
(1) the interest expense of such Person and its Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP (including amortization of original issue discount, non-cash interest payments, the
interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments, if any, pursuant to Hedging Obligations in respect of interest rates; provided that in no
event shall any amortization of deferred financing costs be included in Consolidated Interest Expense); plus
(2) the consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid
or accrued.
Notwithstanding the preceding, the Consolidated Interest Expense with respect to any Restricted Subsidiary that is not a Wholly Owned
Restricted Subsidiary shall be included only to the extent (and in the same proportion) that the net income of such Restricted
Subsidiary was included in calculating Consolidated Net Income.
"Consolidated Net Income" means, with respect to any Person for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that
(1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount of dividends or similar distributions paid in
cash to the referent Person or a Restricted Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of
the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders;
(3) the cumulative effect of a change in accounting principles shall be excluded;
(4) the Net Income of any Unrestricted Subsidiary shall be excluded, whether or not distributed to the Company or one of
its Restricted Subsidiaries; and
(5) the Net Income of the Company and its Restricted Subsidiaries shall be reduced by the amount of RadioShack Payments
made during the applicable period.
"Continuing Directors" means, as of any date of determination, any member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date hereof;
(2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or election; or
(3) was nominated by the Principals pursuant to the Stockholders Agreement.
"Corporate Trust Office of the Trustee" will be at the address of the Trustee specified in Section 14.02 hereof or such
other address as to which the Trustee may give notice to the Company.
"Credit Agreement" means the Credit Agreement, dated as of September 29, 2003, by and between the Company, X'Xxxxxxxx
Holdings, X'Xxxxxxxx Industries - Virginia, Inc., X'Xxxxxxxx Furniture Factory Outlet, Inc. and General Electric Capital Corporation,
as agent, providing for up to $40.0 million in a revolving credit facility, including a letter of credit subfacility and a million
swing line subfacility, including any related notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, as the same may be amended, modified, restated, renewed, extended, refinanced, or replaced, in each case, in
whole or in part; provided, that a refinancing or replacement of any such agreement will only be deemed a "Credit Agreement" if so
designated by the Company.
"Credit Agreement Agent" means General Electric Capital Corporation, as the Agent under the Credit Agreement and any
successor in any such capacity or, if at any time no Person is acting in any such capacity, the Required Lenders.
"Credit Agreement Obligations" means Indebtedness of one or more Obligors in an aggregate outstanding principal amount not
exceeding the Maximum Credit Agreement Indebtedness Amount outstanding under the Credit Agreement, guarantees of such Maximum Credit
Agreement Indebtedness Amount by other Obligors and other Obligations of any Obligor, not constituting the principal of Indebtedness,
under the Credit Agreement.
"Credit Agreement Priority Lien Collateral" means all Accounts (and all instruments, chattel paper and other documents
evidencing the obligation of any account debtor to pay any obligation that at any time constituted an Account), Inventory, supporting
obligations (as defined in the NYUCC) that support Accounts, deposit accounts (as defined in the NYUCC), intellectual property rights
licensed to the Company by third parties for the manufacturing, production, completion, removal or sale of items from Inventory where
such license cannot be sublicensed by the Company, Cash Equivalents (including Cash Equivalents in securities accounts (as defined in
the NYUCC)) (other than any deposit account or Cash Equivalent that constitutes or is held in an Asset Sales Proceeds Account), all
books and records, including computer records and software, evidencing or directly relating to Accounts, Inventory and other property
described as Credit Agreement Priority Lien Collateral and Proceeds of all of the foregoing at any time owned or acquired by the
Company or any other Obligor, subject to Permitted Prior Liens.
"Credit Agreement Security Documents" means one or more security agreements, pledge agreements, collateral assignments,
mortgages, deeds of trust, control agreements, lock-box agreements or similar agreements to any of the foregoing or other grants or
transfers for security executed and delivered by the Company or any other Obligor creating (or purporting to create) a Lien upon the
property owned or to be acquired by the Company or such other Obligor in favor of the Credit Agreement Agent for the benefit of the
Lenders under the Credit Agreement and any other holder of Credit Agreement Obligations.
"Credit Bid Rights" means, in respect of any order relating to a sale of assets in any Insolvency or Liquidation Proceeding,
that:
(1) such order grants the Holders of Notes (individually and in any combination) or the holders of Credit Agreement
Obligations (individually and in any combination), as the case may be, the right to bid at the sale of such assets and the
right to offset such holders' claims secured by Liens securing Credit Agreement Obligations, in the case of the Holders of
Notes, or Liens securing Note Obligations, in the case of the holders of Credit Agreement Obligations, upon such assets
against the purchase price of such assets if:
(A) the bid of such holders is the highest bid or otherwise determined by the court to be the best offer at the sale; and
(B) the bid of such holders includes a cash purchase price component payable at the closing of the sale in an amount
that would be sufficient on the date of the closing of the sale to achieve the release, in whole, of all Liens
securing Note Obligations or the Discharge of Credit Agreement Indebtedness, as the case may be, and to satisfy all
liens entitled to priority over the Priority Liens that attach to the proceeds of the sale, if such amount were
applied on the date of the sale to the payment in cash of:
(i) all unpaid Note Obligations or Credit Agreement Obligations (except Unasserted Contingent Obligations);
(ii) all unpaid claims secured by any such liens entitled to priority over the Priority Liens; and
(iii) all claims and costs, including those incurred in connection with the sale by the Credit Agreement Agent, the
holders of Credit Agreement Obligations, the Trustee or the holders of Note Obligations, as the case may
be, required by such order to be paid from the proceeds of the sale in priority over the Note Obligations
or Credit Agreement Obligations, as the case may be, whether or not the order requires or permits such
amount to be so applied; and
(2) such order allows the claims of the holders of Credit Agreement Obligations or the holders of Note Obligations, as
the case may be, in such Insolvency or Liquidation Proceeding to the extent required for the grant of such rights.
"Credit Facilities" means, one or more debt facilities or commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured or refinanced (including by means of
sales of debt securities) in whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of the Holder thereof and issued in accordance with
Section 2.06 hereof, substantially in the form of Exhibit A1 hereto except that such Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in
Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provision of this Indenture.
"Discharge of Credit Agreement Indebtedness" means termination of all commitments to extend credit that would constitute
Indebtedness under the Credit Agreement, payment in full in cash of the principal of and interest and premium (if any) on all
Indebtedness outstanding under the Credit Agreement other than any undrawn letter of credit, discharge or cash collateralization (at
105% of the aggregate undrawn amount) of all letters of credit issued and outstanding under the Credit Agreement, and payment in full
in cash of all other Credit Agreement Obligations (except Unasserted Contingent Obligations) that are unpaid at the time the
Indebtedness outstanding under the Credit Agreement (other than any undrawn letter of credit) is paid in full in cash.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would not
qualify as Disqualified Stock but for change of control or asset sale provisions shall not constitute Disqualified Stock if the
provisions are not more favorable to the holders of such Capital Stock than the provisions under Sections 4.10 and 4.15 hereof.
"Domestic Restricted Subsidiary" means, with respect to the Company, any Restricted Subsidiary of the Company that was
formed under the laws of the United States of America.
"Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means an offering of the Equity Interests (other than Disqualified Stock) of the Company or X'Xxxxxxxx
Holdings that results in net proceeds to the Company, or a contribution to the common equity capital of the Company, of at least
$25,000,000.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in the Registration Rights Agreement.
"Excluded Assets" means:
(1) deposit accounts (as defined in the NYUCC), except any Asset Sale Proceeds Account, that either (i) are subject to a
control agreement in favor of the Credit Agreement Agent or (ii) do not hold deposits in an aggregate amount exceeding
$500,000;
(2) any lease of premises used only as office space or to warehouse Inventory;
(3) any fee interest in real estate that, in the good faith judgment of the Company, has a fair market value of less
then $1.0 million (other than any real estate as to which a mortgage has already been granted);
(4) any governmental permit or governmental license if, to the extent that and for as long as under the law applicable
to such permit or license (i) the grant of a security interest therein is prohibited or (ii) a security interest therein may
be granted only after completion of a filing with, or receipt of consent from, a regulatory authority which has not been
effectively completed or received; provided, however, that (a) such permit or license will be an Excluded Asset only to the
extent and for as long as the conditions set forth in the preceding clauses (i) and (ii) in this definition are and remain
satisfied and will cease to be an Excluded Asset, and will become subject to the security interests granted to the trustee
under the Note Security Documents, immediately and automatically at such time as such conditions cease to exist, including
by reason of the effective completion of any required filing or effective receipt of any required regulatory approval; and
(b) unless prohibited by law, the proceeds of any sale, lease or other disposition of any such permit or license that is an
Excluded Asset shall not be an Excluded Asset and shall at all times be and remain subject to the security interests granted
to the trustee under the Note Security Documents;
(5) any lease, license, permit, franchise, power, authority or right constituting personal property if, to the extent
that and for as long as (i) the grant of a security interest therein constitutes or would result in the abandonment,
invalidation or unenforceability of such lease, license, interest, permit, franchise, power, authority or right or the
termination of or a default under the instrument or agreement by which such lease, license, interest, permit, franchise,
power, authority or right is governed and (ii) such abandonment, invalidation, unenforceability, breach, termination or
default is not rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code (or any
successor provision) of any relevant jurisdiction or any other applicable law (including the United States Bankruptcy Code)
or principles of equity; provided, however, that (a) such lease, license, interest, permit, franchise, power, authority or
right will be an Excluded Asset only to the extent and for as long as the conditions set forth in clauses (i) and (ii) in
this definition are and remain satisfied and will cease to be an Excluded Asset, and will become subject to the security
interests granted to the trustee under the Note Security Documents, immediately and automatically at such time as such
conditions cease to exist, including by reason of any waiver or consent under the applicable instrument or agreement, and
(b) the proceeds of any sale, lease or other disposition of any such lease, license, interest, permit, franchise, power,
authority or right that is an Excluded Asset shall not be an Excluded Asset and shall at all times be and remain subject to
the security interests granted to the trustee under the Note Security Documents;
(6) any lease, license, permit, franchise, power, authority or right constituting real property if, to the extent that
and for as long as the grant of a security interest therein (i) requires a third party consent or (ii) constitutes or would
result in the abandonment, invalidation or unenforceability of such lease, license, interest, permit, franchise, power,
authority or right or the termination of or a default under the instrument or agreement by which such lease, license,
interest, permit, franchise, power, authority or right is governed; provided, however, that such lease, license, interest,
permit, franchise, power, authority or right will be an Excluded Asset only to the extent and for as long as the conditions
set forth in this definition are and remain satisfied and will cease to be an Excluded Asset, and will become subject to the
security interests granted to the Collateral Agent under the Security Documents, immediately and automatically at such time
as such conditions cease to exist, including by reason of any waiver or consent under the applicable instrument or agreement;
(7) any Capital Stock of any Person held by the Company or any of its Subsidiaries;
(8) other personal property in which a security interest cannot be perfected by the filing of a financing statement
under the Uniform Commercial Code or a recording with the United States Patent and Trademark Office having, in the aggregate
for all such property, a fair market value (as determined in good faith by the Company) not exceeding $1.0 million; and
(9) inventory held for sale or lease that is (i) subject to a perfected purchase money security interest (as defined in
Article 9 of the NYUCC) constituting a Permitted Lien of the type described in clause (6) or (7) of the definition of
"Permitted Liens" and (ii) not subject to any Priority Lien, and (to the extent the holder of any such purchase money
security interest has a security interest therein that is entitled as a matter of law, by reason of its purchase money
priority, to priority over a conflicting security) the identifiable proceeds of any such inventory, except that if at any
time, any Priority Lien attaches to any such inventory or proceeds under any circumstances, then concurrently and
automatically, without need for any additional grant of a security interest therein, such inventory and proceeds shall cease
to be an Excluded Asset and shall become and remain part of the Collateral and subject in all respect to all Liens on the
Credit Agreement Priority Lien Collateral securing Note Obligations and all Liens on the Note Priority Lien Collateral
securing Credit Agreement Obligations.
"Existing Indebtedness" means Indebtedness of the Company and its Subsidiaries (other than Indebtedness under the Credit
Agreement) in existence on the date hereof, until such amounts are repaid.
"Fair Market Value" means the value that would be paid by a willing buyer to a willing seller in a transaction not involving
distress or necessity of either party, determined in good faith by the chief financial officer or Board of Directors of the Company
(unless otherwise provided herein).
"Fixed Charge Coverage Ratio" means with respect to any Person for any period, the ratio of the Consolidated Cash Flow of
such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company or any of its
Restricted Subsidiaries incurs, assumes, Guarantees or redeems any Indebtedness (other than revolving credit borrowings) or issues
preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior
to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then
the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, Guarantee or redemption
of Indebtedness, or such issuance or redemption of preferred stock, as if the same had occurred at the beginning of the applicable
four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the Company or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to
such reference period and on or prior to the Calculation Date shall be calculated to include the Consolidated Cash Flow of
the acquired entities on a pro forma basis (to be calculated in accordance with Article 11-02 of Regulation S-X, as in
effect on the date hereof) after giving effect to cost savings resulting from employee terminations, facilities
consolidations and closings, standardization of employee benefits and compensation policies, consolidation of property,
casualty and other insurance coverage and policies, standardization of sales and distribution methods, reductions in taxes
other than income taxes and other cost savings reasonably expected to be realized from such acquisition and shall be deemed
to have occurred on the first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation Date, shall be excluded; and
(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following
the Calculation Date.
"Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of:
(1) the Consolidated Interest Expense of such Person for such period;
(2) any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such
Guarantee or Lien is called upon;
(3) the product of (a) all dividend payments, whether or not in cash, on any series of preferred stock of such Person or
any of its Restricted Subsidiaries, other than dividend payments on Equity Interests payable solely in Equity Interests of
the Company (other than Disqualified Stock) and other than accruals of dividends on Equity Interests that are not
Disqualified Stock that are added to the liquidation preference of such Equity Interests and are not required to be paid in
cash, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP.
"GAAP" means generally accepted accounting principles 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 or in such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect on the date hereof, except that calculations made for purposes of determining compliance
with the terms of the covenants and with other provisions of this Indenture shall be made without giving effect to depreciation,
amortization or other expenses recorded as a result of the application of purchase accounting in accordance with Accounting
Principles Board Opinion Nos. 16 and 17.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2), which is required to be placed on all Global Notes
issued under this Indenture.
"Global Notes" means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes
deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A1
hereto and that bears the Global Note Legend and that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations guaranteed by, the United States of America for the
payment of which guarantee or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner including, without limitation, letters of credit and reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Guarantors" means each of:
(1) X'Xxxxxxxx Holdings;
(2) X'Xxxxxxxx Industries - Virginia, Inc. and X'Xxxxxxxx Furniture Factory Outlet, Inc.; and
any other Subsidiary of the Company that executes a Guarantee in accordance with the provisions of this Indenture, and their
respective successors and assigns.
"Hedging Obligations" means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap
agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or
commodity prices.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of Exhibit A1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.
"Indebtedness" means, with respect to any specified Person, any indebtedness of such Person, in respect of:
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) bankers' acceptances;
(4) representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions; or
(5) the balance deferred and unpaid of the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the preceding items (other than letters of credit, Attributable Debt and Hedging Obligations) would
appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by such Person of any
indebtedness of any other Person; provided that Indebtedness shall not include the pledge by the Company of the Capital Stock of an
Unrestricted Subsidiary of the Company to secure Non-Recourse Debt of such Unrestricted Subsidiary.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness that does not require current payments of interest; and
(2) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of
any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to time.
"Indirect Participant" means a Person who holds a beneficial interest in a Global Note through a Participant.
"Initial Purchaser" means [redacted].
"Insolvency or Liquidation Proceeding" means:
(1) any case commenced by or against the Company or any other Obligor under any Bankruptcy Law, any other proceeding for
the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any other
Obligor, any receivership or assignment for the benefit of creditors relating to the Company or any other Obligor or any
similar case or proceeding relative to the Company or any other Obligor or its creditors, as such, in each case whether or
not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Company
or any other Obligor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any
other Obligor are determined and any payment or distribution is or may be made on account of such claims.
"Institutional Accredited Investor" means an institution that is an "accredited investor" as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act, who are not also QIBs.
"Intercreditor Agreement" means the Intercreditor Agreement dated the date hereof, among the Company, the Guarantors, the
Trustee and the Credit Agreement Agent, as it may be amended, supplemented or replaced from time to time in accordance with its terms
and this Indenture, the Credit Agreement and the Security Documents.
"Inventory" means all "inventory" as such term is defined in the NYUCC.
"Investments" means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in
the forms of direct or indirect loans (including guarantees of Indebtedness or other obligations), advances or capital contributions
(excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company
shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Equity
Interests of such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of the
covenant described above under the caption "--Restricted Payments."
"Legal Holiday" means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of
payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes
for use by such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, Lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Management Services Agreement" means the Management Services Agreement, dated as of November 30, 1999, between the Company
and BRS as in effect on the date hereof.
"Maximum Credit Agreement Indebtedness Amount" means, at any time, the sum of the maximum principal amount of Indebtedness
under Credit Facilities then permitted to be incurred under clause (1) of the definition of "Permitted Debt" and the aggregate
principal amount of Indebtedness under Credit Facilities then outstanding under clause (1) of the definition of "Permitted Debt."
"Net Income" means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and
before any reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in
connection with:
(A) any Asset Sale; or
(B) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary or nonrecurring gain (but not loss), together with any related provision for taxes on such
extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of
any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of the direct costs relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses incurred as a result thereof, taxes paid or payable
as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), the amounts
required to be applied to the payment of Indebtedness (other than Indebtedness incurred pursuant to a Credit Facility) secured by a
Lien on the asset or assets that were the subject of the Asset Sale, and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries:
(A) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute
Indebtedness),
(B) is directly or indirectly liable as a guarantor or otherwise, or
(C) constitutes the lender;
(2) no default with respect to which (including any rights that the holders thereof may have to take enforcement action
against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness
(other than the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its stated maturity; and
(3) as to which the lenders have been notified in writing that they will not have any recourse to the stock (other than
the stock of an Unrestricted Subsidiary pledged by the Company to secure debt of such Unrestricted Subsidiary) or assets of
the Company or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Documents" means this Indenture, the Notes, the Guarantees, the Note Security Documents and the Intercreditor
Agreement.
"Note Guarantee" means the Guarantee by each Guarantor of the Company's payment obligations under this Indenture and on the
Notes, executed pursuant to the provisions of this Indenture.
"Note Obligations" means the Notes, the Guarantees and all other Obligations of any Obligor under the Note Documents.
"Note Priority Lien Collateral" means (a) all property and assets, whether real, personal or mixed, whether tangible or
intangible, and wherever located, now owned or at any time hereafter acquired by the Company or any of its Domestic Restricted
Subsidiaries, other than Credit Agreement Priority Lien Collateral and Excluded Assets, subject to Permitted Prior Liens, and (b) all
of the outstanding common stock of the Company.
"Note Security Documents" means one or more security agreements, pledge agreement, collateral assignments, mortgages, deeds
of trust or other grants or transfers for security executed and delivered by the Company or any other Obligor creating (or purporting
to create) a Lien upon the property owned or to be acquired by the Company or such other Obligor in favor of the Trustee for the
benefit of the Holders of the Notes, the Guarantees and any other Obligations in respect of the Note Obligations.
"Notes" has the meaning assigned to it in the preamble to this Indenture.
"NYUCC" means the New York Uniform Commercial Code as in effect on the date hereof.
"Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities and obligations payable under the documentation governing any Indebtedness, including, without limitation, interest after
the commencement of any bankruptcy proceeding at the rate specified in the applicable instrument governing or evidencing Senior
Indebtedness.
"Obligor" means the Company and each Subsidiary of the Company that at any time guarantees or provides collateral security
or credit support for any Obligations.
"Off-Balance Sheet Transactions" has the meaning set forth in Item 303(a)(4)(ii) of Regulation S-K of the Securities Act;
provided that Off-Balance Sheet Transactions shall not include Hedging Obligations or other transactions entered into in the ordinary
course of business.
"Officer" means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must
be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Section 14.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the
requirements of Section 14.05 hereof. The counsel may be an employee of or counsel to the Company or any Subsidiary of the Company.
"Participant" means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the
Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
"Permitted Business" means any business in which the Company and its Restricted Subsidiaries are engaged on the date hereof
or any business reasonably related, incidental or ancillary thereto.
"Permitted Group" means any group of investors that is deemed to be a "person" (as that term is used in Section 13(d)(3) of
the Exchange Act) at any time prior to the Company's initial public offering of common stock, by virtue of the Stockholders
Agreement, as the same may be amended, modified or supplemented from time to time, provided that no single Person (other than the
Principals and their Related Parties) Beneficially Owns (together with its Affiliates) more of the Voting Stock of the Company that
is Beneficially Owned by such group of investors than is then collectively Beneficially Owned by the Principals and their Related
Parties in the aggregate.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such
Investment:
(A) such Person becomes a Restricted Subsidiary of the Company; or
(B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;
(4) Hedging Obligations;
(5) any Restricted Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.10 hereof;
(6) any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of
the Company;
(7) repurchases of the Notes; and
(8) other Investments made after the date hereof in any Person engaged in a Permitted Business having an aggregate Fair
Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value),
when taken together with all other Investments made pursuant to this clause (8) since the date hereof, not to exceed $5.0
million.
"Permitted Liens" means:
(1) Liens on the Collateral securing the Note Obligations in accordance with the Security Documents;
(2) Liens on the Credit Agreement Priority Lien Collateral securing Credit Agreement Obligations in accordance with the
Security Documents;
(3) Liens on the Note Priority Lien Collateral securing Credit Agreement Obligations in accordance with the Security
Documents; provided that such Liens are subordinated to the Liens on the Note Priority Lien Collateral securing the Note
Obligations;
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(6) Liens existing on the date hereof;
(7) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (4) of Section 4.09(b);
(8) Liens securing Permitted Refinancing Indebtedness where the Liens securing the Indebtedness being refinanced were
permitted under this Indenture;
(9) Liens incurred in the ordinary course of business of the Company or any Restricted Subsidiary of the Company with
respect to obligations that do not exceed $7.5 million at any one time outstanding and that: (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit (other than trade credit in the ordinary
course of business) and (b) do not in the aggregate materially detract from the value of the property or materially impair
the use thereof in the operation of business by the Company or such Restricted Subsidiary;
(10) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and
other property relating to such letters of credit and products and proceeds thereof;
(11) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Company or
any Restricted Subsidiary of the Company, provided that such Liens were not incurred in contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Company or
any Restricted Subsidiary;
(12) Liens on property existing at the time of acquisition thereof by the Company or any Restricted Subsidiary of the
Company, provided such Liens were not incurred in contemplation of such acquisition; and
(13) Liens securing Hedging Obligations which Hedging Obligations relate to Indebtedness that is otherwise permitted
under this Indenture.
"Permitted Prior Liens" means (a) Liens described in clauses (4), (5), (6), (8), (9), (10), (11) and (12) of the definition
of "Permitted Liens" and (b) Liens that arise by operation of law and are not voluntarily granted, to the extent entitled by law to
priority over the security interests created by the Security Documents.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the
Company or any of its Restricted Subsidiaries; provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable), plus accrued interest on, the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of reasonable expenses incurred in connection
therewith) except, in the case of a Credit Facility, the principal amount of such Permitted Refinancing Indebtedness does
not exceed the greater of (i) the principal amount of Indebtedness permitted (whether or not borrowed) under clause (1) of
Section 4.09(b) or (ii) the amount actually borrowed under such Credit Facility;
(2) such Permitted Refinancing Indebtedness has a final maturity date no earlier than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; and
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date
of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, limited liability company or government or other entity.
"Principals" means BRS and its affiliates.
"Priority Lien" means (a) any Lien securing Credit Agreement Obligations if and insofar as such Lien is attached to property
constituting Credit Agreement Priority Lien Collateral and (b) any Lien securing Note Obligations if and insofar as such Lien is
attached to property constituting Note Priority Lien Collateral.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(1) to be placed on all Notes issued under this
Indenture except where otherwise permitted by the provisions of this Indenture.
"Proceeds" means "proceeds" as such term is defined in the NYUCC.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RadioShack Payments" means payments made to RadioShack after the date hereof pursuant to the tax sharing and tax
reimbursement agreement by and between X'Xxxxxxxx Holdings and RadioShack.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of September 29, 2003, among the Company,
the Guarantors and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented
from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in the form of Exhibit A1 hereto bearing the Global Note
Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration
of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note in the form of Exhibit A2 hereto deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Party" with respect to any Principal means:
(1) any controlling stockholder or partner, 80% (or more) owned Subsidiary, or spouse or immediate family member (in the
case of an individual) of such Principal; or
(2) any trust, corporation, partnership or other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding a 51% or more controlling interest of which consist of such Principal and/or such other Persons
referred to in the immediately preceding clause (1).
"Required Lenders" means, at any time in respect of any action or matter, (a) holders of the principal amount of the
Indebtedness (or commitments) under the Credit Agreement then outstanding whose consent to such action or matter is required pursuant
to the terms of the Credit Agreement in order to bind all holders of such Indebtedness (or commitments) to such action or matter or
(b) the Credit Agreement Agent acting upon the authorization or consent of the holders referred to in clause (a).
"Responsible Officer," when used with respect to the Trustee, means any vice president, any assistant vice president, any
senior trust officer or assistant trust officer, any trust officer, or any other officer within the Corporate Trust Administration of
the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private Placement Legend.
"Restricted Investment" means an Investment other than a Permitted Investment.
"Restricted Period" means the 40-day distribution compliance period as defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.
" Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Secured Obligations" means the Note Obligations and Credit Agreement Obligations.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means the Note Security Documents and the Credit Agreement Security Documents.
"Shelf Registration Statement" means the Shelf Registration Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is in effect on the date hereof.
"Stated Maturity" means, with respect to any installment of interest or principal on any series of Indebtedness, the date on
which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and
shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholders Agreement" means that certain Stockholders Agreement, dated as of November 30, 1999, by and among X'Xxxxxxxx
Holdings, BRS and the other signatories party thereto, as in effect on the date hereof.
"Subordinate Lien" means (a) any Lien securing Credit Agreement Obligations if and insofar as such Lien is attached to
property constituting Note Priority Lien Collateral at any time prior to the release of all Liens securing Note Obligations and (b)
any Lien securing Note Obligations if and insofar as such Lien is attached to property constituting Credit Agreement Priority Lien
Collateral at any time prior to the Discharge of the Credit Agreement Indebtedness.
"Subordinated Note Indenture" means that certain indenture, dated as of November 30, 1999, between the Company and Norwest
Bank Minnesota, National Association, as trustee, as amended or supplemented from time to time, relating to the Subordinated Notes.
"Subordinated Notes" means the Company's 13 3/8% Senior Subordinated Notes due 2009 issued pursuant to the Subordinated Note
Indenture.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any partnership or limited liability company (a) the sole general partner or the managing general partner or
managing member of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).
"Tax Sharing Agreement" means that certain Tax Sharing Agreement, dated as of November 30, 1999, by and between the Company
and X'Xxxxxxxx Holdings.
"TIA" means the Trust Indenture Act of 1939 (15 X.X.X.xx.xx. 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified thereunder.
"Treasury Rate" means, as of any calculation date, the yield to maturity as of such calculation date of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15
(519) that has become publicly available at least two Business Days prior to the calculation date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most nearly equal to the period from the calculation date
to October 15, 2004; provided, however, that if the period from the calculation date to October 15, 2004 is less than one year, the
weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in the preamble to this Indenture until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
"Unasserted Contingent Obligations" means, at any time, Obligations for taxes, costs, indemnifications, reimbursements,
damages and other liabilities (except for (i) the principal of or premiums (if any) on, and fees relating to, any Indebtedness and
(ii) contingent reimbursement obligations in respect of amounts that may be drawn under letters of credit) in respect of which no
claim or demand for payment has been made (or, in the case of Obligations for indemnification, no notice of indemnification has been
issued by the indemnitee) at such time.
"Unrestricted Global Note" means a Global Note that does not bear and is not required to bear the Private Placement Legend.
"Unrestricted Definitive Note" means a Definitive Note that does not bear and is not required to bear the Private Placement
Legend.
"Unrestricted Subsidiary" means any Subsidiary that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of
the Company;
(3) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person's financial
condition or to cause such Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company
or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying
that such designation complied with the preceding conditions and was permitted by the covenant described above under the caption
"Certain Covenants--Restricted Payments." If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under the covenant described under the caption "--Incurrence of
Indebtedness and Issuance of Preferred Stock," the Company shall be in default of such covenant. The Board of Directors of the
Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall be permitted only if: (1) such Indebtedness is permitted under Section 4.09
hereof, and (2) no Default or Event of Default would be in existence following such designation.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in
the election of the Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by
dividing:
(1) the sum of the products obtained by multiplying: (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment,
by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any specified Person means any Wholly Owned Subsidiary of such Person which at the
time of determination is a Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at the time be owned by such Person and/or by one or
more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
Defined in
Term Section
"Affiliate Transaction"............................................................. 4.11
"Asset Sale Offer".................................................................. 3.09
"Authentication Order".............................................................. 2.02
"Change of Control Offer"........................................................... 4.15
"Change of Control Payment"......................................................... 4.15
"Change of Control Payment Date".................................................... 4.15
"Covenant Defeasance"............................................................... 8.03
"DTC"............................................................................... 2.03
"Event of Default".................................................................. 6.01
"Excess Proceeds"................................................................... 4.10
"incur"............................................................................. 4.09
"Legal Defeasance".................................................................. 8.02
"Offer Amount"...................................................................... 3.09
"Offer Period"...................................................................... 3.09
"Paying Agent"...................................................................... 2.03
"Permitted Debt".................................................................... 4.09
"Payment Default" .................................................................. 6.01
"Processing and Sale Period"........................................................ 10.04
"Purchase Date"..................................................................... 3.09
"Registrar"......................................................................... 2.03
"Restricted Payments"............................................................... 4.07
"Sale Delay Order".................................................................. 10.07
Section 1.03......Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of
this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor
upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined
by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication will be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be
dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and
the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A1 or A2 attached hereto
(including the Global Note Legend thereon and the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form will be substantially in the form of Exhibit A1 attached hereto (but without the Global Note Legend thereon
and without the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Each Global Note will represent such of
the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby
will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S will be issued initially in the form of
the Regulation S Temporary Global Note, which will be deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at its New York office, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Restricted Period will be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who
acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in a 144A Global Note or an IAI Global Note
bearing a Private Placement Legend, all as contemplated by Section 2.06(b) hereof); and
(2) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note will be
exchanged for beneficial interests in Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with
the authentication of Regulation S Permanent Global Note, the Trustee will cancel the Regulation S Temporary Global Note. The
aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time
be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(3) Euroclear and Clearstream Procedures Applicable. The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream Banking"
and "Customer Handbook" of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Note that are held by Participants through Euroclear or Clearsteam.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will
nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by two Officers (an "Authentication Order"),
authenticate Notes for original issue up to the aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. 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. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the
Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be presented for payment ("Paying Agent"). The Registrar will keep a register
of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar
or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to
the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or
Additional Interest, if any, or interest on the Notes, and will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The
Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying
Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders and shall otherwise comply with TIAss. 312(a). If the Trustee is not the Registrar, the Company
will furnish to the Trustee at least seven 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 the
Holders of Notes and the Company shall otherwise comply with TIAss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the Depositary to
a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the
Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary; or
(2) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the Trustee; provided that in no event shall the
Regulation S Temporary Global Note be exchanged by the Company for Definitive Notes prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act.
Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will
require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (other than the Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial
interest must deliver to the Registrar either:
(a) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred
or exchanged; and
(ii) instructions given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or
(b) both:
(i) a written order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note
in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above; provided that in no event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S Temporary Global Note prior to (A) the expiration of
the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule
903 under the Securities Act. Upon consummation of an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture
and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted
Global Note if the transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the
following:
(a) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note,
then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item
(1) thereof;
(b) if the transferee will take delivery in the form of a beneficial interest in the Regulation S
Temporary Global Note or the Regulation S Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; and
(c) if the transferee will take delivery in the form of a beneficial interest in the IAI Global Note,
then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a
beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section
2.06(b)(2) above and:
(a) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is
not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(b) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(c) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(d) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(a) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a) thereof;
(b) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(c) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(d) if such beneficial interest is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(e) if such beneficial interest is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;
(f) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(g) if such beneficial interest is being transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest
in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(2) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes. Notwithstanding Sections
2.06(c)(1)(A) and (C) hereof, a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:
(a) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(b) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(c) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(d) the Registrar receives the following:
(i) if the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer
such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company will execute and the
Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will
be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial
interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect
Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such
Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:
(a) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(b) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(c) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(d) if such Restricted Definitive Note is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(a) thereof;
(e) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;
(f) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(g) if such Restricted Definitive Note is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(a) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;
(b) such transfer is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(c) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(d) the Registrar receives the following:
(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel
the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to
subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Company
will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and
such Holder's compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must
provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar
receives the following:
(a) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(b) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(c) if the transfer will be made pursuant to any other exemption from the registration requirements of
the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in
the form of an Unrestricted Definitive Note if:
(a) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a broker-dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule
144) of the Company;
(b) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(c) any such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or
(d) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of
a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the
Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes accepted for exchange in the Exchange Offer
by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating
in a distribution of the Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this
Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(a) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933
(THE ""SECURITIES ACT ") AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY, (II) IN THE U.S. TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE
U.S. IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (V) IN THE U.S. TO AN INSTITUTIONAL ""ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), IN A MINIMUM PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT
AND THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
IN THE FORM SET FORTH ON THE REVERSE HEREOF CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO RESTRICTIONS ON TRANSFER OF
THIS SECURITY OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S., AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
(b) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs
(b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF X'XXXXXXXX INDUSTRIES, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX)
("XXX"), 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 MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR SUCH OTHER ENTITY AS MAY BE 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."
(3) Original Issue Discount Legend. Each Note will bear a legend in substantially the following form:
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED
WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $950, THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT IS $50, THE ISSUE DATE IS SEPTEMBER 29, 2003 AND THE YIELD TO MATURITY IS 12.00% PER ANNUM."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global
Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not
in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount
of Notes represented by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate
Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the
Registrar's request.
(2) No service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive
Note 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 exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or
Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(a) to issue, to register the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection;
(b) to register the transfer of or to exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part; or
(c) to register the transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.
(6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will
authenticate a replacement Note if the Trustee's requirements are met. If required by the Trustee or the Company, an indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for
its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the
provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or
a Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest
on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no
longer outstanding and will cease to accrue interest.
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 Guarantor, or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any Guarantor, will be considered as though not outstanding, except that for
the purposes of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes
that a Responsible Officer of the Trustee knows are so owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, will authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but
may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to
the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel
all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will dispose of canceled Notes
(subject to the record retention requirement of the Exchange Act) upon the Company's written request. Certification of the
destruction of all canceled Notes will be delivered to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus,
to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date,
in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to
be fixed each such special record date and payment date, provided that no such special record date may be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the
written request of the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders
a notice that states the special record date, the related payment date and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers.
The Company in issuing the Notes may use CUSIP numbers, if then generally in use, and thereafter with respect to such
series, the Trustee may use such numbers in any notice of redemption or exchange with respect to such series; provided that any such
notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained
in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee
of any change in the CUSIP numbers.
Section 2.14 Original Issue Discount
The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount
of original issue discount (including daily rates and accrual periods) accrued on the Notes as of the end of such year and (ii) such
other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish
to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officers' Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee will select
Notes for redemption or purchase as follows:
(1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal
national securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate.
In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected,
unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from
the outstanding Notes not previously called for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of
any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions
of Notes selected will be in amounts of $1,000 or whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days before a redemption date, the
Company will mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 13 of
this Indenture.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion will be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases
to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice
or printed on the Notes.
At the Company's request, the Trustee will give the notice of redemption in the Company's name and at its expense; provided,
however, that the Company has delivered to the Trustee, at least 45 days prior to the redemption date, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably
due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the Company will deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption or purchase price of and accrued interest and Additional Interest, if any, on all Notes
to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of,
and accrued interest and Additional Interest, if any, on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date,
interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or
purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any
Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until
such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an
Authentication Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount
to the unredeemed or unpurchased portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to October 1, 2006, the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under this Indenture at a redemption price of 110.63% of the principal amount at maturity thereof,
plus accrued and unpaid interest and Additional Interest, if any, to the redemption date, with a contribution to the common equity
capital of the Company made with the net cash proceeds of a concurrent Equity Offering by X'Xxxxxxxx'x direct or indirect parent;
provided that:
(1) at least 65% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held
by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and
(2) the redemption must occur within 90 days of the date of the closing of such Equity Offering.
(b) At any time prior to October 1, 2006, the Company may also redeem all or a part of the Notes upon the occurrence of
a Change of Control, upon not less than 30 nor more than 60 days prior notice (but in no event may any such redemption occur more
than 90 days after the occurrence of such Change of Control) mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount at maturity of Notes redeemed plus the Applicable Premium as of, and accrued
and unpaid interest and Additional Interest, if any, to the applicable date of redemption, subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant interest payment date.
(c) On or after October 1, 2006, the Company may redeem all or a part of the Notes, upon not less than 30 nor more than
60 days notice, at the redemption prices (expressed as percentages of principal amount at maturity) set forth below plus accrued and
unpaid interest and Additional Interest, if any, thereon, to the applicable redemption date, if redeemed during the twelve-month
period beginning on October 1 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to
receive interest on the relevant interest payment date:
Year Percentage
2006............................................................................. 105.315%
2007 and thereafter.............................................................. 100.000%
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Section 3.01 through 3.06
hereof.
Section 3.08 Mandatory Redemption.
Except as set forth under Sections 3.09, 4.10 and 4.15 hereof, the Company is not required to make mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase
Notes (an "Asset Sale Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not
more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later
than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company will apply all Excess Proceeds
(the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less
than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for
any Notes so purchased will be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued
and unpaid interest and Additional Interest, if any, will be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to each of the Holders,
with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time
the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale
Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in
integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or transfer by book-entry
transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof
exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata
basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as
may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, will
be purchased); and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, will promptly
(but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company, will promptly issue a
new Note, and the Trustee, upon written request from the Company will authenticate and mail or deliver (or cause to be transferred by
book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note
not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium, if any, and interest and Additional Interest, if any, on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest and Additional Interest, if
any, will be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. The Company will pay all Additional Interest, if any, in
the same manner on the dates and in the amounts set forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The
Company will 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 fails to maintain any such required office or agency or fails to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission will 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 will 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 designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in
accordance with Section 2.03 hereof.
Section 4.03 Reports.
Whether or not required by the SEC's rules and regulations, so long as any Notes are outstanding, the Company will furnish
to the Trustee and the Holders of Notes or cause the Trustee to furnish to the Holders of Notes, within the time periods specified in
the SEC's rules and regulations:
(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the
Company were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file
such reports.
All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to
such reports. Each annual report on Form 10-K will include a report on the Company's consolidated financial statements by the
Company's certified independent accountants. In addition, the Company will file a copy of each of the reports referred to in clauses
(1) and (2) above with the SEC for public availability within the time periods specified in the rules and regulations applicable to
such reports (unless the SEC will not accept such a filing) and will post the reports on its website within those time periods.
If, at any time after consummation of the exchange offer contemplated by the Registration Rights Agreement, the Company is
no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue
filing the reports specified in the preceding paragraph with the SEC within the time periods specified above unless the SEC will not
accept such a filing. The Company agrees that it will not take any action for the purpose of causing the SEC not to accept any such
filings. If, notwithstanding the foregoing, the SEC will not accept the Company's filings for any reason, the Company will post the
reports referred to in the preceding paragraph on its website within the time periods that would apply if the Company were required
to file those reports with the SEC.
In addition, the Company and the Guarantors agree that, for so long as any Notes remain outstanding, at any time they are
not required to file the reports required by the preceding paragraphs with the SEC, they will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information determinable from information contained therein,
including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely
exclusively on Officers' Certificates).
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers' Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view
to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of
any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description
of the event and what action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the American Institute of Certified Public
Accountants, the Company shall use commercially reasonable efforts to ensure that the year-end financial statements delivered
pursuant to Section 4.03 above shall be accompanied by a written statement of the Company's independent public accountants (who shall
be a firm of established national reputation) that in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe that the Company has violated any provisions of
Article 4 or Article 5 hereof or, if any such violation has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) So long as any of the Notes are outstanding, the Company will deliver to the Trustee, forthwith upon any Officer
becoming aware 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 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company
and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, 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 has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any payment on such Equity Interests in connection
with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its
Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any
merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the
Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or any Guarantee, except (i)
for scheduled payments of interest or principal at Stated Maturity thereof or (ii) in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase,
redemption, acquisition or retirement; or
(4) make any Restricted Investment (all such payments and other actions set forth in clauses (1) through (4) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(2) the Company would, after giving pro forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and
its Restricted Subsidiaries after the date hereof (excluding Restricted Payments permitted by clauses (2), (3), (6), (8),
(10) and (11) of paragraph (b) below and without duplication), is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning
of the first full fiscal quarter commencing after the date hereof to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are available to management at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds (plus the Fair Market Value of any Permitted Business contributed to the
common or preferred equity capital (other than Disqualified Stock) of the Company with such Fair Market Value being
determined as described below) received by the Company after the date hereof as a contribution to the Company's
capital or received by the Company from the issue or sale of Equity Interests of the Company (other than
Disqualified Stock) or of Disqualified Stock or debt securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the
Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified
Stock), provided that the Company shall only be entitled to use up to one third of the net cash proceeds from any
Equity Offering in any twelve-month period to make Restricted Payments, plus
(C) to the extent that any Restricted Investment that was made after the date hereof is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment, plus
(D) if any Unrestricted Subsidiary (i) is properly redesignated as a Restricted Subsidiary, the Fair Market Value of
such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its
redesignation or (ii) pays any cash dividends or cash distributions to the Company or any of its Restricted
Subsidiaries, 100% of any such cash dividends or cash distributions made after the date hereof.
(b) The provisions of Section 4.07(a) will not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration
such payment would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially
concurrent sale or issuance (other than to a Subsidiary of the Company) of, other Equity Interests of the Company (other
than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted
Payment will be excluded from clause (3)(B) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of Indebtedness of the Company or any Restricted
Subsidiary that is contractually subordinated to the Notes or to any Guarantee with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a
pro rata basis;
(5) the payment of dividends by the Company to X'Xxxxxxxx Holdings for the purpose of permitting the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests of X'Xxxxxxxx Holdings held by any current,
former or future officer, director or employee of the Company's (or any of its Restricted Subsidiaries) pursuant to any
equity subscription agreement, stockholders agreement or stock option agreement or other similar agreements; provided that
the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests pursuant to this clause
(5) shall not exceed $2.5 million in any calendar year (with unused amounts in any calendar year being carried over to
succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $5.0 million in any
calendar year); provided further that such amount in any calendar year may be increased by an amount not to exceed the
aggregate cash proceeds received by the Company from any issuance or reissuance of Equity Interests to any current or former
officer, director or employee of the Company and its Restricted Subsidiaries (provided that any such cash proceeds will be
excluded from clause 3(b) of the preceding paragraph and clause (2) of this paragraph) and the proceeds to the Company of
any "key man" life insurance policies; provided further that the cancellation of Indebtedness owing to the Company from any
current, former or future officers, directors or employees of the Company or any Restricted Subsidiary in connection with
such repurchase of Equity Interests will not be deemed to be a Restricted Payment;
(6) the payment by the Company of dividends to X'Xxxxxxxx Holdings for the purpose of (a) permitting X'Xxxxxxxx Holdings
to satisfy tax obligations that are actually due and owing, in accordance with the Tax Sharing Agreement as in effect on the
date hereof; provided that such amounts do not exceed the amounts that, without recognizing any tax loss carryforwards or
carrybacks or other tax attributes, such as alternative minimum tax carryforwards, would otherwise be due and owing if the
Company and its Restricted Subsidiaries were an independent, individual taxpayer and (b) permitting X'Xxxxxxxx Holdings to
pay the necessary fees and expenses to maintain its corporate existence and good standing and other general and
administrative expenses (which amount shall not exceed $500,000 per annum);
(7) so long as no Default or Event of Default has occurred and is continuing, the declaration and payment of dividends
on Disqualified Stock, the incurrence of which satisfied Section 4.09 hereof;
(8) repurchases of Equity Interests deemed to occur upon the exercise of stock options if such Equity Interests
represent a portion of the exercise price thereof;
(9) cash payments to X'Xxxxxxxx Holdings from and after November 30, 2004 to enable X'Xxxxxxxx Holdings to make interest
payments on the senior notes due 2009 of X'Xxxxxxxx Holdings in amounts not to exceed 12% per annum on the senior notes of
X'Xxxxxxxx Holdings issued on November 30, 2004 plus interest at the same rate on senior notes issued to pay interest
thereon; provided that, in each case, such cash payments are used within 30 days of such payment to make interest payments
on such senior notes; provided further that such payments will only be permitted if (i) no Default or Event of Default shall
have occurred and be continuing and (ii) the Company would be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof;
(10) repurchases of the Company's 13 3/8% Senior Subordinated Notes due 2009 in an aggregate amount not to exceed $10.0
million; provided that (i) no Default or Event of Default has occurred and is continuing and (ii) the purchase price paid by
the Company does not exceed 80% of the principal amount of the Notes; and
(11) other Restricted Payments in an aggregate amount not to exceed $2.5 million.
The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment
of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to
the Restricted Payment. The Fair Market Value of any non-cash Restricted Payment shall be determined in good faith by the Board of
Directors whose resolution with respect thereto shall be delivered to the Trustee. The Board of Directors' determination must be
based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such Fair
Market Value exceeds $10.0 million. The Fair Market Value of any Permitted Business contributed to the common or preferred equity
capital (other than Disqualified Stock) of the Company shall be determined in good faith by the Board of Directors whose resolution
with respect thereto shall be delivered to the Trustee if such Fair Market Value is in excess of $2.0 million; provided that such
determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national
standing if such Fair Market Value exceeds $10.0 million.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or
permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) (A) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (i) on its
Capital Stock or (ii) with respect to any other interest or participation in, or measured by, its profits; or (B) pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit Facilities as in effect on the date hereof, and any
amendments, modifications, restatements, renewals, increases, supplements, refundings, restructurings, replacements or
refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements,
refundings, restructurings, replacements or refinancings are no more restrictive, taken as a whole (as determined in the
good faith judgment of the Company's Board of Directors), with respect to such dividend and other payment restrictions than
those contained in such Existing Indebtedness as in effect on the date hereof;
(2) this Indenture, the Notes and the Guarantees;
(3) any applicable law, rule, regulation or order;
(4) any instrument of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of
such acquisition (except to the extent incurred in connection with or in contemplation of such acquisition), 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, provided that, in the case of Indebtedness, such Indebtedness
was permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with
past practices;
(6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the
property so acquired of the nature described in clause (3) of the preceding paragraph;
(7) Permitted Refinancing Indebtedness, provided that the material restrictions contained in the agreements governing
such Permitted Refinancing Indebtedness are no more restrictive, in the good faith judgment of the Company's Board of
Directors, taken as a whole, to the Holders of Notes than those contained in the agreements governing the Indebtedness being
refinanced;
(8) Liens permitted to be incurred under Section 4.12 hereof that limit the right of the debtor to dispose of the assets
subject to such Liens;
(9) contracts for the sale of assets, including without limitation customary restrictions with respect to a Subsidiary
pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary which limitation is only applicable to the assets that are the subject of such
agreements; and
(10) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the
ordinary course of business.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or any of the
Guarantors may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and the Guarantors may issue preferred stock
if the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial
statements are available to management immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have been at least 2.25 to 1 determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or
preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(1) the incurrence by the Company of additional Indebtedness and letters of credit under Credit Facilities in an
aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to
exceed the greater of (x) $40.0 million or (y) the amount of the Borrowing Base as of the date of such incurrence; provided
that the aggregate principal amount at any one time outstanding under this clause (1) may not exceed $60.0 million;
(2) the incurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the Guarantees to be
issued on the date hereof and the Exchange Notes and the related Guarantees to be issued pursuant to the Registration Rights
Agreement;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or
any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business
of the Company or such Restricted Subsidiary (whether through the direct purchase of assets or the Capital Stock of any
Person owning such Assets), in an aggregate principal amount or accreted value, as applicable, including all Permitted
Refinancing Indebtedness issued to refund, replace or refinance any Indebtedness incurred pursuant to this clause (4), not
to exceed $7.5 million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to refund, refinance, replace, purchase, defease or discharge
Indebtedness that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (3), (4) and
(12) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among
the Company and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the
Company, or the Guarantee of such Guarantor, in the case of a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be
deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary,
as the case may be;
(7) the incurrence by the Company or its Restricted Subsidiaries of Hedging Obligations in the ordinary course of
business and not for speculative purposes;
(8) the Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred by another provision of this covenant, provided that if the
Indebtedness being guaranteed is subordinated to the Notes or any Guarantee, then the Guarantee shall be subordinated to the
same extent as the Indebtedness guaranteed;
(9) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; provided, however, that if any such
Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an
incurrence of Indebtedness by a Restricted Subsidiary of the Company;
(10) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations
with respect to letters of credit issued in the ordinary course of business, including without limitation, to letters of
credit in respect to workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement
type obligations regarding workers' compensation claims; provided, however, that upon the drawing of such letters of credit
or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(11) obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business; and
(12) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this
clause (12), not to exceed $10.0 million.
The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is
also contractually subordinated in right of payment to the Notes and the applicable Guarantee on substantially identical terms;
provided, however, that no Indebtedness of the Company will be deemed to be contractually subordinated in right of payment to any
other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Debt described in clauses (1) through (12) above or is entitled to be
incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness on the date of its
incurrence in any manner that complies with this covenant. In addition, the Company may, at any time, change the classification of
an item of Indebtedness (or any portion thereof) to any other clause or to Section 4.09(a) provided that the Company would be
permitted to incur such item of Indebtedness (or portion thereof) pursuant to such other clause or Section 4.09(a) hereof, as the
case may be, at such time of reclassification. The accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends
on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence
of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this covenant, the maximum
amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency values.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such asset at the date of determination, and
(B) the amount of the Indebtedness of the other Person.
Section 4.10 Asset Sales.
The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale
at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) at least 85% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents. For purposes of this provision, each of the following shall be deemed to be cash:
(A) any liabilities (as shown on the Company's or the Restricted Subsidiary's most recent balance sheet) of the Company
or any Restricted Subsidiary that are assumed by the transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary from further liability (except liabilities that
are by their terms subordinated to the Notes or any Guarantee);
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90
days after the closing of such Asset Sale (to the extent of the cash or Cash Equivalents received in that
conversion); and
(C) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10; and
(3) in the case of a sale or other disposition of Note Priority Lien Collateral, the Trustee is immediately granted a
perfected first priority security interest (subject to Permitted Prior Liens) in the Net Proceeds therefor received by the
Company or such Restricted Subsidiary as additional Note Priority Lien Collateral under the Security Documents to secure the
Notes and the Net Proceeds are deposited in the Asset Sales Proceeds Account or paid directly to the Trustee to be held in
trust and applied by the Company as permitted under this Indenture.
The 85% limitation referred to in clause (2) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of
the consideration received therefrom, determined in accordance with the preceding proviso, is equal to or greater than what the
after-tax proceeds would have been had such Asset Sale complied with the aforementioned 85% limitation.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, other than a sale of Note Priority Lien
Collateral, the Company or any such Restricted Subsidiary may apply such Net Proceeds, at its option:
(1) to repay or repurchase Indebtedness and other Obligations under a Credit Facility and to correspondingly permanently
reduce the commitments with respect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after
giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the
Company;
(3) to make capital expenditures in a Permitted Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a
Permitted Business.
Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving Indebtedness under Credit
Facilities or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales, other than a sale of Note Priority Lien Collateral, that are not applied or invested as
provided in the preceding paragraph will constitute Excess Proceeds. When the aggregate amount of Excess Proceeds from Asset Sales,
other than a sale of Note Priority Lien Collateral, exceeds $10.0 million, the Company will be required to make an offer to all
Holders of Notes and to all holders of other Indebtedness that ranks equally with the Notes containing provisions similar to those
set forth herein with respect to offers to purchase or redeem with the proceeds from sales of assets (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of such Excess
Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount at maturity plus accrued and unpaid
interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any such Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for general corporate purposes or any other
purpose not prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered
into such Asset Sale Offer exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness
tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Within 60 days after the receipt of any Net Proceeds from an Asset Sale constituting Note Priority Lien Collateral, the
Company will be required to make an Asset Sale Offer to purchase the maximum principal amount of Notes that may be purchased out of
such Net Proceeds. The offer price in any such Asset Sale Offer will be equal to 102% of principal amount at maturity plus accrued
and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. If any such Net Proceeds
remain after consummation of any such Asset Sale Offer, the Company may use such Net Proceeds for general corporate purposes or any
other purpose not prohibited by this Indenture, free and clear of all Liens created by any Security Documents. If the aggregate
principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of such Net Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis based on the principal amount of Notes tendered.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to
an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of
Sections 3.09 or 4.10 of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or
make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary
with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $2.0 million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (1) above and that such Affiliate
Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, an opinion as to the fairness to the holders of such Affiliate Transaction
from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the
provisions of Section 4.11(a):
(1) customary directors' fees, indemnification or similar arrangements or any employment agreement or other compensation
plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Restricted Subsidiary;
(2) transactions between or among the Company and/or its Restricted Subsidiaries;
(3) Restricted Payments that are permitted by Section 4.07 hereof;
(4) customary loans or advances to employees not to exceed $2.0 million in the aggregate at any one time outstanding;
(5) transactions pursuant to any contract or agreement in effect on the date hereof as the same may be amended, modified
or replaced from time to time so long as any such amendment, modification or replacement is no less favorable to the Company
and its Restricted Subsidiaries than the contract or agreement as in effect on the date hereof; and
(6) management or similar fees payable to BRS or an Affiliate thereof pursuant to the Management Services Agreement as
in effect on the date hereof; provided that the right of BRS or an Affiliate to receive cash payments pursuant to the
Management Services Agreement shall be conditional and contingent upon the Fixed Charge Coverage Ratio for the four most
recently ended full fiscal quarters for which internal financial statements are available to management immediately
preceding any payment date being at least 2.0 to 1 (provided that any payments to which BRS or an Affiliate has no right to
receive shall be paid in cash only at the time, if any, such payments are permitted pursuant to the Fixed Charge Coverage
Ratio test above).
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist any
Lien of any kind on any asset now owned or hereafter acquired, except Permitted Liens.
Section 4.13 Business Activities.
The Company will not, and will not permit any Restricted Subsidiary to, engage in any business other than a Permitted
Business, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all things reasonably necessary to preserve and keep
in full force and effect:
(1) its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any
such Subsidiary; and
(2) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Company will make an offer (a "Change of Control Offer") to each
Holder to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000) of each Holder's Notes at a purchase price
equal to 101% of the aggregate principal amount at maturity thereof plus accrued and unpaid interest and Additional Interest, if any,
on the Notes repurchased, if any, to the date of purchase, subject to the rights of Holders of Notes on the relevant record date to
receive interest due on the relevant interest payment date (the "Change of Control Payment"). Within 60 days following any Change of
Control, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of
Control and stating:
(1) that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be
accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or
transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business
on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a
result of a Change in Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions
of Sections 3.09 or 4.15 of this Indenture, the Company will comply with the applicable securities laws and regulations and will not
be deemed to have breached its obligations under Section 3.09 or this Section 4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions
of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions thereof being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes,
and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of
Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.15 and Section 3.09 hereof and purchases all Notes validly
tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07
hereof, unless and until there is a default in payment of the applicable redemption price.
Section 4.16 Capital Expenditures.
The Company will not, and will not permit any of its Restricted Subsidiaries to, make or commit to make any Capital
Expenditure, except (a) Capital Expenditures of the Company and its Restricted Subsidiaries not exceeding $10.0 million in any fiscal
year (with up to $5.0 million of unused amounts in any fiscal year being carried over for expenditure in the next succeeding fiscal
year) and (b) Capital Expenditures made with the Net Proceeds of Asset Sales; provided that the Company has complied with Section
4.10 hereof. Notwithstanding the foregoing, if on any date following the date hereof, the Consolidated Cash Flow of the Company and
its Restricted Subsidiaries for any fiscal year exceeds $50.0 million, then, beginning on that day and subject to the provisions of
the following sentence, the restriction on Capital Expenditures set forth above will no longer be applicable to the Notes.
Notwithstanding the foregoing, if the Consolidated Cash Flow of the Company and its Restricted Subsidiaries for any subsequent fiscal
year is less than $50.0 million, the foregoing restriction on Capital Expenditures will be reinstituted as of and from the end of
such fiscal year.
Section 4.17 Off-Balance Sheet Transactions.
The Company will not, and will not permit any of its Restricted Subsidiaries, to engage in any Off-Balance Sheet
Transactions.
Section 4.18 No Amendment of Subordination Provisions in Existing Subordinated Notes.
Without the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, the
Company will not amend, modify or alter the Subordinated Note Indenture in any way to:
(1) increase the principal of, advance the final maturity date of or shorten the Weighted Average Life to Maturity of
any Subordinated Notes;
(2) alter the redemption dates of, or increase the price at which the Company is required to offer to purchase, any
Subordinated Notes; or
(3) amend the provisions of Article 10 of the Subordinated Note Indenture (which relate to subordination).
Section 4.19 Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback
transaction; provided that the Company or any Restricted Subsidiary may enter into a sale and leaseback transaction if:
(1) the Company or such Restricted Subsidiary could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction pursuant to Section 4.09 hereof and (b) incurred a Lien to
secure such Indebtedness pursuant to Section 4.12 hereof;
(2) the gross cash proceeds of that sale and leaseback transaction are at least equal to the Fair Market Value, as
determined in good faith by the Board of Directors and set forth in an Officers' Certificate delivered to the Trustee, of
the property that is the subject of such sale and leaseback transaction; and
(3) the transfer of assets in such sale and leaseback transaction is permitted by, and the Company or such Restricted
Subsidiary applies the proceeds of such transaction in compliance with, Section 4.10 hereof.
Section 4.20 Additional Note Guarantees.
If the Company shall acquire or create a Domestic Restricted Subsidiary after the date hereof or if any Subsidiary of the
Company becomes a Domestic Restricted Subsidiary of the Company after the date hereof, then such newly acquired or created Domestic
Restricted Subsidiary shall become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel, in accordance
with the terms of this Indenture. The form of such Note Guarantee is attached as Exhibit E hereto.
Section 4.21 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors may designate any Restricted Subsidiary that is not a Significant Subsidiary to be an Unrestricted
Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary,
all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the
Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation (to the extent not designated a
Permitted Investment) and will reduce the amount available for Restricted Payments under Section 4.07 hereof. All such outstanding
Investments will be valued at their Fair Market Value at the time of such designation, as determined in good faith by the Board of
Directors. That designation will only be permitted if such Restricted Payment would be permitted at that time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted
Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with
the Trustee a certified copy of the resolutions of the Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at
any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of
such date by Section 4.09 hereof, the Company will be in default of such covenant. The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary
and such designation will only be permitted if (1) such Indebtedness is permitted by Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
Section 4.22 Further Assurances Regarding Collateral.
The Company and the Guarantors shall execute, acknowledge and deliver the following Note Security Documents, in form and
substance reasonably satisfactory to the Initial Purchaser, the Trustee and the Company, within 45 days of the date of this Indenture:
(1) mortgages covering all real property required to secure the Notes;
(2) title insurance and surveys with respect to all real property required to secure the Notes, subject to customary
exceptions;
(3) UCC-1 financing statement with respect to any fixtures;
(4) UCC-3 termination statements releasing all Liens on the Collateral, except Permitted Liens;
(5) a Control Agreement covering any Asset Sales Proceeds Account and securities account of the Company and the
Guarantors;
(6) a certificate of insurance naming the Trustee, on behalf of the Holders of the Notes, as a loss payee;
(7) an assignment of business interruption insurance; and
(8) any third party waivers and consents from landlords and/or lessors required to be delivered by the Credit Agreement
Agent under the Credit Agreement; provided that any failure to deliver such waivers and consent shall constitute an Event of
Default only in the event that the Credit Agreement Agent declares an Event of Default under the Credit Agreement.
In addition, at any time and from time to time, the Company shall, and shall cause each of its Subsidiaries to, promptly execute,
acknowledge and deliver such other Note Security Documents, instruments, certificates, notices and other documents and take such
other actions as are necessary or as the Trustee may reasonably request to create, perfect, protect, assure or enforce the Liens
securing Note Obligations and benefits intended to be conferred as contemplated by this Indenture for the benefit of the holders of
Note Obligations. In connection with delivering such Note Security Documents, the Company and the Subsidiaries shall cause its
counsel to deliver such opinions, in form and substance reasonably satisfactory to the Trustee, as the Trustee may reasonably request.
Notwithstanding any provision in the Indenture to the contrary, failure by the Company or any of its Restricted Subsidiaries
for 15 days after notice from the Trustee or Holders of at least 25% in principal amount of the Notes then outstanding to comply with
this Section 4.22 shall constitute an Event of Deafult.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company shall not consolidate or merge with or into another Person (whether or not the Company is the surviving
corporation) or sell, assign, transfer, convey or otherwise dispose of all or substantially all of its properties or assets, in one
or more related transactions, to another Person unless:
(1) either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a corporation organized or existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the entity or Person formed by or surviving any such consolidation or merger (if other than the Company) or the
entity or Person to which such sale, assignment, transfer, conveyance or other disposition shall have been made assumes all
the obligations of the Company under the Notes, this Indenture, the Registration Rights Agreement and the Security Documents
in a supplemental indenture reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of Default exists; and
(4) the Company or the entity or Person formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, assignment, transfer, conveyance or other disposition shall have been made:
(A) will, after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in paragraph (a) of Section 4.09 hereof; or
(B) would (together with its Restricted Subsidiaries) have a higher Fixed Charge Coverage Ratio immediately after such
transaction (after giving pro forma effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period) than the Fixed Charge Coverage Ratio of the Company and its subsidiaries immediately
prior to the transaction.
The preceding clause (4) will not prohibit a merger between the Company and a Restricted Subsidiary so long as the amount of
Indebtedness of the Company and its Restricted Subsidiaries is not increased thereby.
In addition, the Company may not, directly or indirectly, lease all or substantially all of its properties or assets, in one
or more related transactions, to any other Person. This Section 5.01 will not apply to (a) a merger of the Company with an Affiliate
solely for the purpose of reincorporating the Company in another jurisdiction or (b) a sale, assignment, transfer, conveyance or
other disposition of assets between or among the Company and any of its Restricted Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section
5.01 hereof, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor corporation and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest on the
Notes except in the case of a sale of all of the Company's assets in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of interest on, or Additional Interest with respect to, the Notes;
(2) default in the payment when due of the principal of or premium, if any, on the Notes;
(3) failure by the Company to comply with Section 4.10, 4.15 or 5.1 hereof;
(4) failure by the Company for 60 days after notice from the Trustee or Holders of at least 25% in principal amount of
the Notes then outstanding to comply with Section 4.07, 4.09 or any other covenant, representation, warranty or other
agreement in this Indenture or the Notes;
(5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries) whether such Indebtedness or Guarantee now exists,
or is created after the date hereof, if that default:
(A) is caused by a failure to pay principal on such Indebtedness at final maturity (a "Payment Default"); or
(B) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated,
aggregates $7.5 million or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $7.5
million, which judgments are not paid, discharged or stayed for a period of 60 days;
(7) breach by the Company, any of its Restricted Subsidiaries or any other Obligor of any material representation or
warranty or agreement in the Security Documents, the repudiation by the Company, any of its Restricted Subsidiaries or any
other Obligor of any of their respective obligations under the Security Documents or the unenforceability of the Security
Documents against the Company, any of its Restricted Subsidiaries or any other Obligor for any reason;
(8) except as permitted by this Indenture, any Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any Guarantor shall deny or disaffirm its
obligations under its Guarantee; and
(9) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary pursuant to or within the
meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a custodian of it or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due;
(10) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary in an
involuntary case;
(B) appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or
for all or substantially all of the property of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary; or
(C) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (9) or (10) of Section 6.01 hereof, with respect to the Company or
any of its Restricted Subsidiaries that is a Significant Subsidiary the principal amount at maturity of all outstanding Notes will
become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal amount at maturity
of all the Notes to be due and payable immediately.
Upon any such declaration, the Notes shall become due and payable immediately.
The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may,
on behalf of all of the Holders, rescind an acceleration or waive any existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of interest or Additional Interest, if any, on the
principal of, the Notes.
In the case of any Event of Default occurring by reason of any willful action or inaction taken or not taken by or on behalf
of X'Xxxxxxxx with the intention of avoiding payment of the premium that X'Xxxxxxxx would have had to pay if X'Xxxxxxxx then had
elected to redeem the notes pursuant to the optional redemption provisions of the indenture, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by law upon the acceleration of the notes. If an Event of Default occurs
prior to October 1, 2006 by reason of any willful action (or inaction) taken (or not taken) by or on behalf of X'Xxxxxxxx with the
intention of avoiding the prohibition on redemption of the notes prior to October 1, 2006, then the Applicable Premium shall also
become immediately due and payable to the extent permitted by law upon the acceleration of the notes.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of
principal, premium and Additional Interest, if any, and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding 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 Holder of a Note 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. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may
on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of interest or Additional Interest, if any, on the principal of, the Notes.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability.
Section 6.06 Limitation on Suits.
Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder of a note may
pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the outstanding Notes have requested the Trustee to pursue
the remedy;
(3) such Holders have offered the Trustee security or indemnity reasonably satisfactory to it against any loss,
liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or
indemnity; and
(5) Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction
inconsistent with such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference
or priority over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal,
premium and Additional Interest, if any, and interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder; provided that a Holder shall not have the
right to institute any such suit for the enforcement of payment if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, under applicable law, result in the surrender, impairment, waiver or loss of the Lien of this
Indenture upon any property subject to such Lien.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as Trustee of an express trust against the Company for the whole amount of principal of, premium and
Additional Interest, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest 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 Claim.
The Trustee is authorized to 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 the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment
of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. 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, 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 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of
all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium and Additional
Interest, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Additional Interest, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes 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 a Trustee, a court in its discretion may 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 a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in its 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 duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities 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 will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will 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 hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability. The
Trustee will be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders,
unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or
presented 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 require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel
will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys or independent contractors and the Trustee shall not be responsible for any misconduct or negligence on
the part of any agent, attorney or independent contractor appointed with due care by it hereunder.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company
will be sufficient if signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders unless such Holders have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee will not be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it will be entitled to examine the books, records, and premises of the Company, personally or by agent or attorney at
the sole cost of the Company and shall incur no additional liability of any kind by reason of such inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and the Indenture.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to
each agent, custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Issuer deliver an Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate
may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue
as trustee (if this Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties.
The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Company's use of the proceeds from the Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee will mail to
Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, premium or Additional Interest, if any, or interest on, any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15 following the date of this Indenture, and for so long as
Notes remain outstanding, the Trustee will mail to the Holders of the Notes a brief report dated as of such reporting date that
complies with TIAss. 313(a) (but if no event described in TIAss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also will comply with TIAss. 313(b)(2). The Trustee will also transmit by mail all
reports as required by TIAss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders of Notes will be mailed by the Trustee to the
Company and filed by the Trustee with the SEC and each stock exchange on which the Notes are listed in accordance with TIAss. 313(d).
The Company will promptly notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time such compensation for its acceptance of this Indenture and all
services hereunder as the parties may agree in writing from time to time. The Trustee's compensation will not be limited by any law
on compensation of a trustee of an express trust. The Company will reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee and its predecessor Trustee and their respective agents
against any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company,
the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability, claim, damage or expense may be attributable to its negligence or
willful misconduct. The Trustee will notify the Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder. The Company
or such Guarantor will defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate counsel and the
Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement
made without its consent, which consent will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and
discharge of this Indenture.
(d) To secure the Company's and the Guarantors' payment obligations in this Section 7.07, the Trustee will have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest
on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(9) or (10)
hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIAss. 313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) 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;
(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company
will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee (at the Company's expense), the Company, or the Holders of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply
with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the
Company. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have
all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business
to, another corporation, the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the
United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIAss. 310(a)(1), (2) and (5). The Trustee is
subject to TIAss. 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIAss. 311(a), excluding any creditor relationship listed in TIAss. 311(b). A Trustee who has
resigned or been removed shall be subject to TIAss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers' Certificate,
and at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of
the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company and the
Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the
Note Guarantees), which will thereafter be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in clauses (a) and (b) below, and to have satisfied all their other obligations under such
Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged
hereunder:
(a) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or
premium and Additional Interest, if any, on such Notes when such payments are due from the trust referred in Section 8.04 hereof;
(b) the Company's obligations with respect to the Notes under Article 2 and Section 4.02 hereof;
(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Company's obligations in connection
therewith; and
(d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of
the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their
obligations under the covenants contained in Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16,
4.17, 4.18, 4.19, 4.20, 4.21, 4.22 and 4.23 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but will continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply
with and will 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 will not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees will be
unaffected thereby. In addition, upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.03
hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(5) hereof will
not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash
in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and premium
and Additional Interest, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as
the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption
date;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (b) since the date hereof, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to
customary assumptions and exclusions, the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, 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 same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default
under any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, which opinion may be
subject to customary assumptions and exclusions, each stating that all conditions precedent relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and noncallable Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant to Section
8.04 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying
Agent) 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 and Additional Interest, if any, and interest, but such money need not be segregated from other funds except to the extent
required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash
or noncallable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time
upon the request of the Company any money or noncallable Government Securities held by it as provided in Section 8.04 hereof which,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium or Additional Interest, if any, or interest on any Note and remaining unclaimed for two years after such
principal, premium or Additional Interest, if any, or interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, will thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein,
which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or noncallable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then the Company's and the Guarantors' obligations under
this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium
or Additional Interest, if any, or interest on any Note following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee may amend or supplement this
Indenture, the Note Guarantees or the Notes without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of the Company's obligations to Holders of Notes in the case of a merger or
consolidation or the sale of all or substantially all of the Company's assets;
(4) to make any change that would provide any additional rights or benefits to the Holders of Notes or that does not
adversely affect the legal rights hereunder of any such Holder;
(5) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the
Trust Indenture Act or to allow any Subsidiary to guarantee the Notes;
(6) to make, complete or confirm any grant of Collateral permitted or required by the Security Documents or this
Indenture or any release of Collateral that becomes effective as set forth in the Security Documents or this Indenture; or
(7) to conform the text of this Indenture, the Notes, the guarantees or the Security Documents to any provision of the
Description of the Notes in the offering circular, dated September 25, 2003, relating to the Notes to the extent that such
provision in the Description of the Notes was intended to be a verbatim recitation of a provision of this Indenture, the
Notes or the guarantees.
Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee
will join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities
under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture
(including, without limitation, Section 3.09, 4.10 and 4.15 hereof), any supplemental indenture, any Security Document, the Note
Guarantees and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding
voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for,
or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium or Additional Interest, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture,
the Note Guarantees or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes). Section 2.08 hereof shall determine which Notes are considered to be "outstanding" for purposes of this
Section 9.02.
Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will
join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or
supplemental indenture directly affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.
It is not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any
proposed amendment or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders of
Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Notes
then outstanding voting as a single class may waive compliance in a particular instance by the Company with any provision of this
Indenture, the Notes, or the Note Guarantees. However, without the consent of each Holder affected, an amendment, supplement or
waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to the
redemption of the Notes (other than as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof);
(3) reduce the rate of or change the time for payment of interest on any Note;
(4) waive a Default or Event of Default in the payment of principal of, or interest or premium, or Additional Interest,
if any, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of
Notes to receive payments of principal of, or interest or premium, or Additional Interest, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other than a payment required by Sections 3.09, 4.10 or 4.15
hereof);
(8) make any change in the preceding amendment and waiver provisions;
(9) release any Guarantor from any of its obligations under its Guarantee of the Notes or this Indenture, except in
accordance with the terms of the Indenture; or
(10) release any of the Collateral except in accordance with the terms of the Security Documents.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be set forth in a amended or supplemental indenture that
complies 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 of a Note is a continuing consent by
the Holder of a Note and every subsequent Holder of a Note or portion of a 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 of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or
supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an
amended or supplemental indenture until the Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee will be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the
documents required by Section 12.04 hereof, an Officers' Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture.
ARTICLE 10.
Intercreditor Provisions
Relating to Credit Agreement
Section 10.01 Ranking of Liens.
Notwithstanding anything to the contrary contained in the Security Documents, the time of incurrence of any Secured
Obligation, the order or method of attachment or perfection of any Lien securing any Secured Obligation, the time or order of filing
or recording of financing statements, mortgages or other documents filed or recorded to perfect any Lien securing any Secured
Obligations, the time of taking possession or control over any Collateral or the rules for determining priority under any law
governing relative priorities of Liens:
(1) all Liens at any time granted as security for any Credit Agreement Obligations attaching to any property
constituting Note Priority Lien Collateral will be in all respects subject and subordinate to all Liens at any time granted
attaching to such property as security for Note Obligations, and
(2) all Liens at any time granted as security for any Note Obligations attaching to any property constituting Credit
Agreement Priority Lien Collateral will be in all respects subject and subordinate to all Liens at any time granted
attaching to such property as security for any Credit Agreement Obligations.
If any cash or Cash Equivalents constituting Credit Agreement Priority Lien Collateral are converted into, or invested in,
property constituting Note Priority Lien Collateral at any time when the Trustee has not received written notice from the Credit
Agreement Agent or any holder of Credit Agreement Obligations stating that the Indebtedness outstanding under the Credit Agreement
has become due and payable in full (whether at maturity, upon acceleration or otherwise) or that such conversion or investment
violates the provisions of the Credit Agreement, then concurrently with such conversion or investment all Liens upon such cash or
Cash Equivalents or such property securing Credit Agreement Obligations shall lose their priority over, and shall become subject and
subordinate to, all Liens securing Note Obligations. If any cash or Cash Equivalents constituting Credit Agreement Priority Lien
Collateral are converted into, or invested in, property constituting Note Priority Lien Collateral at any time when the Trustee has
received the written notice set forth above, then all Liens upon such cash or Cash Equivalents or such property securing Note
Obligations shall remain subject and subordinate to all Liens thereon securing Credit Agreement Obligations.
If any cash or Cash Equivalents constituting Note Priority Lien Collateral are converted into, or invested in, property
constituting Credit Agreement Priority Lien Collateral at any time when the Credit Agreement Agent has not received written notice
from the Trustee or any Holder of Notes stating that the Notes have become due and payable in full (whether at maturity, upon
acceleration or otherwise) or that such cash or Cash Equivalents are required by this Indenture to be deposited in an Asset Sale
Proceeds Account or that such conversion or investment violates the provisions of this Indenture, then concurrently with such
conversion or investment all Liens upon such cash or Cash Equivalents or such property securing Note Obligations shall lose their
priority over, and shall become subject and subordinate to, all Liens securing Credit Agreement Obligations. If any cash or Cash
Equivalents constituting Note Priority Lien Collateral are converted into, or invested in, property constituting Credit Agreement
Priority Lien Collateral at any time when the Credit Agreement Agent has received the written notice set forth above, then all Liens
upon such cash or Cash Equivalents or such property securing Credit Agreement Obligations shall remain subject and subordinate to all
Liens thereon securing Note Obligations.
Section 10.02 Payments from Proceeds of Collateral.
The holders of Note Obligations shall be entitled to receive and retain, free from all Liens thereon securing Credit
Agreement Obligations, all payments made in cash by the Company or any other Obligor and all amounts received with respect to Note
Obligations through the exercise of a set-off or other similar right, even if such cash constitutes property or proceeds of property
subject to a Lien securing Credit Agreement Obligations, if such payment is made at any time when the Trustee has not received
written notice from the Credit Agreement Agent or any holder of Credit Agreement Obligations stating that the Indebtedness
outstanding under the Credit Agreement has become due and payable in full (whether at maturity, upon acceleration or otherwise) or
that such payment or the application of such amount violates or would violate the provisions of the Credit Agreement.
The holders of Credit Agreement Obligations shall be entitled to receive and retain, free from all Liens thereon securing
Note Obligations, all payments made in cash by the Company or any other Obligor and all amounts received with respect to Credit
Agreement Obligations through the exercise of a set-off or other similar right, even if such cash constitutes property or proceeds of
property subject to a Lien securing Note Obligations, if such payment is made at any time when the Credit Agreement Agent has not
received written notice from the trustee or any holder of notes stating that the notes have become due and payable in full (whether
at maturity, upon acceleration or otherwise) or that such payment or the application of such amount violates or would violate the
provisions of the Indenture.
Section 10.03 Foreclosure on Common Stock of the Company.
The Trustee has agreed to not foreclose or exercise voting rights upon the outstanding Company common stock that
comprises the Note Priority Lien Collateral until the date which is at least 60 days following the date on which all of the Notes
have been declared to be due and payable immediately by the Trustee or Holders of at least 25% in principal amount of the then
outstanding Notes or immediately prior to the filing of an Insolvency or Liquidation Proceeding.
Section 10.04 Consent to License to Use Intellectual Property; Access to Information; Access to Real Property to Process and Sell
Inventory.
The Trustee consents (without making any representation or warranty or undertaking any obligation whatsoever) to any grant
by any Obligor to the Credit Agreement Agent of a non-exclusive royalty-free license to use any patent, trademark, other general
intangible or proprietary information of such Obligor that is subject to a consensual Lien held by the Trustee, in connection with
the enforcement of any consensual Lien held by the Credit Agreement Agent upon any Inventory of the Company or any Obligor or to
manufacture, produce, complete, remove or sell any such Inventory in any lawful manner. The consent shall be binding on the
successors and assigns of the Trustee, including a purchaser of the patent, trademark, other general intangible or proprietary
information subject to such license at a foreclosure sale conducted in foreclosure of any Lien thereon securing Note Obligations.
The Liens of the Note Security Documents are subordinate to any such license.
If the Trustee or a purchaser at a foreclosure sale conducted in foreclosure of any Lien securing Note Obligations takes
actual possession of any documentation of the Company or an Obligor (whether such documentation is in the form of a writing or is
stored in any data equipment or data record in the physical possession of the Trustee or the foreclosure purchaser), then upon
request of the Credit Agreement Agent and reasonable advance notice, the Trustee or such foreclosure purchaser will permit the Credit
Agreement Agent or its representative to inspect and copy such documentation if and to the extent the Credit Agreement Agent
certifies to the Trustee with respect to any such documentation other than such documents showing the aging of Accounts or payables
(including in each case, the name and address of the account party under such Account or payable) or that lists Inventory that:
(1) such documentation contains or may contain information necessary or appropriate, in the good faith opinion of the Credit
Agreement Agent, to the enforcement of any Lien securing Credit Agreement Obligations; and
(2) the Credit Agreement Agent and the holders of Credit Agreement Obligations are entitled to receive and use such
information as against the Company and the Subsidiaries and their suppliers, customers and contractors and under applicable
law and, in doing so, will comply with all obligations imposed by law or contract in respect of the disclosure or use of
such information.
If, upon enforcement of any Lien held by the Trustee as security for Note Obligations, the Trustee or a purchaser at a
foreclosure sale conducted in foreclosure of such Lien takes actual possession of any real property of any Obligor or delivers actual
possession of any such real property to a lessee under a lease made by it as lessor, then, if so requested by the Credit Agreement
Agent and upon reasonable advance notice, the Trustee will, or will cause such foreclosure purchaser or lessee to, allow the Credit
Agreement Agent and its officers, employees and agents (but not any of its transferees) reasonable and non-exclusive access to and
use of such real property and any equipment and fixtures thereon, for a period not exceeding 120 consecutive calendar days (the
"Processing and Sale Period"), as necessary or reasonably appropriate to manufacture, produce, complete, remove or sell, in any lawful
manner, any Inventory upon which the Credit Agreement Agent holds a Lien, subject to the following conditions and limitations:
(1) the Processing and Sale Period shall commence on the date the Trustee or, if the Trustee has not taken possession, any
such foreclosure purchaser or any lessee takes possession of such real property and shall terminate on the earlier of (i)
the day which is 120 days thereafter and (ii) the day on which all Inventory (other than Inventory that the Credit Agreement
Agent has acknowledged in writing has been abandoned by the Credit Agreement Agent) has been removed from such real
property; and
(2) each of the Trustee and foreclosure purchaser shall be entitled, as a condition of permitting such access and use,
to demand and receive assurances reasonably satisfactory to it that the access or use requested and all activities
incidental thereto:
(A) will be permitted, lawful and enforceable as against the Company and any Obligor and their suppliers, customers and
contractors and under applicable law and will be conducted in accordance with prudent manufacturing practices; and
(B) will be adequately insured for damage to property and liability to persons, including property and liability
insurance for the benefit of the Trustee and the holders of Note Obligations, at no cost to the Trustee or such
holders.
The Trustee will, and will cause any such foreclosure purchaser or lessee to, provide reasonable cooperation, reasonable
support and reasonable assistance to the Credit Agreement Agent in connection with the manufacture, production, completion, removal
and sale of any Inventory by the Credit Agreement Agent as provided above, and the Trustee or any such foreclosure purchaser or
lessee shall be entitled to receive, from the Credit Agreement Agent, fair compensation and reimbursement for their reasonable costs
and expenses incurred in connection with such cooperation, support and assistance. Neither the Trustee nor any such foreclosure
purchaser or lessee, nor any transferee or successor of any of them shall otherwise in any respect be required to manufacture,
produce, complete, remove, insure, protect, store, safeguard, sell or deliver any Inventory subject to any Lien held by the Credit
Agreement Agent or to provide any support, assistance or cooperation to the Credit Agreement Agent in respect thereof.
The Trustee, as mortgagee, will not object to the Credit Agreement Agent and its officers, employees and agents (but not any
of its transferees) manufacturing, producing, completing, removing or selling, in any lawful manner, any Inventory upon which the
Credit Agreement Agent holds a Lien in accordance with the provisions set forth above. If, pursuant to applicable law, prior notice
of any action described in this Section 10.04 is required to be given to the Trustee, the minimum time required by such applicable
law, or ten (10) business days if no minimum is specified, shall be deemed a reasonable notice period.
Section 10.05 Restriction on Enforcement of Subordinate Liens.
Subject to Section 10.12 hereof and subject to clauses (a) through (e) of this Section 10.05, the Trustee will not (and will
not authorize or direct any Person acting for it or any holder of Note Obligations to) take any action to enforce, collect or realize
upon any Subordinate Lien attached to any property constituting Credit Agreement Priority Lien Collateral as security for any Note
Obligation, and the Credit Agreement Agent will not (and will not authorize or direct any Person acting for it or any holder of
Credit Agreement Obligations to) take any action to enforce, collect or realize upon any Subordinate Lien attached to any property
constituting Note Priority Lien Collateral as security for any Credit Agreement Obligation, in each case including, without
limitation, any right, remedy or action to:
(1) take possession of or control over such property;
(2) exercise any collection rights in respect of such property or retain any proceeds of Accounts and other obligations
receivable paid to it directly by any account debtor;
(3) exercise any right of set-off against such property;
(4) foreclose upon such property or take or accept any transfer of title to such property in lieu of foreclosure;
(5) enforce any claim to the proceeds of insurance upon such property;
(6) deliver any notice, claim or demand relating to such property to any Person (including any securities intermediary,
depositary bank or landlord) in the possession or control of such property or acting as bailee, custodian or agent for any
holder of Liens in respect of such property;
(7) otherwise enforce any remedy available upon default for the enforcement of any Lien upon such property;
(8) deliver any notice or commence any proceeding for any of the foregoing purposes; or
(9) seek relief in any Insolvency or Liquidation Proceeding permitting it to do any of the foregoing,
except that, in any event, any and all such actions may be taken, authorized or instructed and all rights and remedies for the
enforcement, collection, foreclosure or realization of a Subordinate Lien may be exercised and enforced, in each case without any
limitation or restriction whatsoever:
(a) by the Trustee with respect to the Credit Agreement Priority Lien Collateral, at any time after the Discharge of Credit
Agreement Indebtedness;
(b) by the Credit Agreement Agent with respect to the Note Collateral, at any time after all Liens securing Note
Obligations are released, in whole as to all property of the Company and the other Obligors as provided in Section 11.4 hereof;
(c) as necessary to redeem any property in a creditor's redemption permitted by law or to deliver any notice or demand
necessary to enforce any right to claim, take or receive proceeds of such property remaining after payment in full of all Obligations
secured by Priority Liens attached to such property, in the event of foreclosure or other enforcement of any prior Lien (including
Priority Liens), so long as the enforcement of any Priority Lien is not materially affected or delayed;
(d) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control;
or
(e) as necessary to prove (but not enforce) any Subordinate Lien or any Obligation secured thereby or as necessary to
preserve or protect (but not enforce) any Subordinate Lien in any manner that is not materially adverse to the grant, perfection,
priority or enforcement of Priority Liens and does not materially affect or delay or affect any exercise or enforcement of the rights
and remedies of the holder of Priority Liens.
The restriction set forth in the preceding paragraph applies only to Subordinate Liens and does not apply to any Priority
Lien. The Trustee may freely take (and authorize or direct any other Person to take) any action to enforce, collect or realize upon
any Lien securing Note Obligations attached to any property constituting Note Priority Lien Collateral, and the Credit Agreement
Agent may freely take (and authorize or direct any other Person to take) any action to enforce, collect or realize upon any Lien
securing Credit Agreement Obligations attached to any property constituting Credit Agreement Priority Lien Collateral.
Until the Discharge of Credit Agreement Indebtedness, the Credit Agreement Agent as the holder of Priority Liens on the
Credit Agreement Priority Lien Collateral will have the exclusive right to manage, perform and enforce the terms of the Credit
Agreement Security Documents with respect to all Credit Agreement Priority Lien Collateral and to exercise and enforce all rights and
remedies thereunder according to its discretion and exercise of its business judgment, including, without limitation, the exclusive
right to take the actions enumerated in clauses (1) through (9) of the first paragraph of this section, but only as to the Credit
Agreement Priority Lien Collateral. Until the release, in whole, of all Liens securing Note Obligations, the Trustee as holder of
Priority Liens on the Note Priority Lien Collateral will have the exclusive right to manage, perform and enforce the terms of the
Note Security Documents with respect to all Note Priority Lien Collateral and to exercise and enforce all rights and remedies
thereunder according to its discretion and exercise of its business judgment, including, without limitation, the exclusive right to
take the actions enumerated in clauses (1) through (9) of the first paragraph of this section, but only as to the Note Priority Lien
Collateral. In connection with the exercise or enforcement of any such right, each holder of Subordinate Liens waives any and all
rights to affect the method or challenge the appropriateness of any action by any holder of any Priority Lien and hereby consents to
each holder of any Priority Lien exercising or not exercising such rights and remedies as if no Subordinate Lien existed, except only
that the holders of Subordinate Liens reserve all rights granted by law:
(1) to request or receive notice of any sale of Collateral in foreclosure of any Priority Lien; or
(2) to redeem any Collateral or enforce any right to claim, take or receive proceeds of Collateral remaining after the
release, in whole, of all Liens securing Note Obligations or the Discharge of Credit Agreement Indebtedness, as the case
may, be as provided in the first paragraph of this section.
Until (A) the release, in whole, of all Liens securing Note Obligations, in the case of Subordinate Liens upon Note Priority
Lien Collateral, or (B) the Discharge of Credit Agreement Indebtedness, in the case of Subordinate Liens upon Credit Agreement
Priority Lien Collateral, the holders of Subordinate Liens will not:
(1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay,
limit or prohibit the exercise or enforcement of any right or remedy otherwise available to the holder of Priority Liens on
such Collateral or that would limit, invalidate, avoid or set aside any Priority Lien or Security Document governing any
Priority Lien on such Collateral or subordinate the Priority Liens on such Collateral to the Subordinate Liens or grant the
Priority Liens on such Collateral equal ranking to the Subordinate Liens;
(2) oppose or otherwise contest any motion for relief from the automatic stay or from any injunction against foreclosure
or enforcement of Priority Liens on such Collateral made by the holder of Priority Liens thereon in any Insolvency or
Liquidation Proceeding;
(3) oppose or otherwise contest any exercise by the holder of Priority Liens on such Collateral of the right to credit
bid Indebtedness secured by any Priority Lien on such Collateral at any sale of such Collateral in foreclosure of the
Priority Lien thereon; or
(4) oppose or otherwise contest any foreclosure of any Priority Lien on such Collateral.
Section 10.06 Proceeds of Insurance.
For as long as the Liens upon Note Priority Lien Collateral securing Credit Agreement Obligations are Subordinate Liens to
the extent permitted by this Indenture or the Note Security Documents:
(1) the Trustee will have, subject to the provisions of the Note Security Documents, the sole right (but not the obligation)
to adjust settlement of all insurance claims and condemnation awards in the event of any covered loss, theft or destruction
or condemnation of any Note Priority Lien Collateral and all claims under insurance constituting Note Priority Lien
Collateral, including business interruption insurance;
(2) all proceeds of insurance on or constituting Note Priority Lien Collateral, all condemnation awards resulting from a
taking of any Note Priority Lien Collateral and all proceeds of any business interruption insurance, will inure to the
benefit of, and to the extent required by the Note Security Documents will be paid to, the Trustee for account of the
Holders of Notes; and
(3) the Credit Agreement Agent will co-operate, if necessary and as reasonably requested by the Trustee, in effecting
the payment of insurance proceeds of Note Priority Lien Collateral to the Trustee;
and for as long as the Liens upon Credit Agreement Priority Lien Collateral securing Note Obligations are Subordinate Liens to the
extent permitted by the Credit Agreement or any Credit Agreement Security Document:
(1) the Credit Agreement Agent will have, subject to the provisions of the Credit Agreement Security Documents, the sole
right to adjust settlement of all insurance claims and condemnation awards in the event of any covered loss, theft or
destruction or condemnation of any Credit Agreement Priority Lien Collateral and all claims under insurance constituting
Credit Agreement Priority Lien Collateral;
(2) all proceeds of insurance on or constituting Credit Agreement Priority Lien Collateral and all condemnation awards
resulting from a taking of any Credit Agreement Priority Lien Collateral will inure to the benefit of, and to the extent
required by the Credit Agreement will be paid to, the holders of Credit Agreement Obligations; and
(3) the Trustee will co-operate, if necessary and as reasonably requested by the Credit Agreement Agent, in effecting
the payment of insurance proceeds of Credit Agreement Priority Lien Collateral to the Credit Agreement Agent.
In the event of any covered loss, theft or destruction or condemnation of both Note Priority Lien Collateral and Credit
Agreement Priority Lien Collateral for which an insurer of the Company or any Obligor will only settle one claim or award, the
Trustee and the Credit Agreement Agent will co-operate with each other to adjust settlement of the insurance claims in respect of the
Note Priority Lien Collateral and Credit Agreement Priority Lien Collateral.
Section 10.07 Insolvency or Liquidation Proceedings.
If, in any Insolvency or Liquidation Proceeding and prior to the Discharge of Credit Agreement Indebtedness, the holders of
all Indebtedness outstanding under the Credit Agreement (or such holders as may have the power to bind all of them):
(1) consent to any order for use of any cash collateral, except cash collateral consisting of Note Priority Lien Collateral,
which provides that the holders of Credit Agreement Obligations are granted a replacement Lien (a) upon the Credit Agreement
Priority Lien Collateral that is senior to or at parity with all Liens upon the Credit Agreement Priority Lien Collateral
securing Credit Agreement Obligations and/or (b) upon some or all of the Note Priority Lien Collateral that is, by the
express provisions of such order, in all respects subject and subordinate to all Liens securing Note Obligations (including
all replacement Liens or adequate protection Liens at any time granted in such Insolvency or Liquidation Proceeding to
secure Note Obligations); or
(2) consent to any order approving a debtor-in-possession financing which provides:
(A) that the aggregate principal amount of Indebtedness at any one time permitted to be incurred under such
debtor-in-possession financing, when added to the aggregate principal amount of Indebtedness then outstanding under
the Credit Agreement and outstanding under such debtor-in-possession financing, shall not exceed the Maximum Credit
Agreement Indebtedness Amount (on a pro forma basis after giving effect to any substantially contemporaneous
application of the proceeds of such incurrence), and
(B) that Obligations in respect of such debtor-in-possession financing will be secured by a Lien (i) upon the Credit
Agreement Priority Lien Collateral that is senior to or at parity with all Liens upon the Credit Agreement Priority
Lien Collateral securing Credit Agreement Obligations and/or (ii) upon some or all of the Note Priority Lien
Collateral that is, by the express provisions of such order, in all respects subject and subordinate to all Liens
securing Note Obligations (including all replacement Liens or adequate protection Liens at any time granted in such
Insolvency or Liquidation Proceeding to secure Note Obligations),
then the holders of Note Obligations and the Trustee will not oppose or otherwise contest the entry of such order, but only in
respect of the provisions described in this paragraph.
In any Insolvency or Liquidation Proceeding occurring prior to the Discharge of Credit Agreement Indebtedness, the
Trustee will not oppose or otherwise contest the entry of an order (a "Sale Delay Order") delaying the sale of any real property
which is Note Priority Lien Collateral in order to allow the Credit Agreement Agent and its officers, employees and agents (but not
any of its transferees) reasonable and non-exclusive access to and use of such real property and any equipment and fixtures thereon
as necessary or reasonably appropriate to manufacture, produce, complete, remove or sell, in any lawful manner, any Inventory upon
which the Credit Agreement Agent holds a Lien, provided that (x) the Credit Agreement Agent, such officers, employees or agents had
commenced to manufacture, produce, complete, remove or sell such Inventory prior to the date of the filing of such Insolvency or
Liquidation Proceeding and (y) the delay is such sale shall not exceed 120 consecutive calendar days from the date the Credit
Agreement Agent, such officers, employees or agents had first commenced the actions specified in (x).
If, in an Insolvency or Liquidation Proceeding and prior to the release, in whole, of all Liens securing Note Obligations,
the Trustee:
(1) consents to any order relating to any sale of Note Priority Lien Collateral and providing, to the extent the sale is to
be free and clear of Liens, that all such Liens shall attach to the proceeds of the sale, and
(2) in connection therewith, consents to and supports before the court any request for Credit Bid Rights made by the
Credit Agreement Agent or holders of Credit Agreement Obligations (except that such holders need not admit, consent to or
support any valuation of the Note Priority Lien Collateral alleged in support of the allowance of any secured claim based
upon the Liens securing Credit Agreement Obligations),
then, so long as the Trustee does not oppose or otherwise contest any request made by the holders of Credit Agreement Obligations
(which may be made only if, pursuant to any such order, the holders of Note Obligations are, or are to be, granted a Lien upon any
property) for the grant to the Credit Agreement Agent, for the benefit of the holders of Credit Agreement Obligations and as adequate
protection (or its equivalent) for the Credit Agreement Agent's interest in the Note Priority Lien Collateral under the Liens
securing Credit Agreement Obligations, of a junior lien upon such property that is co-extensive in all respects with, but
subordinated (as set forth in Section 10.01 hereof) in all respects to, all Liens securing Note Obligations upon such property
pursuant to such order, the holders of Credit Agreement Indebtedness and the Credit Agreement Agent will not oppose or otherwise
contest (provided that the Credit Agreement Agent may seek to have any order for the sale of any real property which is Note Priority
Lien Collateral conditioned on a Sale Delay Order) the entry of such order solely in their capacity as a secured creditor based
solely on any ground that may be asserted only by a secured creditor arising from or relating to any Lien securing Credit Agreement
Obligations.
If, in an Insolvency or Liquidation Proceeding and prior to the Discharge of Credit Agreement Indebtedness, the holders of
all Indebtedness outstanding under the Credit Agreement (or such holders as may have the power to bind all of them):
(1) consent to any order relating to any sale of Credit Agreement Priority Lien Collateral and providing, to the extent the
sale is to be free and clear of Liens, that all such Liens shall attach to the proceeds of the sale, and
(2) in connection therewith, consent to and support before the court any request for Credit Bid Rights made by the
Trustee or any Holder of Notes (except that such holders need not admit, consent to or support any valuation of the Credit
Agreement Priority Lien Collateral alleged in support of the allowance of any secured claim based upon the Liens securing
the Note Obligations),
then, so long as the holders of Credit Agreement Priority Lien Indebtedness do not oppose or otherwise contest any request made by
the holders of Note Obligations (which may be made only if, pursuant to any such order, the holders of Credit Agreement Obligations
are, or are to be, granted a Lien upon any property) for the grant to the Trustee, for the benefit of the holders of Note Obligations
and as adequate protection (or its equivalent) for the Trustee's interest in the Credit Agreement Priority Lien Collateral under the
Liens securing Note Obligations, of a junior lien upon such property that is co-extensive in all respects with, but subordinated (as
set forth in Section 10.01 hereof) in all respects to, all Liens securing Credit Agreement Obligations upon such property pursuant to
such order, the Holders of Notes and the Trustee will not oppose or otherwise contest the entry of such order solely in their
capacity as a secured creditor based solely on any ground that may be asserted only by a secured creditor arising from or relating to
any Lien securing Note Obligations.
The holders of Note Obligations and the Trustee will not, at any time prior to the Discharge of Credit Agreement
Indebtedness, file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable
request for relief) based upon their Subordinate Liens in the Credit Agreement Priority Lien Collateral. The holders of Credit
Agreement Obligations and the Credit Agreement Agent will not, at any time prior to the release, in whole, of all Liens securing Note
Obligations, file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable
request for relief) based upon their Subordinate Liens in the Note Priority Lien Collateral. No right of any holder of Note
Obligations or Liens securing Note Obligations to demand, seek and obtain adequate protection (or any comparable relief) for any
Priority Lien upon any Note Priority Lien Collateral, and no right of any holder of Credit Agreement Obligations or Liens securing
Credit Agreement Obligations to demand, seek and obtain adequate protection (or any comparable relief) for any Priority Lien upon any
Credit Agreement Priority Lien Collateral, will be in any respect reduced, limited or affected hereby.
The holders of Note Obligations and the Trustee will not assert or enforce, at any time prior to the Discharge of Credit
Agreement Indebtedness, any claim underss.506(c) of the United States Bankruptcy Code senior to or on a parity with any Priority Lien
upon Credit Agreement Priority Lien Collateral for costs or expenses of preserving or disposing of any Collateral. The holders of
Credit Agreement Obligations and the Credit Agreement Agent will not assert or enforce, at any time prior to the release in whole of
all Liens securing Note Obligations, any claim underss.506(c) of the United States Bankruptcy Code senior to or on a parity with any
Priority Lien upon Note Priority Lien Collateral for costs or expenses of preserving or disposing of any Collateral.
If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any
property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan,
both on account of the Credit Agreement Obligations and on account of the Note Obligations, then, to the extent the debt obligations
distributed on account of the Credit Agreement Obligations and on account of the Note Obligations are secured by Liens upon the same
property, the provisions of Section 10.01 hereof will survive the distribution of such debt obligations pursuant to such plan and
will apply with like effect to the Liens securing such debt obligations.
Section 10.08 Amendment of Intercreditor Provisions.
No amendment or supplement to the provisions set forth under this Article 10 will:
(1) be effective unless set forth in a writing signed by the Trustee with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding voting as a single class, except that any such amendment which releases
all or substantially all of the Collateral or contractually subordinates the Liens on the Note Priority Lien Collateral
securing the Note Obligations will be effective only with the consent of the Holders of at least 66 2/3% in principal amount
of the Notes then outstanding, voting as a single class; or
(2) become effective at any time when any Credit Agreement Obligations are outstanding or committed under the Credit
Agreement unless such amendment or supplement is consented to in a writing signed by the Credit Agreement Agent acting upon
the direction or with the consent of the Required Lenders.
Any such amendment or supplement that:
(1) imposes any additional obligation upon the Company or any of its Subsidiaries or adversely affects the rights of the
Company or any of its Subsidiaries will become effective only with the consent of the Company or such Subsidiary;
(2) imposes any obligation upon the Trustee or adversely affects the rights of the Trustee in its individual capacity
will be effective only with the consent of the Trustee; or
(3) imposes any obligation upon the Credit Agreement Agent or adversely affects the rights of the Credit Agreement Agent
in its individual capacity will be effective only with the consent of the Credit Agreement Agent.
Section 10.09 Waiver of Certain Subrogation, Marshalling, Appraisal and Valuation Rights.
To the fullest extent permitted by law, the Holders of Notes and the Trustee agree not to assert or enforce at any time
prior to the Discharge of Credit Agreement Indebtedness:
(1) any right of subrogation to the rights or interests of holders of Priority Liens in respect of any Credit Agreement
Priority Lien Collateral or any claim or defense based upon impairment of any such right of subrogation;
(2) any right of marshalling accorded to a junior lienholder, as against a priority lienholder, under equitable
principles in respect of any Credit Agreement Priority Lien Collateral; or
(3) any statutory right of appraisal or valuation accorded to a junior lienholder in respect of any Credit Agreement
Priority Lien Collateral in a proceeding to foreclose a senior Lien thereon,
that otherwise may be enforceable in respect of any Lien securing Note Obligations as against any holder of Priority Liens upon any
Credit Agreement Priority Lien Collateral.
To the fullest extent permitted by law, the holders of Credit Agreement Obligations and the Credit Agreement Agent agree not
to assert or enforce at any time prior to the release, in whole, of all Liens securing Note Obligations:
(1) any right of subrogation to the rights or interests of holders of Priority Liens in respect of any Note Priority Lien
Collateral or any claim or defense based upon impairment of any such right of subrogation;
(2) any right of marshalling accorded to a junior lienholder, as against a priority lienholder, under equitable
principles in respect of any Note Priority Lien Collateral; or
(3) any statutory right of appraisal or valuation accorded to a junior lienholder in respect of any Note Priority Lien
Collateral in a proceeding to foreclose a senior Lien thereon,
that otherwise may be enforceable in respect of any Lien securing Credit Agreement Obligations as against any holder of Priority
Liens upon any Note Priority Lien Collateral.
Without in any way limiting the generality of the foregoing, each holder of Priority Liens or Obligations secured by
Priority Liens may at any time and from time to time, without the consent of or notice to any holder of Subordinate Liens or
Obligations secured thereby, without incurring any responsibility or liability to any holder of Subordinate Liens or Obligations
secured thereby and without in any manner prejudicing, affecting or impairing the agreements and other obligations set forth in this
Article 10:
(1) make loans and advances to the Company or any of its Subsidiaries or issue, guaranty or obtain letters of credit for
account of the Company or any of its Subsidiaries or otherwise extend credit to the Company or any of its Subsidiaries, in
any amount and on any terms, whether pursuant to a commitment or as a discretionary advance and whether or not any default
or event of default or failure of condition is then continuing;
(2) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, compromise,
accelerate, extend or refinance, any Obligation secured by a Priority Lien or any agreement, guaranty, Lien or obligation of
the Company or any of its Subsidiaries or any other person or entity in any manner related thereto, or otherwise amend,
supplement or change in any manner any Priority Lien or Obligation secured thereby or any such agreement, guaranty, Lien or
obligation;
(3) increase or reduce the amount of any Obligation secured by a Priority Lien (up to the Maximum Credit Agreement
Indebtedness Amount) or the interest, premium, fees or other amounts payable in respect thereof;
(4) release or discharge any Obligation secured by a Priority Lien or any guaranty thereof or any agreement or
obligation of the Company or any of its Subsidiaries or any other person or entity with respect thereto;
(5) take or fail to take any Priority Lien or any other collateral security for any Obligation or take or fail to take
any action which may be necessary or appropriate to ensure that any Priority Lien or any other Lien upon any property is
duly enforceable or perfected or entitled to priority as against any other Lien or to ensure that any proceeds of any
property subject to any Lien are applied to the payment of any obligation secured thereby;
(6) release, discharge or permit the lapse of any or all Priority Liens;
(7) exercise or enforce, in any manner, order or sequence, or fail to exercise or enforce, any right or remedy against
the Company or any other Obligor or any collateral security or any other person, entity or property in respect of any
Priority Lien or any right or power under Section 10.01 hereof, and apply any payment or proceeds of collateral in any order
of application; or
(8) sell, exchange, release, foreclose upon or otherwise deal with any property that may at any time be subject to any
Priority Lien.
No exercise, delay in exercising or failure to exercise any right set forth in or arising under the provisions described in
this Article 10, no act or omission of any holder of Priority Liens or Obligations secured thereby in respect of the Company or any
of its Restricted Subsidiaries or any other person or entity or any collateral security for any Obligation or any right arising under
such provisions, no change, impairment, or suspension of any right or remedy of any holder of any Priority Lien or Obligations
secured thereby, and no other act, failure to act, circumstance, occurrence or event which, but for this sentence, would or could act
as a release or exoneration of any obligation set forth in or arising under such provisions will in any way affect, decrease,
diminish or impair any of the ranking agreements or any of the other rights and obligations of the holders of Secured Obligations and
the Trustee and Credit Agreement Agent set forth in or arising under such provisions.
Except for the contractual obligations set forth in or arising under the provisions described in this Article 10, the Credit
Agreement Agent and holders of Credit Agreement Obligations will not have any duty, express or implied, fiduciary or otherwise, to
any holder of Note Obligations or the Trustee, and the Trustee and holders of Note Obligations will not have any duty, express or
implied, fiduciary or otherwise, to any holder of Credit Agreement Obligations or the Credit Agreement Agent.
The holders of Credit Agreement Obligations, on the one hand, and the holders of Note Obligations, on the other hand, shall
each be responsible for keeping themselves informed of the financial condition of the Company and its Subsidiaries and all other
circumstances bearing upon the risk of nonpayment of their outstanding Obligations. The Credit Agreement Agent and holders of Credit
Agreement Obligations will have no duty to advise the Trustee or any holder of Note Obligations, and the Trustee and holders of Note
Obligations will have no duty to advise the Credit Agreement Agent or any holder of Credit Agreement Obligations, of information
regarding such condition or circumstances or as to any other matter. If any of them undertakes at any time or from time to time to
provide any such information, it shall be under no obligation to provide any similar information on any subsequent occasion, to
provide any additional information, to undertake any investigation, or to disclose any information which, pursuant to accepted or
reasonable commercial finance practice, it wishes to maintain confidential.
Section 10.10 Obligations Not Subordinated.
The provisions of in this Article 10 are intended solely to set forth the relative ranking of the Priority Liens and
Subordinate Liens and the other rights and obligations described therein. The Notes and Guarantees and the Indebtedness under the
Credit Agreement and guarantees thereof are senior non-subordinated obligations of the Company and Guarantors. Neither the Notes,
the Guarantees and other Note Obligations nor the Indebtedness under the Credit Agreement and guarantees thereof and other Credit
Agreement Obligations nor the exercise or enforcement of any right or remedy for the payment or collection thereof are intended to
be, or will ever be by reason of the provisions of this Article 10 in any respect subordinated, deferred, postponed, restricted or
prejudiced.
Section 10.11 Enforcements.
The rights and obligations set forth in or arising under this Article 10 are enforceable only by the Trustee and Credit
Agreement Agent against each other (and their respective successors, including, but only to the extent expressly provided herein, a
purchaser at a foreclosure sale conducted in foreclosure of the Trustee's Liens), against the holders of Note Obligations and Credit
Agreement Obligations, and against the Obligors. No other Person (including holders of Secured Obligations) shall be entitled to
enforce any such right or obligation.
Section 10.12 Relative Rights.
The provisions described in this Article 10 set forth certain relative rights, as lienholders, of the Trustee and the Credit
Agreement Agent. Nothing herein or any comparable provision of the Credit Agreement will:
(1) impair, as between the Company, any other Obligor and Holders of Notes, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium and interest and Additional Interest, if any, on the Notes in
accordance with their terms or to perform any other obligation of the Company or any other Obligor under the Note Documents;
(2) impair, as between the Company, any other Obligor and holders of Indebtedness outstanding under the Credit
Agreement, the obligation of the Obligors which are borrowers under or guarantors of the Credit Agreement, which is absolute
and unconditional, to pay principal of, premium and interest, on such Indebtedness in accordance with the terms of the
Credit Agreement or to perform any other obligation of the Company or any other Obligor under the Credit Agreement;
(3) affect the relative rights of holders of Note Obligations or Credit Agreement Obligations and other creditors of the
Company or any of its Subsidiaries;
(4) restrict the right of any holder of Secured Obligations to xxx for payments that are then due and owing;
(5) prevent the Trustee or the Credit Agreement Agent or any holder of Secured Obligations from exercising against the
Company or any other Obligor any of its available remedies upon a Default or Event of Default, except to the extent
otherwise expressly set forth in the case of enforcement of Subordinate Liens under Section 10.05 hereof; or
(6) restrict the right of the Trustee, the Credit Agreement Agent or any holder of Secured Obligations to file and
prosecute a petition seeking an order for relief in an involuntary bankruptcy case as to any Obligor or otherwise to
commence, or seek relief commencing, any Insolvency or Liquidation Proceeding in respect of any Collateral as to which it
has a Priority Lien involuntarily against any Obligor or to assert or enforce any claim, Lien, right or remedy in any
voluntary or involuntary bankruptcy case or Insolvency or Liquidation Proceeding in compliance with the applicable
provisions of this Indenture or the Credit Agreement, as the case may be.
ARTICLE 11.
COLLATERAL AND SECURITY
Section 11.01 Security Documents.
The payment of the principal of and interest and premium and Additional Interest, if any, on the Notes when due, whether on
an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise and whether by the Company pursuant to
the Notes or by any Guarantor pursuant to the Guarantees, the payment of all other Note Obligations and the performance of all other
Obligations of the Company and its Subsidiaries under the Note Documents will be secured by all Note Security Documents delivered as
required or permitted by this Indenture.
Section 11.02 Note Collateral and Credit Agreement Collateral; Priority Liens and Subordinate Liens.
The Notes, the Guarantees and the other Note Obligations will be secured by:
(1) first-priority security interests in the Note Priority Lien Collateral, which consists of (a) all property and
assets, whether real, personal or mixed, whether tangible or intangible, and wherever located, now owned or at any time
hereafter acquired by the Company or any of its Domestic Restricted Subsidiaries, other than Credit Agreement Priority Lien
Collateral and Excluded Assets, subject to Permitted Prior Liens, and (b) all of the outstanding common stock of the
Company, and
(2) second-priority security interests in the Credit Agreement Priority Lien Collateral, which consists of all Accounts
(and all instruments, chattel paper and other documents evidencing the obligation of any account debtor to pay any
obligation that at any time constituted an Account), Inventory, supporting obligations (as defined in the NYUCC) that
support Accounts, deposit accounts (as defined in the NYUCC), intellectual property rights licensed to the Company by third
parties for the manufacturing of items from Inventory where such license cannot be sublicensed by the Company, Cash
Equivalents (including Cash Equivalents in securities accounts (as defined in the NYUCC)) other than any deposit account or
Cash Equivalent that constitutes or is held in an Asset Sales Proceeds Account, all books and records, including computer
records and software, evidencing or directly relating to Accounts, Inventory and other property described as Credit
Agreement Priority Lien Collateral and Proceeds of all of the foregoing at any time owned or acquired by the Company or any
other Obligor, subject to Permitted Prior Liens, other than deposit accounts.
The second-priority security interests in the Credit Agreement Priority Lien Collateral will be expressly subordinated to Liens on
the Credit Agreement Priority Lien Collateral securing Credit Agreement Obligations.
The Credit Agreement Obligations will be secured by first-priority security interests in the Credit Agreement Priority Lien
Collateral and second-priority security interests in the Note Priority Lien Collateral other than the outstanding common stock of the
Company. The second-priority security interests in the Note Priority Lien Collateral will be expressly subordinated to Liens on the
Note Priority Lien Collateral securing Note Obligations.
If the Company or any of its Domestic Restricted Subsidiaries at any time owns or acquires any property, other than Excluded
Assets, that is not subject to a valid, enforceable perfected Lien (subject to Permitted Prior Liens) in favor of the Trustee (or its
co-trustee, agent or sub-agent) as security for the Note Obligations, then the Company will, or will cause such Restricted Subsidiary
to, execute and deliver to the Trustee a Note Security Document upon substantially the same terms as the Note Security Documents
delivered in connection with the issuance of the Notes, granting a Lien upon such property in favor of the Trustee as security for
the Note Obligations, cause such Lien to be duly perfected in any manner permitted by law and cause each other Lien upon such
property to be released, unless it is a Permitted Lien, or subordinated to the Liens securing Note Obligations if it is a Permitted
Lien but not a Permitted Prior Lien. However, the Note Obligations will be secured by a second-priority Lien, expressly subordinated
to all Liens securing Credit Agreement Obligations, if such property is Credit Agreement Priority Lien Collateral.
Only the Notes and other Note Obligations will have the benefit of the first-priority security interests in the Note
Priority Lien Collateral and the second-priority security interests in the Credit Agreement Priority Lien Collateral. No other
Indebtedness may be secured equally and ratably with the Notes and other Note Obligations. Liens are permitted on the Collateral
securing Credit Agreement Obligations, so long as (except as otherwise provided herein as to Proceeds and payments under Section
10.02 hereof) such Liens are contractually subordinated insofar as they attach to property constituting Note Priority Lien
Collateral. The security interests securing the Notes and other Note Obligations will be subject to existing Liens, purchase money
security interests and other Liens entitled to priority by law and will be contractually subordinated only insofar as they attach to
property constituting Credit Agreement Priority Lien Collateral, and as to such property will be subordinate only to security
interests in such property held by the Credit Agreement Agent securing the principal amount of Indebtedness up to the Maximum Credit
Agreement Indebtedness Amount outstanding under the Credit Agreement and other Obligations outstanding under the Credit Agreement,
including interest and fees.
In the event that the Company or any other Obligor sells any Note Priority Lien Collateral, it shall use the Net Proceeds to
either purchase additional assets that will constitute Note Priority Lien Collateral or make an offer for the purchase of the Notes.
A sale of capital stock of a Restricted Subsidiary that owns assets constituting Note Priority Lien Collateral will be treated as a
sale of those assets. If and whenever the Company or any other Obligor receives any cash proceeds from any sale or other disposition
of Note Priority Lien Collateral, the Company will, or will cause such Obligor to, immediately deposit the Net Proceeds from such
sale in an Asset Sales Proceeds Account controlled by the Trustee and held by it as additional Note Priority Lien Collateral
Section 11.03 Authorization of Actions to Be Taken.
Each Holder of Notes, by its acceptance of a Note, consents and agrees to the terms of each Note Security Document and
Intercreditor Agreement, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its
terms or the terms of this Indenture, authorizes and directs the Trustee to enter into the Note Security Documents, authorizes and
empowers the Trustee to enter into, and to execute and deliver, each Intercreditor Agreement, and authorizes and empowers the Trustee
to bind the Holders of Notes and other holders of Note Obligations as set forth in the Note Security Documents and each Intercreditor
Agreement and to perform its obligations and exercise its rights and powers thereunder.
The Trustee is authorized and empowered to receive for the benefit of the Holders of Notes any funds collected or
distributed under the Note Security Documents and to make further distributions of such funds to the Holders of Notes according to
the provisions of this Indenture.
Subject to Sections 7.1 and 7.2 hereof and subject to Section 10.01 hereof, the Trustee may, in its sole discretion and
without the consent of the Holders of Notes, take all actions it deems necessary or appropriate in order to:
(1) foreclose upon or otherwise enforce any or all of the Liens securing Note Obligations;
(2) enforce any of the terms of the Note Security Documents; or
(3) collect and receive payment of any and all Note Obligations.
The Trustee is authorized and empowered to institute and maintain such suits and proceedings as it may deem expedient to
protect or enforce the Liens securing Note Obligations or the Note Security Documents or to prevent any impairment of Collateral by
any acts that may be unlawful or in violation of the Note Security Documents or this Indenture, and such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of Notes in the Collateral,
including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders of
Notes or the Trustee.
Section 11.04 Release of Liens Securing Note Obligations.
The Liens securing Note Obligations will be released:
(1) in whole, as to all property subject to such Liens, upon payment in full of the principal of, accrued and unpaid
interest and premium and Additional Interest, if any, on the Notes and payment in full of all other Note Obligations that
are due and payable at or prior to the time such principal, accrued and unpaid interest and premium and Additional Interest,
if any, are paid;
(2) in whole, as to all property subject to such Liens, upon satisfaction and discharge of this Indenture;
(3) in whole, as to all property subject to such Liens, upon a legal defeasance or covenant defeasance as set forth
under Article 8 hereof;
(4) in part, as to any property that (a) is sold or otherwise disposed of by the Company or one of its Subsidiaries in a
transaction permitted by this Indenture, at the time of such sale or disposition, to the extent of the interest sold or
disposed of, (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee, concurrently
with the release of such Guarantee or (c) constitutes Exceed Proceeds from the sale of Note Priority Lien Collateral which
have been offered to, but not accepted by, the Holders of Notes and are released as set forth herein;
(5) as to property that constitutes all or substantially all of the Collateral, with the consent of at least 80% in
principal amount of the then outstanding Notes as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, or purchase of, Notes); or
(6) as to property that constitutes less than all or substantially all of the Collateral, with the consent of at least a
majority in principal amount of the Notes then outstanding voting as a single class (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes).
Section 11.05 Further Assurances; Inspection; Expense Reimbursement; Indemnity.
The Company will, and will cause each of its Subsidiaries to, do or cause to be done all acts and things which are
necessary, or which the Trustee from time to time may reasonably request, to assure and confirm that the Trustee holds, for the
benefit of the holders of Note Obligations, duly created, enforceable and perfected Liens upon the Collateral as contemplated by this
Indenture and the Note Security Documents, so as to render the same available for the security and benefit of this Indenture and of
the Notes, Guarantees and all other Note Obligations, according to the intent and purposes herein expressed.
Upon request of the Trustee at any time and from time to time, the Company will, and will cause each of its Subsidiaries to,
promptly execute, acknowledge and deliver such Note Security Documents, instruments, certificates, notices and other documents and
take such other actions as the Trustee may reasonably request to create, perfect, protect, assure or enforce the Liens securing Note
Obligations and benefits intended to be conferred as contemplated by this Indenture for the benefit of the holders of Note
Obligations. If the Company or such Subsidiary fails to do so, the Trustee is hereby irrevocably authorized and empowered, with full
power of substitution, to execute, acknowledge and deliver such Note Security Documents, instruments, certificates, notices and other
documents and, subject to this Indenture, take such other actions in the name, place and stead of the Company or such Subsidiary, but
the Trustee will have no obligation to do so and no liability for any action taken or omitted by it in good faith in connection
therewith.
Upon request of the Trustee at any time and from time to time, the Company will, and will cause its Restricted Subsidiaries
to, (i) permit the Trustee or any advisor, auditor, consultant, attorney or representative acting for the Trustee or the Holders of
at least 25% in outstanding principal amount of Notes, upon reasonable notice to the Company and during normal business hours unless
an Event of Default is continuing, to visit and inspect any of the property of the Company and its Subsidiaries, to review, make
extracts from and copy the books and records of the Company and its Subsidiaries relating to any such property, and to discuss any
matter pertaining to any such property with the officers and employees of the Company and its Subsidiaries, and (ii) deliver to the
Trustee such reports, including valuations, relating to any such property or any Lien thereon as the Trustee or such holders may
request.
The Company will bear and pay all legal expenses, collateral audit and valuation costs, filing fees, insurance premiums and
other costs associated with the performance of the obligations of the Company and its Subsidiaries set forth in this section and also
will pay, or promptly reimburse the Trustee for, all costs and expenses incurred by the Trustee or Holders of Notes in connection
therewith, including all reasonable fees and charges of any advisors, auditors, consultants, attorneys or representatives acting for
the Trustee or the Holders of at least 25% in outstanding principal amount of Notes.
The Company will pay, reimburse the Trustee and the Holders of Notes for, and, to the fullest extent lawful, defend and
indemnify each of them against, all claims, liabilities, taxes, costs and expenses of every type and nature (including, without
limitation, the reasonable fees and charges of attorneys, advisors, auditors and consultants acting for any of them) incurred by any
of them as a result of or in connection with the creation, perfection, protection or enforcement of the Liens securing Note
Obligations or the exercise or enforcement of any right or remedy under the Security Documents or to prove, preserve, protect or
enforce any Lien securing Note Obligations or any claim based upon any Lien securing Note Obligations in any legal proceeding,
including any Insolvency or Liquidation Proceeding, except that the Trustee or a Holder of Notes will not be entitled to indemnity in
respect of any claim, liability or loss that resulted directly and primarily from its own gross negligence or willful misconduct.
The Company will pay, reimburse the Trustee and the Holders of Notes for, and, to the fullest extent lawful, defend and
indemnify each of them against, all claims, liabilities, taxes, costs and expenses of every type and nature (including, without
limitation, the reasonable fees and charges of attorneys, advisors, auditors and consultants acting for any of them) incurred by any
of them as a result of or in connection with: (A) the presence, release, or threatened release of or exposure to any hazardous
material at, from, in, to, on, or under any property currently or formerly owned, leased or otherwise used or occupied by the Company
or any of its Subsidiaries; (B) the transportation, treatment, storage, handling, recycling or disposal or arrangement for
transportation, treatment, storage, handling, recycling or disposal of any hazardous material at or to any location by or on behalf
of the Company or any of its Subsidiaries; or (C) any violation of environmental law by the Company or any of its Subsidiaries,
except that the Trustee or Holder of Notes will not be entitled to indemnity in respect of any claim, liability or loss that resulted
directly and primarily from its own gross negligence or willful misconduct.
The Company will comply with the provisions of TIAss.314(b).
To the extent applicable, the Company will cause TIAss.313(b), relating to reports, and TIAss.314(d), relating to the release
of property or securities or relating to the substitution therefore of any property or securities to be subjected to the Note Lien of
the Note Security Documents, to be complied with. Any certificate or opinion required by TIAss.314(d) may be made by an officer of the
Company except in cases where TIAss.314(d) requires that such certificate or opinion be made by an independent Person, which Person
will be an independent engineer, appraiser or other expert selected or reasonably satisfactory to the Trustee.
To the extent applicable, the Company will furnish to the Trustee, prior to each proposed release of Collateral pursuant to
the Note Security Documents:
(1) all documents required by TIAss.314(d); and
(2) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA
ss.314(d).
Section 11.06 Amendment of Note Security Documents.
No amendment or supplement to the provisions of the Note Security Documents will be effective without the consent of at
least a majority in aggregate principal amount of the Notes outstanding, except that:
(1) no amendment or supplement to the provisions of the Note Security Documents that adversely affects the right of any
Holder of Notes to share equally and ratably with the Holders of other Notes in the benefits of any Lien securing Note
Obligations will be effective without the consent of such Holder and
(2) any amendment or supplement to the provisions of the Note Security Documents that releases all or substantially all
of the Collateral will be governed by Section 11.04 hereof.
ARTICLE 12.
NOTE GUARANTEES
Section 12.01 Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium and Additional Interest, if any, and interest on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will
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 or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors
will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and
not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, 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, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor hereby waives 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 covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained
in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any
custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid
by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force
and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect
of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that,
as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 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 (2) in the
event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due
and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will
have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Note Guarantee.
Section 12.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties
that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable
to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount
and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 12, result in the obligations of such Guarantor under its Note Guarantee not
constituting a fraudulent transfer or conveyance.
Section 12.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 12.01 hereof, each Guarantor hereby agrees that a notation of such Note
Guarantee substantially in the form attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its
Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section 12.01 hereof will remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the
Note Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted Subsidiaries creates or acquires any Domestic Subsidiary after the
date of this Indenture, if required by Section 4.21 hereof, the Company will cause such Domestic Subsidiary to comply with the
provisions of Section 4.21 hereof and this Article 12, to the extent applicable.
Section 12.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 12.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all
of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person,
other than the Company or another Guarantor, unless:
(1) immediately after giving effect to such transaction, no Default or Event of Default exists; and
(2) either:
(A) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that Guarantor pursuant to a supplemental indenture
satisfactory to the Trustee; and
(B) the Net Proceeds of such sale or other disposition are applied in accordance with Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed
upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon
all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All
the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been
issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (a) and (b) above, nothing contained in this
Indenture or in any of the Notes will prevent any consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or will prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to
the Company or another Guarantor.
Section 12.05 Releases.
(a) Upon the consummation of any transaction after which any Guarantor is no longer a Restricted Subsidiary of the
Company, then such Guarantor (in the event of a sale or other disposition of any assets or property of such Guarantor or a sale of
the Capital Stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved of any obligations under its Note Guarantee;
provided that the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this
Indenture, including without limitation Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers' Certificate
and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions
of this Indenture, including without limitation Section 4.10 hereof, the Trustee will execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations under its Note Guarantee.
(b) Upon Legal Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in
accordance with Article 11 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 will remain
liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 10.
ARTICLE 13.
satisfaction and discharge
Section 13.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(1) either:
(A) all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have
been delivered to the Trustee for cancellation; or
(B) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise or will become due and payable within one year and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in
such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the
entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and Additional
Interest, if any, and accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money
toward the payment of the Notes at maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to
subclause (b) of clause (1) of this Section, the provisions of Sections 13.02 and 8.06 will survive. In addition, nothing in this
Section 13.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture. The Collateral will be released with respect to the Notes only, as provided by Section 12.05 hereof,
upon a discharge of this Indenture in accordance with the provisions described in this Section 13.01.
Section 13.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 13.01 hereof
shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 13.01 hereof
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, the Company's and any Guarantor's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 13.01 hereof; 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 shall
be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the
Trustee or Paying Agent.
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIAss.318(c), the imposed duties
will control.
Section 14.02 Notices.
Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Company and/or any Guarantor:
X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxx, Esq.
If to the Trustee:
The Bank of New York
Corporate Trust Division
000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000/5707
Attention: Corporate Trust Administration
The Company, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar.
Any notice or communication will also be so mailed to any Person described in TIAss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or
not the addressee receives it.
If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same
time.
Section 14.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIAss. 312(b) with other Holders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIAss. 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take 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 (which must include the
statements set forth in Section 14.05 hereof) stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 14.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent
and covenants have been satisfied.
Section 14.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to TIAss. 314(a)(4)) must comply with the provisions of TIAss. 314(e) and must 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 or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
Section 14.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.
Section 14.07 No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as
such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Note
Guarantees or any Security Documents, or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 14.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 14.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 14.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind its successors. All agreements of the Trustee in
this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as
otherwise provided in Section 12.05.
Section 14.11 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 14.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
Section 14.13 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 of this Indenture and will in no way modify or restrict any of the
terms or provisions hereof.
Section 14.14 Waiver of Jury Trial
Each of the Company, the Guarantors and the Trustee hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of or relating to the Indenture, the Notes or the
transactions contemplated hereby.
[Signatures on following page]
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SIGNATURES
Dated as of September 29, 2003
X'XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President
and Chief Financial Officer
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President
and Chief Financial Officer
X'XXXXXXXX INDUSTRIES - VIRGINIA, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President
and Chief Financial Officer
X'XXXXXXXX FURNITURE FACTORY OUTLET, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President
and Chief Financial Officer
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
Corporate Trust Administration
[Face of Note]
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FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $950, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $50, THE ISSUE DATE IS SEPTEMBER 29, 2003 AND THE YIELD TO MATURITY IS 12.00% PER ANNUM.
CUSIP/CINS ____________
10.63% Senior Secured Notes due 2008
No. ___ $____________
X'Xxxxxxxx Industries, Inc.
promises to pay to or
registered assigns,
the principal sum of __________________________________________________________ DOLLARS on October 1, 2008.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Dated: September 29, 2003
X'Xxxxxxxx Industries, Inc.
By:
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
The Bank of New York,
as Trustee
By:
Authorized Signatory
---------------------------------------------------------------------------------------------------------------------------------------
[Back of Note]
10.63% Senior Secured Notes due 2006
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise
indicated.
(1) INTEREST. X'Xxxxxxxx Industries, Inc., a Delaware corporation (the "Company"), promises to pay interest on the
principal amount of this Note at 10.63% per annum from September 29, 2003 until maturity and shall pay the Additional
Interest, if any, payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Company will
pay interest and Additional Interest, if any, semi-annually in arrears on January 15 and July 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each, an "Interest Payment Date"). Interest on the
Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date
of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be January 15,
2004. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then
in effect; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any, (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) and Additional Interest,
if any, to the Persons who are registered Holders of Notes at the close of business on the January 1 or July 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be
payable as to principal, premium and Additional Interest, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of
interest and Additional Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if any, on, all Global Notes and all other Notes the Holders of
which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be 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.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any
of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated as of September 29, 2003 (the "Indenture") among
the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the TIA (15 U.S. Xxxxxx.xx. 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are secured obligations of the Company limited to $100.0 million in aggregate principal amount. The Notes are
secured by a pledge of the Capital Stock of the Company and substantially all of the assets of the Company and the
Guarantors pursuant to the Pledge and Security Agreement referred to in the Indenture.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph 5, the Company will not have the option to redeem
the Notes prior to October 1, 2006. On or after October 1, 2006, the Company may redeem all or a part of the Notes, upon not less
than 30 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount at maturity) set forth
below plus accrued and unpaid interest and Additional Interest, if any, thereon, to the applicable redemption date, if redeemed
during the twelve-month period beginning on October 1 of the years indicated below, subject to the rights of Holders of Notes on the
relevant record date to receive interest on the relevant interest payment date:
Year Percentage
2006............................................................................. 105.315%
2007 and thereafter.............................................................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to October 1, 2006, the
Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a
redemption price of 110.63% of the principal amount at maturity thereof, plus accrued and unpaid interest and Additional Interest, if
any, to the redemption date, with a contribution to the common equity capital of the Company made with the net cash proceeds of a
concurrent Equity Offering by X'Xxxxxxxx'x direct or indirect parent; provided that at least 65% in aggregate principal amount of the
Notes originally issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption and that such redemption must occur within 90 days of the date of the closing of
such Equity Offering.
(c) At any time prior to October 1, 2006, the Company may also redeem all or a part of the Notes upon the occurrence of
a Change of Control, upon not less than 30 nor more than 60 days prior notice (but in no event may any such redemption occur more
than 90 days after the occurrence of such Change of Control) mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount at maturity of Notes redeemed plus the Applicable Premium as of, and accrued
and unpaid interest and Additional Interest, if any, to the applicable date of redemption, subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant interest payment date.
(6) MANDATORY REDEMPTION.
Except as set forth under Sections 3.09, 4.10 and 4.15 in the Indenture, the Company will not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(A) If there is a Change of Control, the Company will be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the aggregate principal amount at maturity thereof plus accrued and unpaid interest and
Additional Interest thereon, if any, to the date of purchase subject to the rights of Holders of Notes on the
relevant record date to receive interest due in the relevant interest payment date (the "Change of Control
Payment"). Within 60 days following any Change of Control, the Company will mail a notice to each Holder setting
forth the procedures governing the Change of Control Offer as required by the Indenture.
(B) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, other than a sale of Note
Priority Lien Collateral, within five days of each date on which the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company will commence an offer to all Holders of Notes and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to
offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") pursuant to Section 3.09
of the Indenture to purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount at
maturity thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and other
pari passu Indebtedness to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" attached to the Notes.
(C) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales constituting a Note Priority
Lien Collateral, the Company will commence an Asset Sale Offer pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes that may be purchased out of the Net Proceeds at an offer price in cash in an
amount equal to 102% of the principal amount at maturity thereof plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date fixed for the closing of such offer, in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer
is less than the Net Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any purpose
not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes surrendered by holders
thereof exceeds the amount of Net Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company
prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may
be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes
or a satisfaction or discharge of the Indenture. Notes in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture, the Note Guarantees or the Notes
may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing Default or Event of Default compliance with any provision of
the Indenture, the Note Guarantees or the Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes voting as a single class. Without the consent of any Holder of a Note, the Indenture,
the Note Guarantees or the Notes may be amended or supplemented (i) to cure any ambiguity, defect or inconsistency, (ii) to
provide for uncertificated Notes in addition to or in place of certificated Notes, (iii) to provide for the assumption of
the Company's or any Guarantor's obligations to Holders of the Notes in case of a merger or consolidation, (iv) to make any
change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights under the Indenture of any such Holder, (v) to comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture under the TIA or to allow any Subsidiary to guarantee the Notes, (vi) to
make, complete or confirm any grant of Collateral permitted or required by the Security Documents or this Indenture or any
release of Collateral that becomes effective as set forth in the Security Documents or this Indenture, (vii) to conform the
text of the Indenture or the Notes to any provision of the "Description of Notes" section of the Company's offering circular
dated September 25 2003, relating to the initial offering of the Notes, to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the
Notes; or (viii) to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with
respect to the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days in the payment when due of interest on,
or Additional Interest with respect to, the Notes; (ii) default in the payment when due of the principal of or premium, if
any, on the Notes; (iii) failure by the Company to comply with Section 4.10, 4.15 or 5.1 of the Indenture; (iv) failure by
the Company or any of its Restricted Subsidiaries for 60 days after notice from the Trustee or Holders of at least 25% in
principal amount of the Notes then outstanding to comply with Section 4.07, 4.09 or any other covenant, representation,
warranty or other agreement in this Indenture or the Notes; (v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created after the date hereof, if that default: (a)
is caused by a failure to pay principal on such Indebtedness at final maturity (a "Payment Default"), or (b) results in the
acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $7.5 million or more; (vi) failure by the Company or any of its
Restricted Subsidiaries to pay final judgments aggregating in excess of $7.5 million, which judgments are not paid,
discharged or stayed for a period of 60 days; (vii) breach by the Company, any of its Restricted Subsidiaries or any other
Obligor of any material representation or warranty or agreement in the Security Documents, the repudiation by the Company,
any of its Restricted Subsidiaries or any other Obligor of any of their respective obligations under the Security Documents
or the unenforceability of the Security Documents against the Company, any of its Restricted Subsidiaries or any other
Obligor for any reason; (viii) except as permitted by this Indenture, any Guarantee shall be held in any judicial proceeding
to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor shall deny or
disaffirm its obligations under its Guarantee; and (ix) certain events of bankruptcy or insolvency with respect to the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that,
when taken together, would constitute a Significant Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal amount at
maturity of all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, the principal amount at maturity of all outstanding Notes
will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of, the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of
Default.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator or stockholder, of the Company or any of
the Guarantors, as such, will not have any liability for any obligations of the Company or such Guarantor under the Notes,
the Note Guarantees, the Indenture or Security Documents 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. The waiver and
release are part of the consideration for the issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will
have all the rights set forth in the Registration Rights Agreement dated as of September 29, 2003, among the Company, the
Guarantors and the other parties named on the signature pages thereof (the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices
of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee's legal name)
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
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 face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the
appropriate box below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$_______________
Date: _______________
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
Principal Amount
at maturity of this
Amount of decrease Amount of increase in Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
at maturity of at maturity of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
* This schedule should be included only if the Note is issued in global form.
EXHIBIT A2
[Face of Regulation S Temporary Global Note]
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FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $950, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $50, THE ISSUE DATE IS SEPTEMBER 29, 2003 AND THE YIELD TO MATURITY IS 12.00% PER ANNUM.
CUSIP/CINS ____________
10.63% Senior Secured Notes due 2008
No. ___ $____________
X'Xxxxxxxx Industries, Inc.
promises to pay to or
registered assigns,
the principal sum of __________________________________________________________ DOLLARS on October 1, 2008.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Dated: September 29, 2003
X'Xxxxxxxx Industries, Inc.
By:
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
The Bank of New York,
as Trustee
By:
Authorized Signatory
---------------------------------------------------------------------------------------------------------------------------------------
[Back of Regulation S Temporary Global Note]
10.63% Senior Secured Notes due 2008
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF X'XXXXXXXX INDUSTRIES, INC.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX)
("XXX"), 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 MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR SUCH OTHER ENTITY AS MAY BE 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.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933
(THE ""SECURITIES ACT ") AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE COMPANY, (II) IN THE U.S. TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE
U.S. IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (V) IN THE U.S. TO AN INSTITUTIONAL ""ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), IN A MINIMUM PRINCIPAL AMOUNT OF NOT LESS THAN $100,000,
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT
AND THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
IN THE FORM SET FORTH ON THE REVERSE HEREOF CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO RESTRICTIONS ON TRANSFER OF
THIS SECURITY OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S., AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise
indicated.
(1) INTEREST. X'Xxxxxxxx Industries, Inc., a Delaware corporation (the "Company"), promises to pay interest on the
principal amount of this Note at 10.63% per annum from September 29, 2003 until maturity and shall pay the Additional
Interest, if any, payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Company will
pay interest and Additional Interest, if any, semi-annually in arrears on January 15 and July 15 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each, an "Interest Payment Date"). Interest on the
Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date
of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be January 15,
2004. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then
in effect; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any, (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) and Additional Interest,
if any, to the Persons who are registered Holders of Notes at the close of business on the January 1 or July 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be
payable as to principal, premium and Additional Interest, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York, or, at the option of the Company, payment of
interest and Additional Interest, if any, may be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if any, on, all Global Notes and all other Notes the Holders of
which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be 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.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any
of its Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated as of September 29, 2003 (the "Indenture") among
the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the TIA (15 U.S. Xxxxxx.xx. 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are secured obligations of the Company limited to $100.0 million in aggregate principal amount. The Notes are
secured by a pledge of the Capital Stock of the Company and substantially all of the assets of the Company and the
Guarantors pursuant to the Pledge and Security Agreement referred to in the Indenture.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph 5, the Company will not have the option to redeem
the Notes prior to October 1, 2006. On or after October 1, 2006, the Company may redeem all or a part of the Notes, upon not less
than 30 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount at maturity) set forth
below plus accrued and unpaid interest and Additional Interest, if any, thereon, to the applicable redemption date, if redeemed
during the twelve-month period beginning on October 1 of the years indicated below, subject to the rights of Holders of Notes on the
relevant record date to receive interest on the relevant interest payment date:
Year Percentage
2006............................................................................. 105.315%
2007 and thereafter.............................................................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to October 1, 2006, the
Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a
redemption price of 110.63% of the principal amount at maturity thereof, plus accrued and unpaid interest and Additional Interest, if
any, to the redemption date, with a contribution to the common equity capital of the Company made with the net cash proceeds of a
concurrent Equity Offering by X'Xxxxxxxx'x direct or indirect parent; provided that at least 65% in aggregate principal amount of the
Notes originally issued under the Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption and that such redemption must occur within 90 days of the date of the closing of
such Equity Offering.
(c) At any time prior to October 1, 2006, the Company may also redeem all or a part of the Notes upon the occurrence of
a Change of Control, upon not less than 30 nor more than 60 days prior notice (but in no event may any such redemption occur more
than 90 days after the occurrence of such Change of Control) mailed by first-class mail to each Holder's registered address, at a
redemption price equal to 100% of the principal amount at maturity of Notes redeemed plus the Applicable Premium as of, and accrued
and unpaid interest and Additional Interest, if any, to the applicable date of redemption, subject to the rights of Holders of Notes
on the relevant record date to receive interest due on the relevant interest payment date.
(6) MANDATORY REDEMPTION.
Except as set forth under Sections 3.09, 4.10 and 4.15 in the Indenture, the Company will not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(A) If there is a Change of Control, the Company will be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the aggregate principal amount at maturity thereof plus accrued and unpaid interest and
Additional Interest thereon, if any, to the date of purchase subject to the rights of Holders of Notes on the
relevant record date to receive interest due in the relevant interest payment date (the "Change of Control
Payment"). Within 60 days following any Change of Control, the Company will mail a notice to each Holder setting
forth the procedures governing the Change of Control Offer as required by the Indenture.
(B) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, other than a sale of Note
Priority Lien Collateral, within five days of each date on which the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company will commence an offer to all Holders of Notes and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to
offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") pursuant to Section 3.09
of the Indenture to purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount at
maturity thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to the date fixed for the
closing of such offer, in accordance with the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and other
pari passu Indebtedness to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" attached to the Notes.
(C) If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales constituting a Note Priority
Lien Collateral, the Company will commence an Asset Sale Offer pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes and other pari passu Indebtedness that may be purchased out of the Net
Proceeds at an offer price in cash in an amount equal to 102% of the principal amount at maturity thereof plus
accrued and unpaid interest and Additional Interest thereon, if any, to the date fixed for the closing of such
offer, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of
Notes tendered pursuant to an Asset Sale Offer is less than the Net Proceeds, the Company (or such Restricted
Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes surrendered by holders thereof exceeds the amount of Net Proceeds, the Trustee shall
select the Notes to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may
be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes
or a satisfaction or discharge of the Indenture. Notes in denominations larger than $1,000 may be redeemed in part but only
in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture, the Note Guarantees or the Notes
may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then
outstanding Notes voting as a single class, and any existing Default or Event of Default compliance with any provision of
the Indenture, the Note Guarantees or the Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes voting as a single class. Without the consent of any Holder of a Note, the Indenture,
the Note Guarantees or the Notes may be amended or supplemented (i) to cure any ambiguity, defect or inconsistency, (ii) to
provide for uncertificated Notes in addition to or in place of certificated Notes, (iii) to provide for the assumption of
the Company's or any Guarantor's obligations to Holders of the Notes in case of a merger or consolidation, (iv) to make any
change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights under the Indenture of any such Holder, (v) to comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture under the TIA or to allow any Subsidiary to guarantee the Notes, (vi) to
make, complete or confirm any grant of Collateral permitted or required by the Security Documents or this Indenture or any
release of Collateral that becomes effective as set forth in the Security Documents or this Indenture, (vii) to conform the
text of the Indenture or the Notes to any provision of the "Description of Notes" section of the Company's offering circular
dated September 25 2003, relating to the initial offering of the Notes, to the extent that such provision in that
"Description of Notes" was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the
Notes; or (viii) to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with
respect to the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days in the payment when due of interest on,
or Additional Interest with respect to, the Notes; (ii) default in the payment when due of the principal of or premium, if
any, on the Notes; (iii) failure by the Company to comply with Section 4.10, 4.15 or 5.1 of the Indenture; (iv) failure by
the Company or any of its Restricted Subsidiaries for 60 days after notice from the Trustee or Holders of at least 25% in
principal amount of the Notes then outstanding to comply with Section 4.07, 4.09 or any other covenant, representation,
warranty or other agreement in this Indenture or the Notes; (v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created after the date hereof, if that default: (a)
is caused by a failure to pay principal on such Indebtedness at final maturity (a "Payment Default"), or (b) results in the
acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $7.5 million or more; (vi) failure by the Company or any of its
Restricted Subsidiaries to pay final judgments aggregating in excess of $7.5 million, which judgments are not paid,
discharged or stayed for a period of 60 days; (vii) breach by the Company, any of its Restricted Subsidiaries or any other
Obligor of any material representation or warranty or agreement in the Security Documents, the repudiation by the Company,
any of its Restricted Subsidiaries or any other Obligor of any of their respective obligations under the Security Documents
or the unenforceability of the Security Documents against the Company, any of its Restricted Subsidiaries or any other
Obligor for any reason; (viii) except as permitted by this Indenture, any Guarantee shall be held in any judicial proceeding
to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor shall deny or
disaffirm its obligations under its Guarantee; and (ix) certain events of bankruptcy or insolvency with respect to the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that,
when taken together, would constitute a Significant Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal amount at
maturity of all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, the principal amount at maturity of all outstanding Notes
will become due and payable immediately without further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of, the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of
Default.
(13) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator or stockholder, of the Company or any of
the Guarantors, as such, will not have any liability for any obligations of the Company or such Guarantor under the Notes,
the Note Guarantees, the Indenture or Security Documents 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. The waiver and
release are part of the consideration for the issuance of the Notes.
(15) AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(17) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES. In addition to the rights
provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will
have all the rights set forth in the Registration Rights Agreement dated as of September 29, 2003, among the Company, the
Guarantors and the other parties named on the signature pages thereof (the "Registration Rights Agreement").
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices
of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee's legal name)
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
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 face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the
appropriate box below:
Section 4.10 Section 4.15
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$_______________
Date: _______________
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global Note for an interest in another Global Note, or
exchanges in part of another other Restricted Global Note for an interest in this Regulation S Temporary Global Note, have been made:
Principal Amount
at maturity of this
Amount of decrease Amount of increase in Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
at maturity of at maturity of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Re: 10.63% Senior Secured Notes due 2008
Reference is hereby made to the Indenture, dated as of September 29, 2003 (the "Indenture"), among X'Xxxxxxxx Industries,
Inc., as issuer (the "Company"), the Guarantors party thereto and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer the Note[s] or interest in such Note[s] specified in
Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the "Transfer"), to
___________________________ (the "Transferee"), as further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive
Note pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in the Regulation S Temporary Global Note, the
Regulation S Permanent Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies
that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that
the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged
with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than the
Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend
printed on the Regulation S Permanent Global Note, the Regulation S Temporary Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
3. Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted
Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected
in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) such Transfer is being effected pursuant to an effective registration statement under the Securities Act
and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification
is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of transfer of less than $100,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the
effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted
Definitive Notes and in the Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted
Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: _______________________
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) IAI Global Note (CUSIP _________), or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) IAI Global Note (CUSIP _________), or
(iv) Unrestricted Global Note (CUSIP _________); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Re: 10.63% Senior Secured Notes due 2008
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of September 29, 2003 (the "Indenture"), among X'Xxxxxxxx Industries,
Inc., as issuer (the "Company"), the Guarantors party thereto and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $____________ in such Note[s] or interests (the "Exchange"). In connection with the Exchange, the
Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted
Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended
(the "Securities Act"), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is
being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the
Owner hereby certifies (i) the Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In
connection with the Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the
Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of the United States.
(d) Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive
Notes or Beneficial Interests in Restricted Global Notes
(a) Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an
equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In
connection with the Exchange of the Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE] 144A Global Note,
Regulation S Global Note, IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance
with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ______________________
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
X'Xxxxxxxx Industries, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxx Xxxx, XX 00000
Re: 10.63% Senior Secured Notes
Reference is hereby made to the Indenture, dated as of September 29, 2003 (the "Indenture"), among X'Xxxxxxxx Industries,
Inc., as issuer (the "Company"), the guarantors party thereto and The Bank of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate principal amount of:
(a) a beneficial interest in a Global Note, or
(b) a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions
and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer
the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the
Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act
to a "qualified institutional buyer" (as defined therein), (C) to an institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $100,000, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a
Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to
furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more
accounts (each of which is an institutional "accredited investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered
hereby.
[Insert Name of Accredited Investor]
By:
Name:
Title:
Dated: _______________________
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and
severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated
as of September 29, 2003 (the "Indenture") among X'Xxxxxxxx Industries, Inc., (the "Company"), the Guarantors party thereto and The
Bank of New York, as trustee (the "Trustee"), (a) the due and punctual payment of the principal of, premium and Additional Interest,
if any, and interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of
interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other obligations, that the same will 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 or
otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article 12 of the Indenture and reference is hereby made to the Indenture for the precise terms
of the Note Guarantee. Each Holder of a 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.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
[NAME OF GUARANTOR(S)]
By:
Name:
Title:
EXHIBIT H
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of ________________, 200__, among __________________ (the
"Guaranteeing Subsidiary"), a subsidiary of X'Xxxxxxxx Industries, Inc. (or its permitted successor), a Delaware corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture referred to herein) and The Bank of New York, as trustee
under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of
September 29, 2003 providing for the issuance of 10.63% Senior Secured Notes due 2008 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to
the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the
Company's Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the
Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the
terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 12
thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or
agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing
Subsidiary under the Notes, any Note Guarantees, the Indenture, the Security Documents or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is
against public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction
hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made
solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first
above written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
X'XXXXXXXX INDUSTRIES, INC.
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _______________________________
Authorized Signatory
